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T v Refugee Status Appeals Authority

High Court Wellington CP No. 233/00; [2001] NZAR 749
16 May 2001; 23 May 2001
Durie J

Immigration Act 1987 - responsibility to establish refugee claim - meaning of - whether an onus of proof - Immigration Act 1987, s 129P(1)

Procedure of RSAA - burden of proof - responsibility to establish refugee claim - meaning of - whether an onus of proof

The plaintiff, a citizen of Vietnam, some nineteen months after arrival in New Zealand participated in a demonstration at Parliament to seek government support for democratic change in Vietnam and later joined the newly formed "Free Vietnam Youth and Students Association in New Zealand". This also serves as the New Zealand liaison office for the Free Vietnam Association. Later again she was party to the attempted presentation of a petition to the Vietnamese Prime Minister when he attended the Apec Conference in Auckland. The Refugee Status Appeals Authority (RSAA) found on the evidence that the plaintiff was not likely to experience serious problems on return to Vietnam. In the course of dismissing the appeal, the RSAA also made an observation concerning the Immigration Act 1987, ss 129G(5) & 129P(1) to the effect that a refugee claimant bears the burden of proofing his or her claim.

Held:

1. The stipulation in the Immigration Act 1987, s 129P(1) that it is the responsibility of an appellant to establish the claim is not a reference to a burden of proving the claim. The responsibility is to establish what the claim is (see paras [23] & [38]).

Bajao v Chief Executive of the Department of Labour [2000] NZAR 185 and C v Refugee Status Appeals Authority (High Court, Auckland, M 1365-SW00, 4 May 2001, Nicholson J) not followed. Faavae v Minister of Immigration (No. 2) (High Court, Auckland, M 1434/96, HC 122/96, 2 May 1997, Fisher J); Don v Refugee Status Appeals Authority (High Court, Auckland, M 917-SW00, 20 September 2000, Chambers J); S v Refugee Status Appeals Authority (High Court, Wellington, CP 203/97, 7 April 1998, Gallen J); Faavae v Minister of Immigration [1996] 2 NZLR 243 (Anderson J); Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 160 ALR 24 referred to.

2. The opinion expressed by the RSAA was simply gratuitous and it is not an error or law if a side comment is wrong. The Authority in fact correctly applied the law in disposing of the matter, adopting a suitably broad approach. See paras [40] & [43]).

Application for review dismissed

Other cases mentioned in judgment

Buchanan & Co Limited v Babco Limited [1978] AC 141 (HL)
Fothergill v Monarch Airlines Limited [1981] AC 251 (HL)
Shipping Corporation of India Limited v Gamlen Chemical Co Australasia Pty Limited (1980) 147 CLR 142 (HCA)
TVNZ v Prebble [1993] 3 NZLR 513 (CA)
Refugee Appeal No. 523/92 Re RS (17 March 1995)

Counsel

JS Petris for the plaintiff
MJC Hodgen and J Foster for the defendants

DURIE J

Introduction

[1] The plaintiff, of Vietnam, came to New Zealand to study. She later applied for refugee status in New Zealand, which was declined, and then appealed. She claimed there was a real chance she would be persecuted at home on account of her political activities in New Zealand. The Refugee Status Appeals Authority rejected the plaintiff's claim and dismissed the appeal.

[2] The plaintiff now seeks review of the Authority's decision, alleging an error of law. The only question is whether the decision is flawed by an opinion given in the course of it that the plaintiff bore the burden of proof. The passages reciting that opinion are first viewed in the context of the decision as a whole.

Context

[3] The Authority was clearly of the view that the plaintiff was not threatened by imminent danger. It noted a number of matters from the plaintiff's statements and materials that I abbreviate as follows. The plaintiff was aggrieved that in Vietnam, her success in examinations at school and teachers' training college depended on bribing teachers. After objecting and being suspended, she raised funds to study in New Zealand. Some 19 months after arriving she participated in a demonstration at Parliament to seek government support for democratic change in Vietnam and later joined the newly formed 'Free Vietnam Youth and Students Association in New Zealand'. This also serves as the New Zealand liaison office of the Free Vietnam Association. Later again she was party to the attempted presentation of a petition to the Vietnamese Prime Minister when he attended the APEC conference in Auckland.

[4] The Youth Association has written to the New Zealand Government about Vietnam, has sent newsletters to students within Vietnam (to give access to information locally denied) and was one of many signatories to a further petition to the Vietnamese Prime Minister protesting the imprisonment of a dissident.

[5] The plaintiff has raised related issues at regular meetings with other Vietnamese in New Zealand.

[6] The Authority observed that the events the plaintiff relies upon to support her claim of imminent retribution, all arose after the plaintiff had arrived in New Zealand. The plaintiff had not asserted that either she or her family had been at some risk before then. The Authority also noted that the same events post-dated that plaintiff's initial application for refugee status, the plaintiff explaining that this was because of a growing awareness.

[7] The plaintiff's stated fear was that she would be punished, if returned home, on account of her actions and her membership of the Associations which were said to be linked to anti-government activities. When asked how she might be identified in Vietnam she referred to X, a Vietnamese national in New Zealand whom she had met and who had spoken strongly against the Youth Association as being contrary to the aims of the Vietnamese government. X had photographed her at the demonstration at Parliament after which her photograph had appeared on the Internet. The Authority considered the photograph was small and did not identify the plaintiff. However the plaintiff also thought it likely that X would have named the 16 members of the Youth Association to the Vietnamese authorities.

[8] The Authority found that before coming to New Zealand the plaintiff had no particular profile to bring her to the attention of the Vietnamese authorities. >From questioning her, the plaintiff's role in the New Zealand activities appeared to the Authority to be marginal. The chances of her coming to the attention of Vietnamese officials also seemed to the Authority to be speculative and remote. Had there been concerns to date officials are likely to have contacted the plaintiff's family, in the Authority's opinion, but had not done so. The plaintiff had understood that the families of the others involved had not been contacted either.

[9] The Authority gave particular attention to the available 'country information'. While the Vietnamese government has arrested the returning members of certain groups, including those directed to overthrowing the government through international links and lobbying efforts, the opinion is that 'ordinary Vietnamese citizens who participate in demonstrations are not likely to experience serious problems on return to Vietnam'. The Authority did not accept that the Youth Association fell into the former class.

[10] However, having reached those conclusions the Authority ended with two paragraphs, implying a burden of proof in the first, and in the second, explicitly referring to one. The passages give rise to the plaintiff's contention that an incorrect perception of an applicable onus of proof governed the reasoning process. In now citing the passages the most pertinent parts have been highlighted.

The passages complained of

[11] In its decision the Authority recorded as follows, at para 37:

"At the conclusion of the taking of the evidence, counsel conceded that the [plaintiff] could not prove that her activities have become known to the Vietnamese authorities. He claimed however that it was reasonably plausible that there would be people in Vietnam who would have a vested interest in closing the Youth Association down and that the Vietnamese authorities 'would not be happy with the organisation existing here'. As noted, he also conceded that the [plaintiff] was not identifiable through the photographs circulated on the website and that he could not point to any direct evidence that the Vietnamese authorities were aware of her activities at all. He hinted that X may have a vested interest in securing a placement of Vietnamese students at English language schools here in New Zealand and that this in some way may provide him with a motive for bringing it to the attention of the Vietnamese authorities to those Vietnamese nationals who participated in anti-government activities whilst in this country. As was pointed out to counsel during the hearing however, the Authority was of the view that it is equally able to speculate that X would desist acting in such a way given that such an act might cause the Vietnamese authorities to prevent the travel of any Vietnamese students to this or any other countries."

[12] The Authority then added the first comment, of which complaint is made, at paragraph 38:

"Be that as it may, whilst accepting that the [plaintiff] is not required at law to prove beyond all doubt that she has come to the attention of the Vietnamese authorities, the Authority must at the end of the day be satisfied that there is a real chance that she will come to harm if she is returned. On the basis of all the evidence before it, it is not satisfied that this threshold has been met. On the contrary, there is no evidence that the [plaintiff] has yet come to the attention of the Vietnamese authorities. Further, it is more than speculative to find that X has or may subsequently bring her details to the attention of the authorities in Vietnam and equally speculative to suggest that the [plaintiff] will be identifiable from the details provided by X to the authorities given that she has never had any political profile, any criminal profile or any adverse profile at all in her home country. Not only is she such a person but so are all the members of her family. It must not be forgotten that her father was employed by a government company for a period of almost twenty years before retirement. This is not therefore [a plaintiff] whose immediate family members have ever given the authorities cause for concern. Further, the Youth Association is a very small group (16 members) operating at a low level in a country where the Vietnamese government does not even maintain an Embassy. It is speculative to claim that, in such circumstances, there is a real chance its activities are monitored or have even become known to the Vietnamese government or its agents."

[13] Paragraph 39 provides the basis for the presumption as to onus of proof as follows:

"Counsel is reminded (as he has been in previous decisions of this Authority) that his rejection of the Authority's decision in Refugee Appeal No. 523/92 (17 March 1995) that a refugee claimant bears the burden of proving his/her claim is ill-conceived. Specifically, s 129G(5) and s 129P(1) of the Immigration Act 1987 are unequivocal in this regard."

[14] I think references to a burden of proof in the context of the relevant part of the Immigration Act are at least inadvisable, if not plainly wrong. This is not mainly because such references distort the obligations accruing to refugee status claimants, but because they predicate a narrow approach to the exercise of jurisdiction that seems wholly inappropriate to the jurisdiction. Accordingly, the question I first posed of whether the decision is flawed by a finding that the plaintiff bore the 'burden of proof', may be refined. Do the words indicate that the Authority has too narrow an approach to its jurisdiction and was too narrow an approach in fact taken in this instance?

[15] Of the two sections cited, s 129(1) is most relevant to this case. In fact, neither section actually uses the words 'burden of proof', which is some indication that something may be wrong. However my reserve about the substitution of words comes mainly from an overview of the general statutory scheme.

Overview and interpretation

[16] Refugee determinations are made pursuant to Part 6A of the Immigration Act 1987 as inserted by the Immigration Amendment Act 1999. Section 129A, the first provision in this Part, sets out the object of this Part of the Act, to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention. I think this gives considerable purpose to the relevant sections that follow. Section 129A is then reinforced by s 129D which provides that in carrying out their functions under this Part, refugee status officers and the Refugee Status Appeals Authority are to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention.

[17] The Convention itself, as printed in Schedule 6, draws upon the principle that all shall enjoy fundamental rights and freedoms, as affirmed in the Charter of the United Nations and Universal Declaration of Human Rights. It acknowledges United Nations endeavours to assure the widest possible exercise of these rights by refugees and incorporates reference to the social and humanitarian dimensions of the refugee problem. To my mind, these sentiments indicate that the interpretation of the Convention must be referable to stated objectives of high political import, and that to achieve those objectives, a broad and liberal interpretation is required of the specific obligations of subscribing States. As Lord Wilberforce put it in Buchanan & Co Ltd v Babco Ltd [1978] AC 141, 152 (HL), an international convention should be interpreted 'unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation'. See also Fothergill v Monarch Airlines Ltd [1981] AC 251, at pp 281-282, 285, 293; and Shipping Corporation of India Ltd v Gamlen Chemical Co Alasia Pty Ltd (1980) 147 CLR 142 (HCA). By s 129D the same approach is required of the Refugee Status Appeals Authority in New Zealand.

[18] Sections 129E-K provide for the determination of refugee status claims by a refugee status officer. Appeals to the Refugee Status Appeals Authority are provided for in ss 129N-Q. As I read those provisions, on appeal the claim is considered de novo.

[19] The appeal procedure is set out in s 129P. Relevant excerpts are as follows:

"(1) It is the responsibility of an appellant to establish the claim, and the appellant must ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority before it makes its decision on the appeal.

(2) The Authority -

(a) May seek information from any source; but

(b) Is not obliged to seek any information, evidence, or submissions further to that provided by the appellant; and

[20] I interpose that the subsection indicates the inquisitorial function of the Authority. Further, while the subsection confers a discretion, regard must be had to s 129D and the 'profound concern' in the Convention to ensure fundamental rights and freedoms to refugees. Read that way, I incline to consider that the Authority, in exercising its discretion, would need to be proactive in seeking further information were that necessary to give full consideration to the justice of the case. Continuing with the section:

"(3) An appellant must provide the Authority with a current address in New Zealand ...

(4) In its consideration of an appeal ... the Authority may request the chief executive of the Department of Labour to seek and provide relevant information.

...."

[21] Finally, clause 7 of Schedule 3C provides for the Authority to be a Commission of Inquiry. As I see it a Commission of Inquiry is unlike a Court. It is obliged by its very nature to inquire into the matter put before it, or depending upon the type of Commission, to inquire into such claims or applications as may from time to time be put to it. This is made clear by s 2 of the Commissions of Inquiry Act 1908, which outlines the myriad of functions that are performed by Commissions of Inquiry. The inquisitorial and wide-ranging nature of a Commission of Inquiry was also referred to by Richardson J in TVNZ v Prebble [1993] 3 NZLR 513, where he said, at 534:

"Given the nature, breadth and detail of the allegations which go to the heart of policy making in government, [these issues] could more readily be traversed before a commission of inquiry or in a political forum than in adversarial proceedings in a Court of law."

[22] Section 129P(2) does not detract from the primacy of an inquisitorial approach, in my view, and instead, the section must be read in the context of the inquisitorial function. In short, the Authority is generally obliged to inquire, but in appropriate cases may be relieved from so doing.

[23] What then is meant by 'the responsibility of an appellant to establish the claim' in s 129P(1)? First, as I have mentioned, the reference is not to a burden of proving the claim. I think it confuses when an inquisitorial body substitutes words more at home in a Court and for that reason alone I think it is unwise, in this instance, to substitute for words that the legislature itself has chosen. But more than that, in looking at the scheme as a whole, I think the responsibility referred to in the subsection can be no more than a responsibility to establish what the claim is. The provision cannot by itself deprive the Authority of its role as a Commission of Inquiry with all the attendant duties to fully inquire into such claims as are presented to it.

[24] I am reinforced in that conclusion by looking at the words that follow and then the subsection as a whole, or the section as a whole for that matter. The succeeding words, though linked by a distinguishing conjunction, do not ascend to the more refined world of onus and standards of proof. They remain grounded with the paraphernalia of supporting material.

[25] Nor do I think that s 129P(2)(b) and (c) provide a general exception to the inquisitorial function. There will be occasions when at one extreme, a claim is so complete that the pursuit of further material is not needed. On other occasions the claim may be so frivolous or vexatious, or the answer so plain, that the pursuit of further material is simply not warranted.

[26] To the extent that it is necessary, in reaching that conclusion, I respectfully disagree with the decisions to which I was referred, beginning with Bajao v Chief Executive of the Department of Labour [2000] NZAR 185 and various decisions of this Court referred to in that case. I do so regretfully, mindful of the clear logic in Bajao and the inconvenience of conflicting decisions at this level. In Bajao it was considered that there is no effective difference between 'a responsibility to establish a claim' and a 'burden' to prove it. As Wild J put it (at p 189), following Fisher J in Faavae v The Minister of Immigration (No. 2) (High Court, Auckland, M 1434/96, HC 122/96, 9 May 1997), the two terms are 'essentially interchangeable'. Wild J nonetheless considered that in referring to an 'onus' the Authority 'might not have selected the most appropriate word' and Fisher J thought that 'one should not waste too much energy on labels'.

[27] However, it appears that Fisher J's comments in Faavae No. 2 did not arise from any particular legislative directions that might be seen to impose a burden of proof, but arose more generally, the onus being seen as a natural consequence of the judicial function to be performed. That case concerned an appeal against a deportation order pursuant to s 105. Bajao concerned an appeal, on the law before the Immigration Amendment Act 1999, against a decision of the Removal Review Authority. The Removal Review Authority was not formally expressed to be a Commission of Inquiry (see Schedule 3B as then). Nonetheless the Commission had power to seek further information (s 63D(4)(a) as then) but generally, appeals to the Authority were to be determined 'on the papers and with all reasonable speed' - s 63D(1). At the time, the Convention was not incorporated into the Act as it is now. In that context, arguably, the 'responsibility of the appellant to ensure' that all material was given to the Authority within a specified time, as provided for in s 63D(2)(a), had more poignancy than similar words have now in s 129G(5). It was clearly more open to Wild J to conclude as he did. I think this case is different, on account of the new context that I have described which flows from the Immigration Amendment Act 1999. However, if that is not so then I respectfully disagree with previous opinion.

[28] No doubt the Authority had Wild J's compelling decision in mind in the passage that I have quoted. However as I have already said, in my view, a difference arises from the statutory context. Especially significant as well is the general distinction between inquisitorial and adversarial roles. 'Responsibility' and 'burden' may be the same in most legal situations, and in an ordinary manner of speaking. Nonetheless the 'burden of proof' excites the lawyers' adversarial instincts and is associated normally, but not exclusively, with a proceeding between parties. The same phrase likewise invites the judge to sit back with an empty mind waiting to be filled with such evidence as is adduced, and then with the evidence and nothing else. That must be inappropriate for the Authority which must come to the bench with a mind already full from its vast, global experience. I think that to maintain the already high standing of the Authority in this politically sensitive area, any tendency to import notions peculiar to the Courts must be carefully scrutinised.

[29] The risk is there for legal habits are known to have lasted and in terms of s 129N(4) the Authority is comprised of barristers or solicitors of at least 5 years standing or persons with equivalent experience. Fortunately, I understand that members are appointed from the senior ranks of the profession, able to think globally, to focus upon the primacy of human rights, and competent to positively intervene. The international reputation of the Authority was referred to in an extra-judicial paper by Baragwanath J (Judicial Review and Administrative Law Issues Arising in Refugee Law in New Zealand, International Association of Refugee Law Judges inaugural meeting, 10 March 2000). But all merely serves to emphasise that to ensure New Zealand's express commitment to the Convention, no tendency to a legalistic or formulaic approach should be readily admitted.

[30] For completeness, I was referred to the following from Chambers J in Don v Refugee Status Appeals Authority and Anor (High Court, Auckland, M 917-SW00, 20 September 2000) para 4:

"There was no dispute that the plaintiff had the responsibility of establishing his claim. Section 129P expressly so provides."

[31] As Chambers J said, there was no dispute on the point, in that case. No question of an onus of proof fell for debate. I note also that Chambers J with customary care, used the statutory terminology. Likewise I find little assistance from C v The Refugee Status Appeals Authority (High Court, Auckland, M 1365-SW00, 4 May 2001), where, at para 60, Nicholson J referred to a statement of the Authority in Re RS (Refugee Status Appeals Authority, Auckland Appeal 523/92, 17 March 1995):

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

[32] Nicholson J commented, at para 61:

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

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

[33] References to a 'burden' and 'standard' of proof were not in contention in the proceeding. In all other respects the passage cited suggests to me that the Authority's mode of operation is not only unobjectionable but is appropriate.

[34] I think the issue was amply and pragmatically addressed by Gallen J in Song Wei Hong v Refugee Status Appeals Authority (High Court, Wellington, CP 203/97, 7 April 1998) at p 14, as follows:

"In determining the likelihood or otherwise of the factual material on which the applicant relies to establish the objective nature of the fears, all that is necessary for the applicant to establish is that there is a real possibility that what he or she fears will occur, will occur. It is wrong to consider that in terms of a balance of probabilities. In determining the question, the Authority is obliged to consider potentialities, but ought not to determine that out of a range of possibilities one is more likely than another. If one which justifies the concerns of the applicant has a real possibility of occurrence, then that is sufficient."

[35] I am then at one with the following passage in the judgment of Anderson J in Faavae v Minister of Immigration [1996] 2 NZLR 243, at p 249 (cited by Wild J in Bajao at p 190):

"In the present case the tribunal formed and expressed the view not only that there was an onus on the appellant but that the onus was 'substantial'. I think it clear that the tribunal approached its task on the basis that there was a presumption which the appellant had to rebut on the basis of a high or substantial standard of proof, that it was not unjust or unduly harsh to deport the appellant from New Zealand and that it would be contrary to the public interest to allow him to remain. In my judgment that is a clear and significant error of law. The tribunal's task is to evaluate the position, not judge whether the Minister was wrong. It has certain powers of a commission of inquiry. Its procedures are not adversarial but more inquisitorial. It has an obligation to an appellant and the community to assess the circumstances in which a deportation order has been made. It is not an arbiter of the correctness of the Minister's decision. There is no presumption one way or the other as it sets about its task. It must consider in a fair and purposive way whether it would be or would not be unjust or unduly harsh to deport the appellant from New Zealand. The reference to 'whether or not' in s 105(2) clearly shows that the tribunal's task is to make an original finding on the matters before it and not to determine whether a decision made by the Minister is wrong. It has an original responsibility to evaluate and it must come to its decision, if it does, that it would be unjust or unduly harsh on the balance of probabilities, and on no higher a standard. In this case it has assumed there to be an onus and it has plainly directed its mind to a much higher standard than the section envisages."

[36] Further there is comfort from Australia. In the Federal Court of Australia Merkel J considered the statutory guidelines for reviews by the Refugee Review Tribunal in Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 160 ALR 24. His judgment states, at p 55:

"Section 420(2), which sets out the guidelines, provides:

The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

The provisions to which I have referred provide for the RRT to operate in an inquisitorial, non-adversarial manner. Concepts such as onus of proof and burden of proof have no role to play before the RRT: See Immigration and Refugee Law in Australia, Mary Crock (1998), pp 138 and 262 and the authorities there cited. As stated in Pepaj v Minister for Immigration and Multicultural Affairs (Fed C, Merkel J, 25 November 1998, unreported) at 7 the RRT must:

'... determine whether it is 'satisfied' that the applicant for a protection visa is a refugee in accordance with the definition of a refugee as set out in the Convention: see ss 36 and 65 of the Act and at 866.22 of the Migration Regulations. Thus the question is not one of onus but one of satisfaction.'"

[37] While the decision honed to a particular statutory provision, I think the principle has application here.

[38] To reiterate the conclusion on this aspect of the case, I consider 'the responsibility of an appellant to establish the claim' in s 129P(1), refers to nothing larger than a responsibility to establish what the claim is. I should imagine that for many people that is no small matter. With language barriers and alternative cultural perceptions, there must be opportunities for claimants and officials to be talking past each other, neither truly understanding what the other is on about, and persons with traumatic past experiences may be inclined to cover more than the bare essentials. But in the end it is for the claimant to establish and determine what the claim is. Further, 'the responsibility of an appellant to establish the claim' can not in itself relieve the Authority from conducting its own inquiry into the claim, as established, unless for other reasons it considers there is no need to do so.

Application

[39] As mentioned the question first posed of whether the decision is flawed by an opinion on the burden of proof, now must be refined. Does the opinion reflect an inappropriately narrow approach, and was an inappropriately narrow approach in fact taken? I now address the latter point.

[40] Paragraph 39 of the decision on review adds nothing to that point. The opinion is simply gratuitous. I do not think there is an error of law if a side comment is wrong but the Authority in fact correctly applied the law in disposing of the matter, adopting a suitably broad approach.

[41] On the question of what the Authority did in practice, Mr Petris for the plaintiff relied upon a statement in paragraph 38 of the decision, quoted above. While accepting that the plaintiff was not required to prove beyond all doubt that she had attracted, or would attract, official attention in Vietnam, the Authority considered it had still to be satisfied of a real chance that the plaintiff would come to harm if she returned. It considered, on the evidence, that this threshold had not been met.

[42] Mr Petris submitted that the Authority thus activated its burden of proof presumption, to the plaintiff's prejudice. He submitted it was impossible to prove that the plaintiff would in fact be the subject of retribution but that her fear was real, there was a real prospect of retribution, and that she was entitled to the benefit of the doubt. He argued that the Authority's presumption of a burden of proof had precluded it from giving the plaintiff the benefit of the doubt. He thought the case paralleled the predicament described in guidelines issued as a handbook by the United Nations High Commissioner for Refugees. This stated:

"It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."

[43] The flaw in Mr Petris' argument is that while the Authority did indeed make the statement referred to, it did not in fact rely upon a presumption as to the burden of proof to dispose of this issue. On the contrary the Authority dealt painstakingly with the evidence, both the plaintiff's evidence and the 'country information', to reach conclusions on both credibility and probability, and was not satisfied as a result.

[44] On reading the decision as a whole, the clear impression I have is that the Authority quite obviously saw the need for a broad approach, in fact adopted a broad approach, and did not in fact adopt a principle borrowed from the Courts to dispose of the matter before it. No matter what it said at the end of its decision, the Authority consciously and conscientiously did the right thing, drawing upon both the evidence and its wide experience to draw a conclusion. In the result I find there was no error of law in processing the plaintiff's claim for refugee status.

Decision

[45] Relief is declined and the application for review is dismissed. The plaintiff is legally aided and I make no order as to costs.

Solicitors for the plaintiff: JS Petris (Wellington)
Solicitor for the defendants: Crown Law Office (Wellington)