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Tishkovets v Refugee Status Appeals Authority
 
High Court Auckland M 1131-SW00
10 August 2000; 17 August 2000
Salmon J

Judicial review - reasonableness - challenge to finding of fact

The facts are more fully set out in the head note to Tishkovets v Minister of Immigration (High Court Auckland, M632-SW00, 1 May 2000, Salmon J).

Following the refusal of his third application for habeas corpus the plaintiff commenced proceedings by way of judicial review challenging the decision of the Refugee Status Appeals Authority (RSAA) delivered on 8 July 1999 dismissing his application for refugee status.  It was submitted that the RSAA had made a wrong finding of fact, namely that the evidence showed clearly that there had been no breakdown of law and order in Tajikistan.

Held:

1.    It was not possible to say that there was no evidence before the RSAA (see para [25]).

2.    The real issue in the case was whether the finding that the harassment and difficulties suffered by the plaintiff reached the level of persecution.  On the evidence, the view taken by the RSAA that the harassment suffered by the plaintiff did not rise to the level of persecution was one that was open to it and there was evidence that State protection was available (see paras [28], [31] & [33]).

Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 (HL) referred to.

Application for Review dismissed
 
Other cases mentioned in Judgment

Khalon v Attorney-General [1996] 1 NZLR 456 (Fisher J)

Counsel

D Ryken and D Manning for the plaintiff
M A Woolford for the defendants

[Editorial Note:  On the previous day the warrant of commitment had been extended by the District Court, see McAlpine v Tishkovets [2000] NZAR 638 (Harvey DCJ).  For an earlier challenge (unsuccessful) to the detention of the plaintiff in custody, see Tishkovets v Minister of Immigration (No. 3) [2000] NZAR 505 (Salmon J); [2000] NZAR 505.  Two days before the hearing in the High Court of the challenge to the Refugee Status Appeals Authority decision the New Zealand Immigration Service applied under s 128(13B) of the Immigration Act 1987 for a further extension of the warrant of commitment.  In a decision delivered on 16 August 2000 Harvey DCJ granted the application and rejected the argument by Mr Tishkovets that his detention was unlawful because it was not practicable to remove him.  It was further held that Article 31 of the Refugee Convention can only apply when the asylum-seeker comes directly from the country from which asylum was sought.  Mr Tishkovets did not fulfil this requirement as he had applied for refugee status after his involuntary return from Moscow rather than by way of flight from Tajikistan.  The District Court Judge was also of the view that the detention did not constitute a penalty under Article 31 because it did not result as a consequence of Mr Tishkovets seeking refugee status.  It arose as a result of an administrative decision following his unlawful entry to New Zealand.  However, the District Court Judge observed that s 128 of the Act did not authorise indefinite detention.  Mr Tishkovets had been in custody for over seven months.  From a humanitarian perspective, some timeframe should be put in place with a view to a release from custody subject to such restraints as were  necessary to ensure that Mr Tishkovets could be easily located in the event his departure from New Zealand was required:  McAlpine v Tishkovets [2000] NZAR 638 (Harvey DJ).]

SALMON J  [1] In these proceedings the plaintiff seeks to review a decision of the Refugee Status Appeals Authority made on 8 July 1999.  In that decision the Authority concluded that the appellant had no Convention ground entitling him to refugee status and that status was declined.  The Authority dismissed Mr Tishkovets' appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service, which had also declined the grant of refugee status to the plaintiff.

[2] On 31 July last, Cartwright J. made an interim order restraining the removal of the plaintiff from New Zealand pending the hearing of the substantive proceeding.  The first defendant abides the decision of the Court.

Background

[3] The plaintiff arrived in New Zealand on 9 February 1999.  Because he had been travelling on false documentation he was detained in custody.  He made an application for refugee status at the time of his arrival.  That was declined on 18 February 1999.  His appeal was heard on 23 March 1999.

[4] The defendant takes no issue concerning the delay in bringing this application which was explained by saying that previous counsel had apparently failed to advise the plaintiff that such a procedure was open to him.  The plaintiff is presently in custody.

[5] This application must be decided on the facts as found by the Appeals Authority.  The following passages are taken from the decision of the Authority.

[6] The basis for the appellant's claim was that he feared persecution by reason of his race, which was ethnic Russian, and/or his religion (Russian Orthodox).  His claim was that the native Tajiks, who are Muslim, persecuted the appellant by reason of his Russian origin and Christian religion.  The Appeals Authority describe the appellant's claims under various headings set out in its decision.  The facts there set out may be summarised as follows.  The appellant was a mechanic for ten years, until November 1998.  He was employed in a factory which in 1990 employed about 150 workers.  By 1998 that figure had dropped to about 40.  He says that starting from the beginning of 1998 he was physically and verbally abused by Tajik members of the workforce.  He says he was beaten by a particular fellow workmate several times a week and that the abuse and the beatings took place after work when the workers were affected by drink.  The workers apparently fought amongst themselves as well.  The abuse took the form of ridiculing his Russian origin and saying that Russians should get out of Tajikistan.  Apparently the abuse started at a time when most of the Russians working in the factory had left.  He said he went to his boss about three times to complain about the treatment and conceded that his boss did his best to keep order.  He said he suffered bruises and lacerations, but did not receive any medical treatment, other than self-administered disinfectant and bandages.

[7] His second complaint was of abuse on the way to and from work.  Apparently this took the form of children throwing sticks and stones at him, although he was able to avoid this if he took a longer route to work.

[8] On 17 November 1998 he was made redundant.  He was told by the management that this was part of a redundancy programme and he received one week's notice.  He could not find any other employment in his town.  When asked if he considered going anywhere else to look for work he said that he wanted to stick with his friends, the majority of whom were unemployed.  He worked around the house which he had inherited from his father, who along with his mother had died a number of years previously.  Apparently there had been one other factory in town, but it had closed down.

[9] During his period of unemployment, when he was spending most of his day time at his friend's place, his house was burned down.  A neighbour ran to his friend's house and told him his house was on fire.  When he got there, he and friends put the fire out.  There was no fire brigade in the town.  There were several petrol canisters lying around.  The appellant said he suspected his house had been set on fire by a Tajik workmate who had been one of the leaders of the group that picked on him at work because this man had once told him they would smoke him out.  Apart from this suspicion of the ex workmate there was no evidence linking him with the fire.  He reported the fire to the police.  It seems there was just one policeman in the town.  The policeman said he could not help him, but gave him paper and told him to write a statement if he wished to lay a complaint of arson.  The policeman said he would have to show the paper to the named suspect and the plaintiff would have to deal with the suspect's reaction.  Nothing further was done about the matter.

[10] The appellant was able to salvage some of the contents of the house which he sold.  He was not able to sell the house itself because there were too many empty houses in the town which nobody wanted.

[11] The Authority then records that the appellant decided to try his luck elsewhere and he left his town in mid December 1998.  He travelled to the capital of Tajikistan where he met other Russians.  Apparently they told him that "they" would shoot the Russians in the street and he was advised to go to Russia.  He then travelled to Moscow where he stayed for about three weeks, and obtained employment on construction sites.  He says that because he had no papers and could not obtain replacement ones he decided to leave Moscow.  He went to a port city, stowed away on a cargo ship and eventually arrived in England.

[12] The Authority recorded that the plaintiff had never applied, nor made any effort to replace his papers.  When asked why he had left Tajikistan he said that it was because he could not live there any more and he would have been killed, and that the reason why he would have been killed was because he was a Russian and a Christian.

[13] When it was put to him that neither he nor any of' his friends had in fact been killed he responded:

The Authority's Decision

[14] Whilst expressing reservations about certain aspects of the appellant's allegation the Authority accepted the general claim that he suffered discrimination at the hands of the native Tajiks.  The Authority also accepted that conditions in Tajikistan were very difficult economically, businesses and factories were closing and there was massive unemployment as a result.

[15] The Authority did not accept the claims that the appellant's life was at risk because of his Russian ethnicity or Orthodox Christian beliefs.  The Authority said that it was satisfied that there had been a considerable degree of embellishment, particularly in regard to the frequency of the harassment and discrimination suffered by him, both at work and on the streets of the town.  The Authority went on to quote from a report by Human Rights Watch, a non-governmental organisation.  The report is dated 1 April 1998 and gives information concerning Tajikistan, including an estimate of the country's unemployment rate at 40 per cent which is said to be the highest in the Commonwealth of Independent States of which Tajikistan is a member.  What are described as new studies estimate the Russian population as eight percent of the total.

[16] The Authority held that even accepting as true the allegations of ill-treatment made by the plaintiff, its view was that this did not rise to the level of persecution.  The Authority did not accept that the evidence was sufficient to conclude that the fire in his house amounted to either persecution or was the result of ethnic hatred.  The Authority concluded that the appellant's difficulties stemmed basically from the economic problems to which Tajikistan was subject.

[17] The Authority also concluded that the presumption of State protection applied in this case.  It held that law and order had not broken down in the country and no evidence had been produced to rebut the presumption of State protection.  The Authority said there was no evidence that Russian citizens in Tajikistan were persecuted by reason of their race or religion.  It quoted from the February 1999 report of the United States Department of State, "Tajikistan country report on human rights for 1998".  That report recorded that less than two per cent of the population was ethnic Russian and related Russian speakers and that:

[18] The Authority concluded from that report that the Russian population had suffered, if anything, less than other minorities.  The Authority concluded: [19] The Authority then went on to discuss the possibility of the applicant's dual citizenship and accepted that the appellant could apply for Russian citizenship, but before doing so would need to have resided in Russia for some qualifying period which could be up to three years.  In this regard the Authority concluded that: The Plaintiff's Case

[20] Mr Ryken submitted that the appropriate starting point is that the highest standards of fairness must apply to refugee cases.  He referred to the decision of Fisher J. in Khalon v Attorney-General [1996] 1 NZLR 456 at 463:

[21] Reference was made to the Law of Refugee Status, by Professor J. D. Hathaway (Butterworths 1991) at p. 104-105: [22] The statement of claim alleges that the decision of the Authority was unfair, unreasonable, failed to take into account relevant considerations and took into account irrelevant considerations and was, therefore, wrong in fact and Iaw and in breach of natural justice.  This compendious statement of the grounds which support judicial review was followed by a list of particulars, but in argument Mr Ryken said that the central issue was that the decision contained a wrong finding of fact, that is, that there had been no breakdown of law and order in Tajikistan.  He submitted that the evidence showed clearly that there had been a breakdown of Iaw and order and that the State could not provide protection from persecution by other members of the community.

[23] This "central issue" was not pleaded and accordingly Mr Ryken sought an amendment to the statement of claim to allege that there was no evidence to support the finding of the first defendant that there was no breakdown of law and order.  There was no opposition to that amendment and it was granted.

[24] In arguing this ground, Mr Ryken criticised the Authority for its finding that there was a presumption of State protection which the plaintiff was required to rebut.  Mr Ryken submitted that decisions which had positived the existence of such a presumption referred to the situation in countries such as the United States and Canada, but that it was inappropriate that there be such a presumption in relation to a country like Tajikistan.

[25] Even accepting the appropriateness of that submission it is not possible to say there is no evidence that law and order has not broken down.  The United States Department of State report describes the Government as having a narrow base of support which limits its ability to control the whole territory of the country and there are other comments which indicate a poor record in human rights.  The report states that some regions of the country remain effectively outside the Government's control and that Government control in other areas exists only by the day.  There is, however, no evidence to suggest that law and order has broken down in that part of the country where the plaintiff lived, or in the capital where he went after leaving his home town.  There is in this case no suggestion of the persecution alleged coming from the Government.

[26] In any case, as Mr Woolford noted, there was no evidence that the plaintiff ever went to the police as a result of the workplace harassment or the throwing of sticks and stones by children, so that there was no opportunity to judge whether or not protection would be provided by the State.

[27] I accept the submission on behalf of the second defendant that in the circumstances of this case there are two elements which must be established before the convention ground of persecution can be made out.  First, there must be a state of affairs serious enough to constitute persecution and secondly, there must be a breakdown in law and order so that state protection from that persecution is not available.

[28] The real issue in this case is whether the finding that the harassment and difficulties suffered by the plaintiff reached the level of persecution.

[29] The Authority, of course, found that it did not.  In order for the plaintiff to succeed in this application for review he must satisfy the Court that that finding was one which a reasonable Tribunal could not reach.  Mr Ryken, submitted that the cumulative nature of the discrimination suffered amounted to persecution and that the first defendant failed to take into account this cumulative effect.  Findings of fact were challenged.  For example it is submitted that the first defendant wrongly concluded that the burning down of the plaintiff's house was not persecution.  Mr Ryken submitted that the only reasonable difference from the evidence is that the burning of the house was a part of the persecution of the plaintiff.

[30] The Authority excluded from its consideration of the acts said to amount to persecution, the burning of the house on the grounds that there was no evidence as to who did it, or that the motive was persecution.  On the plaintiff's evidence the fire was obviously deliberately lit, but that could have been to disguise theft or for reasons not necessarily associated with persecution.  While it may have been open to the Authority to infer a persecution motive, such an inference is not an inevitable one so that it is not possible to say that it is a finding to which the Authority could not come.

[31] Putting that to one side, it is in my view not possible to say that the Authority was not entitled on the evidence to come to the conclusion that it did as to the level of the harassment.  It is also apparent that the plaintiff made no real effort to obtain a job or to live in the capital or some other location in his country.

[32] As the House of Lords held in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 the general purpose of the convention relating to the status of refugees is the provision by the international community of surrogate protection by way of the granting of refugee status to persons who are being denied protection from persecution in their home country.

[33] In the present case I am satisfied that the Authority's view that the harassment suffered by the plaintiff did not rise to the level of persecution was one that was open to it and that there was evidence that State protection was available.  In this regard though it is noteworthy that there is no evidence that the plaintiff sought to avaiI himself of the protection of the State except when it came to making a complaint about the fire.

Conclusion

[34] The plaintiff has not made out grounds which would justify reviewing the decision of the Authority and the proceedings are, therefore, dismissed.
 
Delivered at 9am on 17 August 2000.

Solicitor for the plaintiff: Ryken and Associates (Auckland)
Solicitor for the defendants: Crown Solicitor (Auckland)