AL v Immigration and Protection Tribunal [2014] NZHC 1810 (1 August 2014)

Last Updated: 11 August 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-001586 [2014] NZHC 1810

BETWEEN	AL Plaintiff
AND	IMMIGRATION AND PROTECTION TRIBUNAL First Defendant CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Second Defendant

Hearing:	29 July 2014
Counsel:	RS Pidgeon for Plaintiff J Foster for Defendants
Judgment:	1 August 2014

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Friday, 1 August 2014 at 4.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

RS Pidgeon, Auckland.

Crown Law, Wellington.

AL v IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZHC 1810 [1 August 2014]

Introduction

[1] The plaintiff, who will be referred to as Mr AL, is engaged in his third attempt to claim refugee status in New Zealand and his second attempt to claim protected person status. This judicial review application is brought against the decision of the Immigration and Protection Tribunal (the IPT) of 28 February 2013 in which the IPT found that the appellant:¹

(a) Was not a refugee within the meaning of the Refugee Convention;

(b) Was not a protected person within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture);

(c) Was not a protected person within the meaning of the International

Covenant on Civil and Political Rights.

The IPT dismissed Mr AL’s appeal under s 195(1)(a) of the Immigration Act 2009.

Background

[2] Mr AL is an Iranian citizen. He entered New Zealand in April 2007 and applied for refugee status. His first refugee application was rejected by the Refugee Status Appeals Authority (the RSAA) on 31 March 2008. Mr AL had claimed that in Iran he was considered a “martyr’s son” and in 2006 he had sought assistance from the Martyr’s Association in obtaining new employment. He was criticised by an official and there was an altercation and the official was injured. He claimed that he was arrested and ordered to write a confession in relation to converting from Islam, supporting a monarchist organisation and distributing anti-regime materials, and that he escaped from custody and was able to leave Iran with the help of some Kurdish men who provided him with an Iranian passport. The RSAA found that his claims

were not credible and dismissed the appeal.² Mr AL then returned to Iran in August

_2008.

¹ _{[Mr AL] [2013] NZIPT 800408 at [133].}

² Refugee Appeal No 76129 (31 March 2008).

[3] Mr AL re-entered New Zealand in March 2011. He applied for refugee status again and for the first time sought to receive protected person status. This application was refused and he appealed to the IPT. The IPT refused his appeal on

22 November 2011. The second claim was on the basis that when he had returned to Iran with his wife he was accused by an official of being a traitor, as he was the son of a martyr who had applied for refugee status. He was ordered to act as an informer. His wife returned to New Zealand. She then advised him that she regarded herself as separated from him and was withdrawing the sponsorship that she had previously made available to him.

[4] Mr AL claims he failed to act as an informer and left Iran without permission. The IPT concluded that the claimed encounter with the official and his recruitment as an informer were not credible. It was not accepted that he had been identified as an asylum seeker or that he had an adverse profile with the authorities.³

[5] The third and current application, which is the subject of these proceedings, involved events in 2012. This was his third refugee claim and second protected person claim. Mr AL had returned to New Zealand and was in a hostel. He claimed that another resident of the hostel, Mr Singh, began to pick on him, accused him of being a terrorist and claimed that he would soon be deported which was what he deserved. Mr AL recorded on his cellphone an incident where Mr Singh was ranting at him. He played that call back to the hostel manager. He alleged that Mr Singh was interfering with his clothes and threatening to kill him. After three weeks Mr Singh was excluded from the hostel. After this he allegedly twice telephoned Mr AL at the hostel threatening him that he would soon be deported, and making adverse comments about Iranians and Muslims.

[6] Mr AL claimed that his mother in Iran had received a telephone call from someone who appeared to be a Government official making inquiries about him. The person said that it was known that he was in New Zealand and asked what he was doing there. He asked what, if Mr AL was living with his wife, was he doing at a refugee hostel? The mother did not know of his separation from his wife at the

_{time of the call.}

³ AU (Iran) [2011] NZIPT 800201.

[7] Mr AL argued that although Mr Singh hates the Iranian government it is possible that he “might have feigned friendliness towards an enemy in order to get attention” and told the Iranian authorities about Mr AL’s seeking refugee status.

[8] Mr AL also held concerns for his safety because of his participation in a demonstration. He was appearing in a protest against a Saudi Arabian journalist who was facing a death sentence. The church leader in charge of the demonstration, Bryan Johnston, had handed out banners and addressed the gathering through a megaphone. There were placards. Approximately 15 to 20 persons participated. Mr AL claims he saw cars slowing down but he did not notice anyone taking photographs. Some weeks later he learned that there were two video clips of him in the demonstration in Newmarket that had been posted on YouTube. Thus, he was visible on videos that were widely available.

[9] Mr AL’s marriage was dissolved in early 2011. His former wife is no longer friendly with him and is not supporting his efforts to stay in New Zealand. He believes that it is possible that she has contacted the Iranian Embassy about him, although he cannot provide any evidence of that and is not certain of it. He is aware of his former wife having made one call to the Iranian Embassy in 2008 about her visa. She has made complaints to the New Zealand Police on occasions about his behaviour towards her.

[10] Mr AL engages in some political activities on Facebook. He posts to share with friends images which have political significance. He also claimed there are other photographs on his Facebook showing sympathies for the former Shah and his family.

[11] He has a tattoo on his right arm of the historical figure Cyrus the Great. He has posted a photograph showing his arm with that tattoo on Facebook. He claimed that this will work against him in Iran, where all pre-Islamic history has been eliminated.

[12] Mr AL claimed that since the IPT’s earlier decision, there had been a

significant change in circumstances due to him attending a protest outside the Saudi

Arabian Consulate in Auckland in 2012, him fearing that his ex-wife or his room- mate at the refugee hostel had informed the Iranian authorities that he was seeking refugee status in New Zealand, and that Mr AL’s mother had received a call from Iranian authorities asking questions about him and why he was at a refugee centre.

The decisions

[13] On 24 August 2012 the Refugee and Protecting Officer (RPO) dismissed Mr AL’s application on the basis that it lacked credibility. The RPO considered that there was a no jurisdiction in relation to the refugee application because Mr AL engineered two of the three videos of him protesting outside the Consulate to be uploaded. This change in circumstance was not in good faith as required by s

140(1)(b) of the Act. Given the adverse credibility findings, the RPO also declined the protected person status application on the basis that there was no evidence showing that the plaintiff would be in danger of being tortured or subjected to cruel or inhumane treatment if he was sent back to Iran.

[14] Mr AL appealed the RPO’s determination to the IPT on 3 September 2012. On 28 February 2013 the IPT dismissed the appeal. In relation to the protected person’s claim, the IPT considered that the evidence presented was not credible. There was no risk that Mr AL would be mistreated due to being a failed asylum seeker. It rejected his claim that the video of the demonstration would be raised with Iranian authorities and so would create danger to him.

[15] The IPT decided that two of the three videos were made to strengthen the application. The IPT considered that Mr AL featured prominently in both videos and for a significant part of one video was looking directly at the camera (nine to 10 seconds out of 59 seconds). Mr AL’s explanation that he had been invited along by a Pakistani Christian friend and the filming was by passing motorists was considered implausible. The IPT stated that:⁴

This alleged lack of knowledge is not credible given the prominence from which the appellant features and his apparent proximity to the film maker when looking directly at the camera.

⁴ At [75].

[16] Further, there was nothing about Mr AL’s role in the demonstration that would have caused an independent onlooker to focus on him. The IPT considered that “such a coincidence is not plausible”. On this basis the IPT found that:⁵

The appellant must have had a hand in arranging someone to film him and in the posting of the video clips on YouTube.

[17] In relation to the Facebook posts the IPT considered this was of no moment and the Iranian authorities would not be interested in him. Similarly the tattoo would not be seen as an offence leading to torture and Mr AL could take steps to avoid detection.

[18] On 25 March 2013 Mr AL applied for judicial review of the IPT’s decision.

This was prior to s 249 being amended to require leave to bring judicial review.⁶

The issues

[19] The amended statement of claim contains a considerable number of allegations in compressed form. Mr Pidgeon who appeared in support of the application in summarising his submissions stated that the issues raised by Mr AL were as follows:⁷

(a) A lack of procedural fairness arising from the failure to call a potential witness, Bryan Johnson.

(b) A lack of procedural fairness arising from a failure to ensure a witness summons was issued and served to compel Mr AL’s former wife to give evidence as to events which occurred at Tehran Airport.

(c) There was procedural error and unfairness in the finding by the IPT of bad faith, insofar as the IPT found that Mr AL had purposely and intentionally placed himself to the fore in a video clip of the protest

_{and then put it on YouTube for the purposes of embellishing his claim}

⁵ _{At [77].}

⁶ Section 249 of the Immigration Act 2009 was amended as from 19 June 2013 by the Immigration Amendment Act 2013. Section 249 at that time simply prevented a judicial review being brought prior to a final appeal to the IPT.

⁷ At paras 31 and 32.

that he could suffer significant prejudice if he had to return to Iran. I

will deal with this issue first.

The statutory framework

[20] Section 140(1)(b)(ii), in relation to the RSB, and s 200(1)(b), in relation to the IPT, refer to determinations of subsequent claims. The wording is similar. Section 200(1) and (2) at the relevant time provided that the IPT must first consider:

200 Determination of appeal against refusal or declining of subsequent claim for recognition as refugee or protected person

(1) Where an appeal is brought under section 195(1)(a), the Tribunal must first consider—

(a) whether there has been a significant change in circumstances material to the appellant’s claim since the previous claim was determined; and

(b) if so, whether the change in 1 or more of the circumstances was brought about by the appellant—

(i) acting otherwise than in good faith; and

(ii) for a purpose of creating grounds for recognition under section 129.

(2) The Tribunal must dismiss the appeal if it determines that—

(a) there is no significant change in circumstances; or

(b) the change in 1 or more of the circumstances was brought about by the appellant—

(i) acting otherwise than in good faith; and

(ii) for a purpose of creating grounds for recognition under section 129.

[21] This reference in the section to s 129 has since been extended to recognition under any of ss 129 to 131. Thus, while before the IPT, s 200(1)(b) related to a refugee claims under s 129 only and did not relate to the protected person claim, it now relates to protected person claims as well. This was recognised by the IPT in its decision, which did not extend the good faith factor in s 200 to the protected person claim. It found that Mr AL was acting otherwise than in good faith in relation to the refugee claim and on this ground refused the refugee status appeal.

[22] In relation to the protected person claim, it did not find Mr AL’s evidence to be credible and found that there were no substantial grounds for believing that he would be in danger of being subjected to torture if deported from New Zealand. It also found that there were no substantial grounds for believing that he would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if he was deported from New Zealand.

Finding of bad faith

[23] Section 200(1)(b) of the Act requires the IPT to first consider whether the change “in one or more of the circumstances” was brought about by the appellant “acting otherwise than in good faith”. Under s 200(2) it must dismiss the appeal if it determines that the change in one or more of the circumstances was brought about by the appellant acting otherwise than in good faith. The section says nothing about onus of proof. The IPT must first “consider” and second “determine” whether the appellant so acted. There is a slight difference in the wording of s 140 where the Refugee and Protection Officer must be “satisfied” the change in one or more of the circumstances was not brought about by the claimant acting otherwise than in good faith.

[24] Mr Pidgeon in support of his submission that the IPT approached the issues wrongly from an onus of proof perspective relied on the following statements quoted in Jiao v Refugee Status Appeals Authority from the Handbook on Procedures and Criteria for Determining Refugee Status (1979):⁸

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

⁸ Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) at [28].

[25] Mr Pidgeon submitted that there was a reasonable doubt as to a lack of bad faith and that this should have been determinative in favour of the appellant, although he did not go as far as to say that the criminal standard of proof applied.

[26] In Jiao it was recognised, quoting Commissioner of Police v Ombudsman,⁹ that a reference to onus of proof in the immigration context is “not fully apt”.¹⁰ The question involves the assessment of a matter of objective fact and is “not sensibly amenable to a standard or onus of proof”.¹¹ There is no need to add a gloss to the plain words of s 200. The IPT has to make a determination as to good faith. In doing so the particular difficulties faced by refugee claimants in making out their claims has to be recognised.¹² This latter consideration is often referred to as “the

_{benefit of the doubt” principle.}¹³

[27] The IPT did not discuss specifically the onus of proof, but did set out its general approach. It applied an earlier IPT decision that the “... good faith principle must be applied with caution, not zeal, on a case by case basis”.¹⁴ It is only in “clear cases” that an asylum seeker will fall outside the Refugee Convention by reason of an absence of good faith.

[28] I respectfully consider the IPT’s approach to be correct and consistent with the authorities that I have referred to. It is a mistake to try to define an onus or standard of proof. The IPT must carry out its consideration of the facts cautiously, recognizing the difficulties of proof that will arise in the immigration context. It must extend the benefit of the doubt to an appellant in appropriate cases. It will find a lack of good faith only in a clear case. That is what the IPT did. It extended the benefit of the doubt to the appellant in relation to his agreement to participate in the demonstration.

[29] However, the IPT went on to find that Mr AL had purposely and intentionally placed himself to the fore of the protest. It explained its reasons for doing so. Both

⁹ _{Commissioner of Police v Ombudsman [1988] 1 NZLR 385 at 391.}

¹⁰ _{Jiao v Refugee Status Appeals Authority, above n 8, at [14].}

¹¹ _{Jiao v Refugee Status Appeals Authority, above n 8, at [14].}

¹² _{Jiao v Refugee Status Appeals Authority, above n 8, at [21], [30] and [31].}

¹³ _{BV v Immigration Protection Tribunal [2014] NZHC 283, [2014] NZAR 415 (HC) at [56].}

¹⁴ Refugee Appeal No. 2254/94 re HB [1995] IJRL 332 at [9].

video clips featured the appellant with prominence; the second almost to the exclusion of the other demonstrators. There was no rational basis for this to occur, save for him arranging for this to happen.¹⁵ The IPT reminded itself of the need to make a finding of a lack of good faith only in clear cases, but held that it was satisfied that this was so. There can be no criticism of its approach. Mr AL put forward no alternative explanation for the odd circumstances of the video. The merit of the IPT’s finding is in my view clear.

[30] Accordingly, I find there to have been no error in approach or procedure by the IPT when it concluded that the change was brought about by Mr AL otherwise than in good faith.

Failure to call Mr Johnson

[31] There were in effect two legs to this submission for the plaintiff. First, it was claimed by Mr AL in an affidavit filed in these proceedings after the IPT decision, that he asked his counsel in the IPT hearing, Ioana Uca, on a total of five times to call Mr Johnson as a witness, but that she did not do so. As a second leg, Mr Pidgeon submitted that in the course of evidence it was proposed that after the hearing some evidence from Mr Johnson might be presented to the IPT but this was not done.

[32] Mr Johnson swore two affidavits. He regularly acts as a support person for those seeking refugee status or protected person status. He advocates for them often as a McKenzie friend. He is also a member of the Auckland Baptist Tabernacle and other organisations. He organised the protest against the arrest by Saudi Arabia of the journalist. He described the cause that led to the protest and the history of the protest in support of the journalist.

[33] Mr Pidgeon also placed reliance on some remarks Mr Johnson made about a meeting with the Iranian Ambassador on 2 November 2012. The Ambassador asked

_{him about two persons. He went on to say:}

¹⁵ [Mr AL], above n 1, at [76].

One person was an Iranian in Auckland married a kiwi girl (he could have said Kurdish girl as the plaintiff ’s ex-wife is Kurdish) and that was quite clearly the Plaintiff (viewed in retrospect) and also about a Iranian man who is married with a daughter back in Iran (who is a person whom I am assisting and who has a claim in the Court of Appeal).

Mr Khah boasted that of the 8000 Iranians in New Zealand he knew everything they were doing and he could not understand why people sought refugee status to leave Iran, he said they were either mentally ill or liars as Iran is the best country and Islam is the best religion.

I knew all this material before the Tribunal hearing and was ready and available to give evidence.

Mr Pidgeon argued that this was highly relevant material that should have been before the IPT.

[34] He also relied on another excerpt from Mr Johnson’s first affidavit referring to another person “X” as a virulent anti-Muslim and stated:

I have it on very, very reliable sources that [X] was the one who uploaded the clip to You-Tube.

[35] Mr AL’s former counsel, Ms Uca, filed an affidavit, privilege having been waived. She stated that while she discussed the possibility of calling Mr Johnson as a witness she decided not to because it was not in dispute that Mr Johnson’s church had organised the protest, or that Mr AL had attended. She further noted that Mr AL did not know Mr Johnson personally and did not have his contact details. This evidence has not been contradicted.

[36] It is possible for counsel error in failing to call important evidence to be a ground for review.¹⁶ However, such cases will be exceptional. In Lal v Removal Review Authority a defective appeal document had been filed which was material to the Authority’s decision adverse to the appellant.¹⁷ It was held that the appeal document was so plainly incomplete that it should have been obvious to the Authority to make inquiries. McGechan J observed:¹⁸

[T]he finding reached, as relating to the RRA, is based on the facts noted. This was a clear case: total omission, likelihood of oversight, immediate

¹⁶ _{Isak v Refugee Status Appeals Authority [2010] NZHC 1111; [2010] NZAR 535 (HC).}

¹⁷ _{Lal v Removal Review Authority HC Wellington AP95/92, 10 March 1994.}

¹⁸ At 24.

contact available, and no obvious likelihood of delay. It called for response. Less obvious cases, such as slight coverage, or ambiguity, or appeals plainly hopeless on other grounds, could generate a different response. I go no further, at this point, that the clear case; where there is a clear possibility of unfairness if a vital omission is not pointed out, that small step should be taken.

(emphasis added)

[37] In Isak v Refugee Status Appeals Authority counsel’s error led to an important letter not being put to the Authority. A high standard of procedural fairness was necessary, given that the appellant would be delivered to an ungoverned state with no rule of law and risk to life. The letter could well have affected the outcome of the plaintiff’s appeal as it corroborated his claim that he was a member of a clan. If he had been a member of that clan there was significant evidence indicating he would face serious persecution. In allowing the application and quashing the Authority’s

decision it was held:¹⁹

If the factual issue here had been less fundamental, or the evidence less cogent, the result might have been different.

[38] It is necessary, therefore, to consider the relevance of Mr Johnson’s evidence. Since the IPT accepted that there was a protest and that Mr AL participated in it, Mr Johnson’s evidence in regard to the protest did not add anything. It is difficult to see the relevance of the account of the conversation with the Iranian Ambassador. Just why the person being referred to should be Mr AL because he had a Kurdish wife is not made clear. Mr Johnson’s statement that the person being referred to was clearly “Mr AL” is not on its face of much value as it appears to be an expression of his opinion without a firm basis.

[39] Similarly his statement about the deliberate uploading of the video clips to YouTube lacks credibility as a consequence of his extreme generality and its hearsay nature. Of course there is a relaxed regime in relation to the seeking of evidence in the IPT, and cls 8 and 9 of the Second Schedule of the Act make it clear that evidence that would not normally be admissible is admissible. However, evidence of this generality is of virtually no probative value. What he says is contradicted by his

_{later statement “I was not aware of how the YouTube clip was loaded”. Generally}

¹⁹ Isak v Refugee Status Appeals Authority, above n 16, at [79].

Mr Johnson’s evidence contains a great deal of expressions of opinion and hearsay. While he appears to be acting with the best motives, his affidavit reads as an advocate’s submission for Mr AL.

[40] Mr Johnson also provided another affidavit in which he attached some newspaper clippings which indicated that a tattooist in Iran had been arrested and sentenced to a period of imprisonment. The date of the reports was January 2014.

[41] This was not material available to the IPT and is therefore irrelevant for the purpose of this judicial review application. In any event, a newspaper report about what has happened to a tattooist in Iran (as distinct from a person who displays a tattoo on his arm) is not relevant to the point at issue. There is no suggestion that Mr AL is a tattooist.

[42] There was no objection to this evidence being adduced in this Court. However, it is of no material assistance to the plaintiff’s case. Unprocessed generic information about a particular country will be of little weight if it is not directed to the specific circumstances of the parties under consideration, and unless in terms of

date and quality it is demonstrated that it warrants consideration.²⁰ It does not

support his claim that he will be in danger if required to return to Iran.

[43] Indeed, Mr AL’s former counsel appears to have made the correct decision to not call Mr Johnson. His evidence would not have assisted her client’s case.

[44] I would also observe that I accept Ms Foster’s general submission, on behalf of the Chief Executive of the Ministry of Business, Innovation and Employment, that the admission of fresh evidence of this type cuts across the scheme of the Act. It is right that judicial review generally proceeds on the basis of evidence available to the

decision-maker at the time of the decision.²¹ A party has the responsibility to

provide the evidence in support of the case at the hearing before the IPT. Judicial review is not a further opportunity to present that evidence. However, given the lack

²⁰ _{Minister of Immigration v Al-Hosan [2008] NZCA 462 at [59].}

²¹ Northcote Mainstreet Inc v North Shore City Council (2004) 10 ELRNZ 146 (HC) at [68];

Wilfred v Chief Executive of the Department of Labour [2006] NZHC 1098; [2007] NZAR 237 (HC) at [13].

of formal objection to it, I have read it and would have given weight to any truly probative evidence, if there had been any. There was none.

[45] I conclude that all relevant material was before the IPT, and there was no error in relation to the non-calling of Mr Johnson.

Error in failing to call Mr AL’s former wife

[46] Mr Pidgeon submits that Mr AL’s ex-wife could have given evidence in respect of certain events which occurred at Tehran airport in 2008, which led to the second refugee proceedings. In those proceedings, which are not under challenge in this case, credibility findings were made against Mr AL.

[47] There is a suggestion in the submissions that the former wife could have provided evidence about notifying the Iranian Embassy about him, or carrying out steps that were adverse to his interests should he return to Iran. However, there was no credible evidence from any person that she had done any of these things.

[48] Therefore, the same problem arises in relation to this evidence as in relation to that of Mr Johnson. It is that the evidence of the former wife is of no relevance to the matters at issue. It would not have helped Mr AL.

[49] For these reasons this head of claim also fails.

IPT not sufficiently inquisitorial

[50] Mr Pidgeon made a more general submission that the IPT exercised an inquisitorial jurisdiction, and should have made more inquiries of witnesses, in particular Mr Johnson and the wife. He was critical of the IPT for not taking steps itself to enforce the summons that was issued and served on Mr AL’s wife, although he accepted that given there had been no payment of travel expenses when the summons was served, the witness would not have been expected to attend.

[51] There is no doubt that the IPT may of its own motion issue a summons²² and that it also has certain powers of investigation.²³ However, the claimant has a responsibility to establish the claim.²⁴ For the reasons already set out, the potential evidence in question of Mr Johnson and the former wife was not of any particular

relevance at all. In relation to Mr Johnson it also lacked cogency. There was nothing before the IPT that warranted it taking any steps of its volition.

Result

[52] The claim is dismissed.

[53] Costs are reserved for 14 days should the defendants wish to pursue the issue.

...................................

_{Asher J}

22. Practice Note 14.1 of the Immigration and Protection Tribunal 2/2012 (Refugee Protection), Immigration Act 2009, sch 2, cl 11.

²³ _{Immigration Act 2009, sch 2, cl 10.}

24. Jiao v Refugee Status Appeals Authority, above n 8, and BV v Immigration Protection Tribunal, above n 13.