High Court Cases 

Evidence - Weight to be given to airport interview

Well-founded fear - Whether real chance test correct

Judicial review - Reasonableness - Challenge to credibility finding

Judicial review - Approach of High Court on judicial review

The plaintiff, a citizen of Syria, arrived in New Zealand in January 1998 and sought refugee status on the grounds of political persecution.  The Refugee Status Appeals Authority (RSAA) found that his narrative was a fabrication, holding that the crucial ingredients of his story were false.  In particular, the Authority was sceptical about a telegram evidencing instructions from the Syrian authorities to the effect that the plaintiff be arrested immediately for having left Syria illegally and requiring that all members of his family not be allowed to leave Syria.  This document had been received by the plaintiff in March 1998, six months prior to the first instance decision by the Refugee Status Branch of the New Zealand Immigration Service, but he had not produced the document to the Refugee Status Branch.  The RSAA did not, however, reject the evidence of a witness who stated at the appeal hearing that he had been present when the telegram had been delivered to the plaintiff on the relevant date as claimed by the plaintiff.  The RSAA dismissed the telegram on the grounds that it was handwritten.  The plaintiff also submitted a report by a New Zealand medical practitioner recording that the plaintiff's body showed evidence of past physical injuries consistent with trauma claimed to have been suffered by the plaintiff while detained by the Syrian authorities.  This report was not referred to in the Authority's decision.

Held:

1    The view of the RSAA that a relevant fear will be well-founded if there is a real chance of a refugee claimant being persecuted if returned to his or her country of nationality rightly conveys the notion of a substantial, as distinct from a remote, chance of persecution occurring whilst at the same time avoiding an erroneous concept of probability (see para [4]).

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) referred to.

2    The RSAA is a specialist tribunal operating in a difficult and developing area of jurisprudence.  It is familiar with the difficult circumstances arising at the port of entry interview after a long flight with attendant fatigue and unfamiliarity with the language of the interviewing border officer.  If a subsequent interview is conducted in custody, that fact will aggravate the consequences of fatigue, anxiety and alienation on the part of the applicant (see para [32]).

3    The RSAA had not expressly rejected the evidence of the witness who saw the telegram being handed to the plaintiff.  The Authority appeared to have accepted that the plaintiff had in fact received the telegram in March 1998 as claimed and was accordingly concerned not with the timing of the creation of the document, but the timing of its production in support of the appeal.  The Authority's rejection of the supporting witness' testimony, if it were rejected, was inconsistent with the Authority's apparent acceptance of the receipt of the document.  If, on the other hand, it were accepted, the witness' testimony as to the plaintiff's immediate and subsequent reaction on receiving the letter was persuasive as to the letter's authenticity.  If the document was received in March 1998, as the Authority appears to have accepted, scepticism about the coincidences concerning the way the letter reached the plaintiff seemed unjustified.  Indeed some of the scepticism was difficult to accept in any event.  In particular, the Authority's assessment of the document as handwritten was manifestly wrong.  The body of the document was a mechanically printed form.  In addition the fact that the plaintiff failed to produce the documents, which the Authority characterized as "crucial to his claim" at an earlier time, increases rather than diminishes the likelihood that the document was genuine.  Once it was accepted, as it seems to have been, that the document had been in the possession of the plaintiff for many months before the decision declining refugee status was made, the proposition that the documents were concocted in order to enhance his prospects of being recognized as a refugee was untenable.  It assumed that they were deliberately forged so that he could use them to enhance his claim to refugee status, yet having them in his possession and available for the purpose, he did not use them in support of his application.  The failure to use the documents supports his statement that he did not realize their significance in terms of his application until a much later stage.  The Authority had also failed to have regard to, notwithstanding its significance, the uncontradicted medical evidence detailing the extensive scarring on the plaintiff's body (see paras [33], [34], [35] & [36]).

4    While the Authority rejected aspects of the plaintiff's case, there was still an issue whether the remaining evidence of the plaintiff, if accepted, was sufficient to bring him within the terms of the Refugee Convention.  It seemed that the view the Authority took as to the veracity of the plaintiff on certain aspects of his evidence led it to reject the plaintiff's entire narrative as a fabrication.  If this was not the case, the Authority had not adequately identified and evaluated the evidence it did accept.  It is axiomatic that the plaintiff's claim should be assessed on the basis of what facts are found, and not on the basis of what evidence is rejected (see para [38]).

5    The Authority could not reasonably disregard everything the plaintiff had said in the light of the clear evidence of past physical injuries consistent with torture.  Further, the plaintiff's anxiety about returning to Syria was consistent with knowledge the Authority had of the criminal nature and consequences of illegal exit.  The Authority's view that the purported telegram was handwritten was wrong and its conclusion that such a document would not likely be an official document for the stated purpose was affected in consequence (see para [39]).

6    In a case such as this where the consequences of a wrong decision could be persecution of a most grave and inhumane nature, a reviewing court should look at an impugned decision with great care.  Whilst according the Authority the respect due to a learned and experienced tribunal, and being conscious that the proceedings are for judicial review and not by way of appeal, it was impossible to accept that the Authority had no credible evidence which could justify its holding that the plaintiff may have had a well-founded fear of persecution if he were to return to Syria.  He took a plainly wrong view about the physical character of the telegram and its view significantly coloured its evaluation of the plaintiff's evidence, with the result that it failed rationally to examine whether on the basis of probability, there was sufficient in the principal grounds advanced by the plaintiff to bring him within the terms of the Convention (see para [40]).

Decision set aside.  Matter remitted to RSAA for hearing.

Other cases mentioned in judgment

[No other cases were mentioned]

Counsel

C J Tennet and M Bell for the plaintiff
M A Woolford for the second defendant

ANDERSON J [1] The plaintiff, now aged about 30, is a Syrian national. In January 1998 he arrived in New Zealand on an aeroplane flight from England, and claimed refugee status. He was detained under a warrant of commitment in Mt Eden Prison, where, after approximately two weeks, he was interviewed by the Refugee Status Branch of the Immigration Service ("RSB"). When, in due course, the RSB declined the plaintiff's application for refugee status, the applicant appealed to the Refugee Status Appeals Authority. The appeal was heard on 23 February 1999 and dismissed in a written decision dated 12 August 1999. The plaintiff seeks judicial review of that decision. In this proceeding the Refugee Status Appeals Authority abides the decision of this Court. An order was made on an application by the Attorney-General to be joined as a second defendant.

[2] Although it makes no practical difference to this Court's consideration of the plaintiff's application, it may be noted that at the time it heard and determined the plaintiff's appeal the Refugee Status Appeals Authority was operating under the prerogative powers of the Executive in accordance with the Rules Governing Refugee Status Determination Procedures. Since 1 October 1999 the Authority has operated on a statutory basis pursuant to Part VI(A) of the Immigration Act 1987.

[3] The New Zealand procedures for dealing with refugees respond to the 1951 Geneva Convention on the Status of Refugees and the 1967 Protocol. In terms of Article 1A(2) of the Convention as amended by the 1967 Protocol, the term "refugee" applies to any person who:-

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

The evidential basis of the plaintiff's case before the Authority

[5] The evidence before the Refugee Status Appeals Authority took a number of forms. There was oral testimony from the plaintiff who was examined by his counsel and by members of the Authority. There was a document recording the initial interview of the plaintiff at the airport by New Zealand Immigration Service on 17 January 1998. There was also the form and answers in respect of an application for refugee status in New Zealand relating to the New Zealand Immigration Service interview of the plaintiff at the airport. A further interview was conducted on 2 February 1998 by the Immigration Service and a written record of that interview was available. An eight page interview report by the Refugee Status Branch, dated 5 February 1998, was provided to solicitors instructed on behalf of the plaintiff and that document was before the Authority. A written statement by the plaintiff in support of an application for refugee status was subsequently provided. The plaintiff's legal advisors arranged for a medical examination of their client, who was interviewed by a doctor on 20th, 23rd, and 27th March 1998. That doctor provided a written report to the plaintiff's advisors early in April 1998. On 23 April 1998 the plaintiff's lawyers sent an eight page written submission to the Branch Manager of the Refugee Status Branch enclosing the plaintiff's statement in support of his application for refugee status, as well as the report of the doctor who had been instructed on behalf of the plaintiff.

[6] According to the interview report sent by the Refugee Status Branch to the plaintiff's solicitors, the plaintiff was a single man aged 28 and a citizen of Syria where his mother, brother and sister remain. He said he had another brother in prison. The report notes that the plaintiff is a graduate of the Institute of Statistics and has completed military service. He is a Sunni Muslim and although not a member of a political party supports the Nasserite party. The plaintiff apparently advised the interviewing officer that he had a brother who was imprisoned as a member of the Muslim Brotherhood when the plaintiff was very young. He talked about his activities in support of the Nasserite party. Explaining the circumstances of his leaving Syria, the plaintiff said that if he had money and assets he would have stayed in his own country and not applied for refugee status. He said that he had applied for an exit visa in about September or October 1997 and when this was declined he swore against the Government, leading to the police being called. He said he first applied for a passport in February 1997 and was turned down by the Secret Service due to a black mark on his file as he was not a member of the Ba'ath Party and his brother was in jail. By dint of bribery he succeeded in obtaining a passport later in 1997. He said he had applied for a passport due to pressure from the Ba'ath Party and because of financial and social pressure. He explained that on one occasion he had been tortured for two or three days. There was an occasion when he had blasphemed against a small religious sect called the Murshidene, the members of which traditionally seek revenge by killing those who blaspheme against them. He explained that not even the police can stop them in this activity. The circumstances came about when the plaintiff was working in a hotel and had declined to give an elderly man a discount, leading to the plaintiff ejecting him from the hotel. The elderly man, apparently a member of the Murshidene sect, asked whether the plaintiff was blaspheming against him and later people came to the hotel asking about the plaintiff. He said that in 1983 and 1984 while a school student he had been taken away by political security for a few days and beaten because of his refusal to join the Ba'ath Party. Whilst a student at the Institute of Statistics he was also detained for the same reason. He told the interviewing officer that during his military service he was beaten for not being a member of the Ba'ath Party; that he had served in Lebanon and saw a lot of pictures of dismembered bodies and therefore he deserted. Having been arrested for desertion he was imprisoned for nine months in Tadmor Prison, which is internationally notorious for its executions and persecutions of prisoners. He said that he was put in a tyre and whipped and when subsequently released was required to complete his military service.

[7] In another incident at the hotel he let a room to a couple who did not have a family book in respect of their status. The plaintiff said he was arrested, beaten and detained for this irregularity.

[8] After running away from the visa office the plaintiff stayed with a friend on the outskirts of the city where he lived and then travelled to nearer the border. He communicated with his family who informed him that the Secret Police had been looking for him and he decided he had to leave Syria. He contacted a neighbour and together they collected money from friends. With assistance near the border they crossed into Turkey illegally on foot and then took a car to Ankara where they stayed for between 20 and 25 days before flying to Scotland on false documentation. After about 12 or 13 days they went to London where they stayed for a few days before flying to New Zealand on false Dutch passports.

[9] The report noted concerns about possible inconsistencies in the plaintiff's information about his brother's political activities and the timing in respect of his insulting the Murshidene and his obtaining a passport.

[10] The report contained relevant country information, including the necessity for Syrian citizens to have Government permission for travelling abroad and amenability to prosecution for attempting to leave without official permission, but noted that there was no evidence that the Government persecuted upon their return those who applied for but were denied asylum abroad. The interviewing officer recorded three reasons for the plaintiff's stating that he could not return to Syria. These were that he was wanted; that he had no passport; and that he was applying for asylum, such being enough to "wipe his family off the earth".

[11] The plaintiff's statement submitted under cover of his solicitor's lengthy response to the report of the Refugee Status Branch expands upon incidents of persecution. The plaintiff described a detention of him when he was 16 as involving his being forced into a tyre so his arms and legs could not move and physical assaults upon him and threats to him. He said that in 1987 when he applied to the Institute of Statistics the Secret Police took him to a Detention Centre where he was kept for five months. He says that he was threatened and questioned as to why he had not joined the Ba'ath Party and that the Secret Police knew about his brother, Mahmood, who had been taken by the authorities and probably killed in 1979 or 1980 because of his involvement with the prohibited Muslim Brotherhood movement. He again described a form of torture involving constriction inside a tyre and beating. After joining the army he was persecuted for failing to join the Ba'ath Party and on occasions was again put into the tyre. In 1990 he was sent to Lebanon where he says he "saw thousands of people killed during that time including many Syrian soldiers". He deserted but was arrested about a month later and sentenced to imprisonment at Tadmor Prison where he says he was beaten every day. In 1995-96 he worked at a supermarket where he was subjected to constant visits from the Secret Police who would demand free food and try to intimidate him. In 1996 he worked at a hotel where he was often taken away during raids by the Secret Police and on one occasion had his hair cut short to humiliate him. Describing the incident at the visa office, he said that when his application was rejected he became angry and got into an argument, during which he told the authorities exactly what he thought about the Syrian Government. When officials tried to detain him he fought them off and escaped. He concluded his statement with the words:-

I am afraid that I will be killed or persecuted if I return to Syria because I have continued to speak out against the Government. I have suffered so much because of my beliefs, and am really afraid that if they catch me this time they will silence me forever.

Decision of the Refugee Status Branch

[13] The Refugee Status Branch issued its decision in writing on 30 October 1998. It noted that the plaintiff generally answered all questions put to him clearly and in some detail when required, with few hesitations, but that there were many discrepancies in his testimony. It said that explanations given were that the conditions during the interview conducted in Mt Eden Prison were far from ideal. The Branch gave the plaintiff the benefit of the doubt as to areas easily explained but considered that he had embellished his claim in certain areas. The decision accepted that the plaintiff had suffered past persecution including abhorrent treatment on two occasions, whilst he was a student, for not being a member of the Ba'ath Party. The treatment included severe beatings and the administration of electric shocks. The plaintiff later became associated with the Nasserite Party which is a legal entity within the National Progressive Party. The plaintiff's arrest and imprisonment for desertion involved poor physical treatment and feeding, but this was a uniform response to desertion. The Branch considered that the plaintiff's fear of persecution was not well founded. It was accepted that he had faced past persecution for his non membership of the Ba'ath Party during his time as a student and had suffered severe treatment in prison for desertion. Since then, however, he had had poor employment opportunities, had been threatened by a revengeful religious sect, and had eventually left Syria illegally. None of the recent events were considered in the nature of persecution or indicative of a real chance of future persecution.

Proceedings before the Refugee Status Appeals Authority

[14] The plaintiff appealed the unfavourable decision of the Refugee Status Branch. On 23 February 1999 the plaintiff appeared before the Authority together with his then counsel.

[15] The essential elements of the plaintiff's case before the Authority were as follows:-

[a] In about 1979 or 1980, when the plaintiff was a child, one of his brothers was taken away by the Secret Police and never heard of again. That timing is consistent with a ruthless repression by the Syrian authorities of adherence to the so-called Muslim Brotherhood.

[b] When he was a student the plaintiff was detained, beaten and humiliated on occasions by the authorities, who knew of his brother, and who persecuted him for not becoming a member of the Ba'ath Party.

[c] The plaintiff deserted from the army and in consequence was arrested and imprisoned for nine months, during which time he was subjected to the type of ill-treatment with which prison inmates in Syria are apparently familiar.

[d] He subsequently worked in a supermarket which was subjected to corrupt and oppressive action by the Secret Police.

[e] He later worked in a hotel which was subjected to official attention in consequence of citizen control by the authorities and was persecuted for transgressing in relation to documentation.

[f] The plaintiff fell foul of an elderly man who was or purported to be a member of a vengeful sect.

[g] The plaintiff had difficulties obtaining an exit visa and angrily and publicly defamed the Government and/or authorities at the Visa office, leading to the police being called.

[h] The plaintiff left the country illegally without permission and if he were returned to Syria he would be punished for that act.

By the name of Alla the most merciful and gracious

May peace and mercy be upon you,

My dear brother K I send you this letter while I am risking the life of my husband, children and mine. This is to inform you as soon as possible of what is happening to us in Syria. I tried several ways to send you this letter and you know that letters are opened in Syria.

I went to your aunt in Damascus to help us finding a way to send it. She told me that she knows a Lebanese family living in Beirut, who has a son in Austria and an other one in New Zealand. She called them and they informed her that their son in Austria is coming to Lebanon within several days. I waited at the house of your aunt in Damascus until he arrive to Beirut. I went to Beirut and asked him to send this letter via Austria to New Zealand at the address of his brother AO. We know from his family that the Syrian community in New Zealand is small and he can find you there easily.
 
Dear brother K, when you receive this letter safely by Alla's will, I want you to know that your life is extremely in danger. They have taken your brother several times and interrogated him asking him about you. The attached telegram I am sending you along with this letter, my husband has arranged to get it from one of the officers, who is working at the Turkish boundaries. He paid him some money to know the reason behind this continuous interrogation about you. The officer gave him secretly the branch telegram. My brother K, please be careful about your life, and be close to Alla by continuous praying to Alla.

Your Sincere Sister

Date 7-2-1998

Syrian Arab Republic

The General Security Department

Branch:
Number:
Date:
 
Urgent Telegram

To all Land, Sea and air entry boundaries

Name of the person:

His Mother's name:

Place of Birth:

This telegram is issued based upon document number:

The above mentioned person is to be arrested immediately as soon as he passes in or out through any boundary centers, this is because he has left the country illegally. Furthermore, all his family members are absolutely not to be allowed to leave the country.

The Director of the General Security Department

[19] The letter was contained in an envelope with an Austrian postmark dated 10 March 1998. The letter was said to have been forwarded to the New Zealand resident son of the Lebanese family in Beirut and reached the plaintiff by way of a communication between that son and a member of the same Mosque attended by members of the small Auckland Syrian community. That associate testified that he introduced the plaintiff to the New Zealand resident's son and saw the plaintiff being given a letter in approximately April 1998. He said that after the plaintiff received this letter his life changed, with the plaintiff exhibiting fear by shaking and shivering and extreme distress. He took the plaintiff to an emergency centre for psychiatric assessment.

[20] In the course of the hearing the Authority examined the plaintiff's evidence about Tadmor Prison with reference to information, including a sketch attributed to a former inmate of that prison and published by a Human Rights organisation. The Authority also examined him extensively about the grounds he had advanced at various times in support of his claim to refugee status.

The Authority's decision

[21] The Authority prefaced its evaluation of the plaintiff's evidence with the following remarks:-

The Authority has considered very carefully this appellant's case as it is aware, both from the country information and from previous appeals it has heard, that the consequences of returning someone to Syria if the Authority is wrong are harsh indeed. The country information and decisions such as M's decision (Refugee Appeal No. 2416/95.) refer to the Syrian police and security forces continuing to use torture systematically and a significant number of political detainees being held without charge. For this reason, the consequences of an adverse credibility finding for a person from a country such as Syria, may well be grave. The Authority would be hesitant to find that there was no substance even to the core of an appellant's account and reject it in total.

Put bluntly, we do not, for the reasons stated, believe him. There is no credible evidence which justifies our holding that the plaintiff has a well-founded fear of persecution if he returns to Syria. The crucial ingredients of his story on which he relies are false. We entertain no doubt on that score.

The Authority finds that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed.

[24] The Authority was sceptical about the evidence of the sister's letter and copy telegram, considering the narrative to be full of coincidences to the extent of incredibility.

[25] The Authority was particularly sceptical about the telegram. It considered the most remarkable thing about the telegram to be that it was handwritten. The Authority was concerned that the plaintiff had not produced these documents when they were received but only after the application for refugee status had been formally declined. The Authority was clearly not prepared to accept the telegram as genuine. It was not prepared to believe that a letter posted in Vienna and addressed to the New Zealand resident's son would reach the plaintiff through a chance meeting of a mutual acquaintance at a Mosque.

[26] Nor was the Authority prepared to believe that the plaintiff had actually deserted the army. He had explained how he simply changed into civilian clothes, went into the street and took a taxi from Beirut. It considered that he appeared to have very little knowledge and information about Tadmor Prison except for the fact of inhumane treatment, for which that prison was notorious anyway. They entirely rejected his evidence as to spending time in that prison.

[27] The Authority found discrepancies about times and dates and considered it a significant omission on the part of the plaintiff that he had failed to mention any ill-treatment, torture or otherwise in his interview at the airport or when completing his application for refugee status. They considered that he had embellished his claim and that his version of events, particularly in relation to the accounts of his treatment, had become more and more elaborate and the torture more severe over the year or so that he had been in New Zealand. Notwithstanding the plaintiff's mental health, state of anxiety, and possible post traumatic stress disorder, the Authority considered that its examination of the plaintiff was not impeded by mental disturbance.

The claim for judicial review

[28] The grounds advanced on behalf of the plaintiff for a review of the Authority's decision amount, in summary, to the following:-

[1] The Authority failed to take into account relevant considerations, namely:
 
[i] Difficult physical and administrative circumstances attending the interview of the plaintiff at Mt Eden Prison by the officer of the Refugee Status Branch.

[ii] The need to assess credibility with an appreciation of the plaintiff's distressed and depressed mental state.

[iii] The effect on the plaintiff of the fact that he was bailed and facing Court proceedings for some time during 1998.
 
 

[2] The Authority's findings which led it to the conclusion that the plaintiff was not credible, and consequently that conclusion itself,  were unreasonable, as that term is understood in the jurisprudence of judicial review.

[30] The first major ground, alleged failure to take into account relevant considerations, was developed by counsel for the plaintiff as if the alleged omissions went to the legality rather than the rationality of the decision. There was no legal requirement for the Authority to take into account the particular matters asserted by the plaintiff, except insofar as those matters might bear on the reasonableness of the Authority's decision. The plaintiff's case is accordingly, when properly analysed, entirely a case of alleged irrationality.

[31] The various arguments on behalf of the plaintiff must be drawn together for examination in terms of the rationality or otherwise of the Authority's ultimate decision that the plaintiff did not have a well founded fear of persecution because the crucial ingredients of his story on which he relied were false.

Observations on principal ground (1) of submissions on behalf of plaintiff

[32] The Refugee Status Appeals Authority is a specialist tribunal operating in a difficult and developing area of jurisprudence. It is familiar with the difficult circumstances arising at the port of entry interview after a long flight with attendant fatigue and unfamiliarity with the language of the interviewing border officer. If a subsequent interview is conducted in custody, that fact will aggravate the consequences of fatigue, anxiety and alienation on the part of the applicant. Having regard to those considerations and the information before the Authority, as well as the transcript, I take the view that the submissions under this head simply cannot be substantiated. The decision itself makes specific reference to the information about the plaintiff's mental state and there is just no cogency in the other submissions under this head.

Whether the Authority's decision was irrational

[33] A consideration of the Authority's decision indicates that the Authority's view that the plaintiff was not credible was significantly coloured by its findings in connection with the border telegram. The Authority considered it remarkable that the telegram was handwritten, believing that if it was a document to be sent to border posts it would have been printed or typewritten. The tenor of the document was considered with scepticism by the Authority in conjunction with its view that the document was handwritten. The Authority also appeared to consider the document spurious because it was not produced to anyone in support of the plaintiff's claim for refugee status until after the decision of the Refugee Status Branch was delivered some six months or so after the letter was said to have been received. The testimony of a witness on behalf of the plaintiff concerning the actual receipt of a letter by the plaintiff after introduction to that witness' acquaintance at the Mosque was not specifically addressed in the Authority's decision. Perhaps the Authority did not believe that witness, although the decision does not say so. Yet the Authority appears to accept that the plaintiff did in fact receive the letter and enclosed document in March 1998, consistent with the postmark on the envelope, and accordingly the Authority was concerned not with the timing of the creation of the documents but the timing of their production in support of the appeal. The Authority's rejection of the supporting witness' testimony, if it were rejected, is inconsistent with the Authority's apparent acceptance of the receipt of the letter. If, on the other hand, it were accepted, the witness' testimony as to the plaintiff's immediate and subsequent reaction on receiving the letter is persuasive as to the letter's authenticity.

[34] If the documents were received in March 1998, as the Authority appears to accept, scepticism about the coincidences concerning the way the letter reached the plaintiff seem unjustified. Indeed some of the scepticism is difficult to accept in any event. For example, the Authority thought it implausible that a letter would be sent from Vienna to a person in Auckland in the hope that it might get to the plaintiff. Yet the Syrian community in Auckland must be very small and in common with expatriates everywhere social connections could or might likely be made in the context of cultural activities significant for the expatriate group. There is a sufficient chance of a letter sent in the way it was reaching its intended recipient as to render the plaintiff's explanation in this respect plausible rather than implausible, and the fact of the matter appears to be that a letter and the alleged telegram were in fact received via Vienna. It is also a fact that the purported telegram bears what seems to be an official stamp and has the appearance of a printed form. This Court has called for and visually examined the "telegram" which the Authority had before it. The linearity of the script, other than the handwritten entries in the various fields, and the exact regularity of the characters, show that the body of the document is a mechanically printed form. The Authority's assessment of the document as "handwritten" is manifestly wrong. Further, on any reasonable approach, the fact that the plaintiff failed to produce the documents, which the Authority characterised as "crucial to his claim" at an earlier time, increases rather than diminishes the likelihood that the documents are genuine.

[35] Once it is accepted, as it seems to have been, that the documents were in the possession of the plaintiff for many months before the decision declining refugee status was made, the proposition that the documents were concocted in order to enhance his prospects of being recognised as a refugee is untenable. It assumes that they were deliberately forged so that he could use them to enhance his claim to refugee status, yet having them in his possession and available for that purpose he did not use them in support of his application. That failure to use the documents supports his statement that he did not realise their significance in terms of his application until a much later stage. Their inherent significance to his application may be limited because, as the information held by the Refugee Status Branch shows, it is an offence for Syrian citizens to leave their country without official permission and transgressors are liable to imprisonment for so doing. The Authority's scepticism that information relating to family appeared on the document is, again, difficult to justify. If a citizen were to leave the country, other members of his or her family might seek to do the same in order to join that person abroad, and accordingly the type of information appearing on the purported telegram is inherently likely rather than unlikely.

[36] Another area of concern to the Authority was the apparently limited knowledge the plaintiff had of the notorious Tadmor Prison. He was questioned by the Authority in relation to a drawing appearing in a publication by Human Rights Watch Middle East, April 1996, Vol 8, No.2(E). That publication attributes a sketch or sketches of Tadmor Prison to a former prisoner but it is not otherwise verified. The Authority appeared to accept the sketch as authoritatively accurate and accordingly any different view by the plaintiff was indicative of his not ever having been in that prison. What the Authority does not seem to have regard to because, notwithstanding its significance, it is not mentioned anywhere in the Authority's decision, is the extensive scarring on the plaintiff's body. The uncontradicted medical evidence is that such scarring is consistent with cigarette burning, whipping and beating.

[37] The aspects of the plaintiff's case which the Authority rejected as untrue seem to be:-

[1] The authenticity of the telegram and the narrative concerning its transmission to New Zealand and receipt by the plaintiff.

[2] The plaintiff's evidence of deserting from the army.

[3] The plaintiff's evidence of spending time at Tadmor Prison.

[4] The plaintiff's evidence about a friend being killed whilst in the army.

[5] The extent of any torture suffered by the plaintiff.

[39] In my opinion, with respect, the Authority could not reasonably disregard everything the plaintiff had said in the light of the clear evidence of past physical injuries consistent with torture. Further, the plaintiff's anxiety about returning to Syria is consistent with knowledge the Authority had of the criminal nature and consequences of illegal exit. The Authority's view that the purported telegram is handwritten is wrong and its conclusion that such a document would not likely be an official document for the stated purpose is affected in consequence.

Conclusion

[40] In a case such as this where the consequences of a wrong decision could be persecution of a most grave and inhumane nature, a reviewing Court should look at an impugned decision with great care. Whilst according the Authority the respect due to a learned and experienced tribunal, and being conscious that these proceedings are for judicial review and not by way of appeal, I find it impossible to accept that the Authority had no credible evidence which could justify its holding that the plaintiff may have had a well founded fear of persecution if he were to return to Syria. It took a plainly wrong view about the physical character of the "telegram" and its view significantly coloured its evaluation of the plaintiff's evidence, with the result that it failed rationally to examine whether on the basis of probability there was sufficient in the principal grounds advanced by the plaintiff to bring him within the terms of the Convention. The decision is accordingly quashed and the matter remitted to the Authority for a rehearing.

[41] Costs are reserved.

Solicitors for the plaintiff: Marshall Bird & Curtis (Auckland)
Solicitors for the second defendant: Crown Solicitor (Auckland)