MPR v Refugee Status Appeals Authority [2012] NZHC 567 (28 March 2012)

Last Updated: 24 June 2012

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH S 51

_{OF THE IMMIGRATION ACT 2009.}

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006163 [2012] NZHC 567

UNDER the Judicature Amendment Act 1972

AND

UNDER the Immigration Act 1987

IN THE MATTER OF the New Zealand Bill of Rights Act 1990

AND

IN THE MATTER OF the 1951 Convention relating to the Status of Refugees, and its 1967 Protocol

BETWEEN M P R Plaintiff

AND REFUGEE STATUS APPEALS AUTHORITY

First Defendant

AND THE ATTORNEY-GENERAL OF NEW ZEALAND

Second Defendant

Hearing: 15 July 2011

Counsel: C S Henry for the Plaintiff

No Appearance of or for the First Defendant

A R Longdill for the Second Defendant

Judgment: 28 March 2012

_{JUDGMENT OF DUFFY J}

R v REFUGEE STATUS APPEALS AUTHORITY and ANOR HC AK CIV-2010-404-006163 [28 March 2012]

This judgment was delivered by Justice Duffy on 28 March 2012 at 3.45 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: C S Henry P O Box 616 Orewa 0946 for the Plaintiff

Solicitors: Meredith Connell P O Box 2213 Shortland Street (DX CP24063) Auckland 1140 for the Second Defendant

Copy To: Immigration and Protection Tribunal (formerly the Refugee Status Appeals

Authority) P O Box 90251 Victoria Street West Auckland 1142

[1] The plaintiff, Mr R, claims that he is entitled to be recognised as a refugee. His claims have been rejected so far. He now brings judicial review proceedings challenging the way in which the earlier decisions were reached.

[2] The proceedings are opposed. The second defendant, the Attorney-General, is the only defendant actively opposing Mr R’s claims. The Authority, the first defendant, has properly given notice that it abides the Court’s decision.

Background

[3] Mr R arrived in New Zealand on 10 August 2003, intending to marry his fiancée. He experienced a series of failed attempts to gain refugee status from

20 August 2004 to 17 July 2008. On 27 November 2008, a Refugee Status Officer declined his second claim for refugee status. On 2 December 2008, Mr R lodged an appeal against this decision with the Refugee Status Appeals Authority (“the Authority”). On 17 June 2010, the Authority dismissed this appeal; hence, these proceedings.

[4] Mr R’s refugee claim is based on:

(a) His apostasy from Islam to Christianity;

(b) His participation in a protest outside the Auckland Central Remand Prison on 1 September 2007 and the broadcasting of that protest, which led to the detention and interrogation of his father in Iran;

(c) His participation in the 2009 post-election protests broadcast on

YouTube; and

(d) His profile as a politically active Kurd. [5] The Authority concluded that:

(a) None of the risk factors relied on, considered separately or cumulatively, result in Mr R having a well-founded fear of being persecuted in Iran;

(b) In light of the above conclusion, it is unnecessary to consider whether Mr R’s fear of persecution was based on a “Convention ground”; and, therefore

(c) Mr R is not a refugee within the meaning of the Convention Relating to the Status of Refugees (incorporated by the Immigration Act 2009, s 127(2)) (the Convention).

[6] To be a refugee within the meaning of the Convention, a claimant for refugee status must establish that he or she has a well-founded fear of persecution. Article 1A(2) of the Convention states that the term “refugee” shall apply to anyone who:

As a result of events occurring before 1 January 1951 and 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.

[7] The grounds on which judicial review is sought are: (1) error of law; and (2)

unreasonableness. They raise the following questions:

(a) Was it an error of law for the Authority to determine that Mr R is not a refugee within the meaning of the Refugee Convention?

(b) Were the conclusions drawn by the Authority and used to support the determination unreasonable, given the evidence before it?

Error of law

[8] In concluding that Mr R lacked a well-founded fear of persecution, Mr R

submits that the Authority made the following errors of law:

(a) It relied on Mr R’s ability to secretly practise Christianity in Iran to

hold that he had no well-founded fear of religious persecution;

(b) It failed to ascertain whether Mr R’s willingness to practise Christianity in secret in Iran arose from his fear of persecution for his apostasy (from Islam);

(c) It found that Mr R having to practise his religion in secret in Iran would not amount to persecution; and

(d) It concluded that Mr R had no well-founded fear of persecution for his

apostasy because he was an “ordinary Christian convert”.

[9] The Attorney-General does not dispute that the Authority acted as described above. Nonetheless, he submits that Mr R’s claim was properly considered, and that it was open to the Authority to act as it did.

Unreasonableness

[10] Mr R submits that the Authority’s decision was unreasonable in that it:

(a) Adopted factual conclusions that lacked the required reasonable factual support; and

(b) Placed the burden of producing in evidence the blacklist of persons of interest to the Iranian regime, kept by its intelligence agencies, on Mr R.

[11] The Attorney-General argues that this ground of review is no more than a

“thinly disguised attack on the merits of the decision”.

General principles

[12] A decision will be reviewable if it is based on a material error of law: that is, an error in the actual making of the decision, which affected the decision itself: see

Peters v Davison [1999] 2 NZLR 164 (CA) at 183; Poananga v State Services

Commission [1985] 2 NZLR 385 (CA); Martin v Ryan [1990] 2 NZLR 209 (HC) at

225; R v Hull University Visitor, ex parte Page [1992] UKHL 12; [1993] AC 682 (HL) at 702;

North Shore City Council v Minister of Conservation [2003] 2 NZLR 497 (HC).

[13] An error of law may be found where there was an unreasonable finding of fact, inadequacy of reasons, or a failure to make a finding of fact on a key issue for decision: see Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 (HL); Madlener v Lester HC Christchurch CP263/91, 31 July 1996.

[14] Unreasonableness is a problematic ground of review because it may obscure the distinction between the legality of a decision, which is reviewable, and its merits, which are not reviewable: see Waitakere City Council v Lovelock [1997] 2 NZLR

385 (CA) at 397-420. The test for unreasonableness can vary according to the context. Decisions that are “entirely about money” or that largely involve questions of central or local government policy are subject to the test applied in Wellington City Council v Woolworths (No 2) [1996] 2 NZLR 537 (CA) at 545. This test requires a plaintiff to show that something is overwhelmingly wrong with the decision to the extent that no sensible person who had applied his or her mind to the question to be decided could have arrived at it. However, it has long been recognised that a lower threshold may be applied in cases involving human rights: see Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 at 66:

In some cases, such as those involving human rights, a less restricted approach, even perhaps, to use the expression commonly adopted in the United States, a “hard look'', may be needed. The concept of substantive fairness, discussed in Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641, also requires further consideration. The law in this country applicable to situations of that kind will no doubt be developed on a case by case basis. But this is not such a case. It is entirely about money, subsidisation of the sale of pharmaceuticals. There is no call for any departure, on these facts, from the position so recently taken in Woolworths.

I consider that a case involving whether or not a decision to refuse a claimant refugee status is one involving human rights.

[15] In Tamil X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2

NZLR 73 at [74]-[75], Hammond J, citing Lord Steyn in R v Secretary of State for the Home Department ex parte Adan [2001] 2 AC 477 (HL) at 516-517, accepted that national courts should “search, untrammelled by notions of [their] national legal culture, for the true autonomous and international meaning of the treaty”. The case later went on appeal to the Supreme Court (Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721), which did not disapprove of this approach. Whilst Hammond J’s comments were made in the context of interpreting Article 1F of the Convention, I consider that they can be applied more generally to the interpretation of the Convention and, in particular, Article 1A(2). I also consider that the search for a “true autonomous and international meaning” of the Convention means that case law from other jurisdictions carries more force than it might otherwise do.

Analysis

[16] The Authority made no factual findings against Mr R regarding the authenticity of his conversion from the Muslim to the Christian religion: see [105]- [109] of the determination. There was no need for it to do so, given the legal view that it took of what could amount to a well-founded fear of persecution. Whilst the tone of the Authority’s comments in [105]-[109] suggest that the Authority viewed Mr R’s conversion to Christianity with some scepticism, it did not go on to find that his evidence on this topic was not credible. Having set out two opposing ways of viewing Mr R’s conversion and the genuineness of his newly-held faith, the Authority expressly said at [109]: “For reasons which will become apparent, we do not need to determine which is correct”.

[17] The Authority accepted that overt displays of Christian worship in Iran would result in persecution. But, in the Authority’s view, discreet, covert Christian worship in Iran, even by Muslim apostates, was tolerated. The Authority appeared to treat this issue as if the manifestation of Christian worship in Iran and the potential for resulting persecution could be assessed according to a sliding scale with overt forceful proselytising at one end of the scale and secret worship in the home at the other. Where a particular applicant for refugee status might be placed along this

scale was treated by the Authority as a factual assessment for it to make using its specialist skills and knowledge.

[18] The Authority concluded that Mr R was someone who worshipped discreetly and covertly when in Iran and, therefore, there was no risk of persecution. Thus, he could not have a well-founded fear of persecution under the Convention. But, Mr R contends that the Authority never questioned why it was that Mr R, and other Christians, felt the need to worship in a discreet and covert manner when in Iran. The Attorney-General has not contested the factual accuracy of this assertion; his argument is that the Authority was not legally required to do so. I have proceeded, therefore, on the basis that the Authority did not in fact ask this question.

[19] The key issue in this case is whether the Authority’s approach is legally correct. The approach it has taken is not one that has been applied in other jurisdictions. The cases referred to below reveal an approach that treats the question of why an applicant for refugee status secretly indulges in the conduct on which his or her application is based as being a legal component of the test to determine if the applicant qualifies under Art 1A(2) of the Convention. On this approach, if the applicant is found to have acted in secret because more overt demonstrations of the material conduct would lead to persecution, the covert behaviour is then understood to confirm the existence of a well-founded fear of persecution.

[20] In Appellant S395/2002 [2003] HCA 71, (2003) 216 CLR 473, the High Court of Australia considered the relevancy of discreet and covert conduct on the part of two Bangladeshi homosexuals claiming refugee status. There was evidence that whilst the practice of homosexual conduct between consenting adults was a crime in Bangladesh and was the subject of social and religious disapproval within that country, the discreet, covert expression of such conduct would not be persecuted. A majority of the Court found that it was no answer to a claim for refugee status to say that if discreet and covert manifestations of the material conduct were tolerated, there could be no well-founded fear of persecution.

[21] At [35], McHugh and Kirby JJ said:

The reasons of the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the Government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal’s findings that they do. Nor did the Tribunal’s reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution.

[22] Later, at [43], McHugh and Kirby JJ observed:

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality ... The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor in that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

[23] Gummow and Hayne JJ saw matters in much the same way. At [88], they said:

[The Tribunal] did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.

[24] And at [80], they said:

If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an

applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not could the applicant live in that country without attracting adverse consequences.

[25] On the topic of what is “persecution”, McHugh and Kirby JJ stated at [40]:

The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person effected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution.

[26] The majority of the Court ultimately concluded that as the Tribunal had not considered the reasons for the appellants acting in a discreet and covert manner, it had fallen into jurisdictional error. Their appeal was, therefore, allowed.

[27] The notion that a claimant for refugee status cannot establish a well-founded fear of persecution when he or she can avoid attracting attention in his or her home country through discreet, covert behaviour has been rejected in other jurisdictions. The United States Court of Appeals for the Seventh Circuit in Muhur v Ashcroft

335 F 3d 958 (7th Cir, 2004) at [10] said:

But the fatal flaw in the immigration judge’s opinion lies elsewhere, not in the weight he accorded to the lack of documentary proof of Muhur’s being a Jehovah’s Witness but in the assumption – a clear error of law – that one is not entitled to claim asylum on the basis of religious persecution if ... one can escape the notice of the persecutors by concealing one’s religion. Christians living in the Roman Empire before Constantine made Christianity the empire’s official religion faced little risk of being thrown to the lions if they practised their religion in secret; it doesn’t follow that Rome did not persecute Christians, or that a Christian who failed to conceal his faith would

be acting “unreasonably.” ... One aim of persecuting a religion is to drive its adherents underground in the hope that their beliefs will not infect the remaining population.

[28] And in another asylum decision involving State disapproved religious type activity (Falun Gong) IAO v Gonzales [2005] USCA7 112; 400 F 3d 530 (7th Circ, 2005), the United States Seventh Circuit Court of Appeals stated at 532:

... the fact that a person might avoid persecution through concealment of the activity that places her at risk of being persecuted is in no [way] inconsistent with her having a well-founded fear of persecution ... On the contrary, it is the existence of such a fear that motivates the concealment.

[29] In Irripugge v Canada (Minister of Citizenship and Immigration) (2000) 3

Imm LR (3d) 263, Sharlow J quashed the finding by the Convention Refugee Determination Division (CRDD) that an applicant had no well-founded fear of persecution for his Roman Catholic religion in China because he kept his religion from authorities. At [53]-[55], Sharlow J disapproved of the CRDD’s failure to enquire of the applicant whether he would have worshipped publicly if he could.

[30] The fallacy behind the idea that there can be no well-founded fear of persecution if the risk of persecution is avoided through discreet and covert conduct is illustrated by the dictum of Madgwick J in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 1, (2001) 105 FCR 212 at [18]:

Upon the approach suggested by [the Minister] Anne Frank, terrified as a Jew and hiding for her life in Nazi-occupied Holland, would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic. It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had such a result in contemplation.

[31] Madgwick J’s reductio ad absurdum approach to disproving the proposition that discretion and secrecy are answers to fear of persecution goes a long way towards illuminating the proposition’s fallacy. Nonetheless, this proposition is not without its adherents. The Attorney-General has, in the face of the overseas case law, maintained a strong stance in support of the Authority’s reasoning.

[32] The authority that is most strongly in support of the Attorney-General’s

approach is a decision of this Court in F v Refugee Status Appeals Authority HC

Auckland CIV-2006-404-7714, 28 May 2008. The Authority had found F to be a private low level proselytiser and that he would not, therefore, be at risk of persecution in Iran. At [29]-[30] the Court said:

As Mr Woolford submits, each case turns upon the Authority’s assessment of character and personality. The commitment to Christianity may be the same. But in Refugee Appeal No. 73945 the RSAA made sustained findings to the effect that the appellants were public advocates of the Christian faith and would act in the same way if forced to return to Iran. By contrast, the Authority found that F was, and was likely to remain in Iran, a discrete, quiet or low level convert whose activities would not attract official attention.

The decisive feature is the manner of the individual’s likely manifestation and practice of Christianity in Iran. Contrary to Mr Mansouri-Rad’s submission, the RSAA was not imposing an expectation or edict on F that he behave discretely. It was doing no more than expressing its conclusion, based upon a current assessment of the relevant facts, about F’s likely conduct on return to Iran. This is precisely the predictive evaluation which the Authority is called upon to undertake in determining whether or not an existing fear of persecution for reason of religion is well-founded within the meaning of Article 1A(2). A decision of the Authority in one case which differs from the result in another, when each undertakes an intensely factual assessment, cannot be characterised as manifestly unreasonable on that account. Again, I think, this ground is really an argument on the merits.

[33] With great respect to the Court in F, I have trouble accepting the idea that an argument against a decision-maker taking into account the manner of an applicant’s likely manifestation and practice of Christianity in Iran can be described as an argument on the merits of the particular application at hand. To me, it is something that goes to the legal content of the test the Authority must apply when determining applications under Art 1A(2). In this regard, I find the reasoning in the majority decisions in Appellant S395/2002 and the other cases that have adopted the same approach to be overwhelming.

[34] Indeed, the Court’s approval in F of the approach where the manifestation of religious observance is taken into account as a factor in assessing if there is a well- founded fear of persecution was done without the benefit of considering the helpful authorities on this topic to which I have been referred and the persuasive argument that I heard. Had the Court in F had the benefit of such assistance, it may have been less ready to embrace this approach.

[35] Whilst I would also accept that, in principle, a believer who successfully worships in secret, so that he is unknown to a regime that persecutes members of his faith, may lack a well-founded fear of persecution, the critical question is whether the resort to secrecy is part of the creed to which he belongs, or because to worship otherwise would attract persecution. If it is the latter, the adoption of secret behaviour simply confirms the existence of a fear of persecution. Therefore, until this question is asked, no one can be sure as to whether or not the absence of overt demonstration of his faith is due to fear of persecution. The question forms part of the legal requirements of the proper application of Art 1A(2); it is in answering this question that the Authority engages on a factual assessment of the merits of an applicant’s case.

[36] In this case, before the Authority could reach a view on whether Mr R had a well-founded fear of persecution, it had to ask itself why it was that Mr R would worship covertly when in Iran. Its failure to do so has meant that it has erred in law by failing to ask itself a legally required question. It has also resulted in the Authority reaching an unreasonable decision. Without knowing why Mr R would choose to worship discreetly and covertly in Iran, the Authority could not reasonably exclude the likelihood that he would do so because he was too afraid to worship openly. It follows that Mr R’s application for refugee status will need to be reconsidered by the Authority, in the light of the law as set out herein.

[37] The view I have reached means that it has not been necessary for me to consider the way in which the Authority dealt with the other grounds of Mr R’s claim for refugee status.

Result

[38] The application for judicial review is successful. The Authority’s decision is set aside. The application for refugee status is referred back to the Authority for reconsideration.

[39] The parties have leave to file memoranda on costs, if that is necessary.

Duffy J