V (Chile) v Legal Services Commissioner [2024] NZHC 2802 (27 September 2024)

Last Updated: 7 November 2024

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF THEIR CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-002988 [2024] NZHC 2802

UNDER	Section 59 of the Legal Services Act 2011
IN THE MATTER OF	an appeal under s 10(3) and 10(4)(d)(i) the Legal Services Act 2011 and s 56(1) Act
BETWEEN	V (CHILE) Appellant
AND	LEGAL SERVICES COMMISSIONER First Respondent

Hearing:	6 August 2024
Appearances:	Appellant in person L Hansen for the First Respondent
Judgment:	27 September 2024
Reissued:	11 October 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 27 September 2024 at 11.00am and reissued on 11 October 2024 pursuant to Rule 11.5 of the High Court Rules

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

Registrar/Deputy Registrar

Solicitors/Counsel:

Legal Aid Services, Wellington L Hansen, Wellington

Copy to: Appellant

V (CHILE) v LEGAL SERVICES COMMISSIONER [2024] NZHC 2802 [27 September 2024]

Introduction

• [1] V¹ appeals from a decision of the Legal Aid Tribunal (the Tribunal) refusing to grant her legal aid for a fourth application for refugee or protected person status.

• [2] On 9 November 2023, the Tribunal upheld the decision of the Legal Services Commissioner (the Commissioner) finding that the prospects of success of V’s claim did not justify a grant of legal aid.²

• [3] Before determining whether the Tribunal’s decision was wrong in law, I set out the relevant background and V’s previous claims.

Background

• [4] V is a Chilean national. She arrived in New Zealand in 2017 on a one-year student visa.

First claim

• [5] On 15 February 2018, V lodged a refugee and protection claim. The first claim was based on the following events in Chile:

(a) In 1999 she was dismissed from a part-time teaching position at a university after filing a complaining about a staffing matter.

(b) In 2012 she was dismissed from a part-time teaching position at a police academy as a result of discrimination.

(c) A liquor store she operated between 1999 and 2013 was closed down by the bank and she was forced to leave the premises because she owed money to it. V disputes this.

1. The applicant’s name and identifying particulars are confidential pursuant to s 151 of the Immigration Act 2009.

² [Redacted].

(d) In 2015 V believed her ex-husband bribed the police to change her statement about an incident where he verbally abused her and broke one of her son’s ankles.

(e) After her arrival into New Zealand and the death of her father, V became involved in a dispute over the ownership of the family home, resulting in the lodging of various legal proceedings and the falling out with her family. In 2019, she filed a petition with the Inter-America Commission on Human Rights on the basis the Chilean Government was not complying with property rights, and she believed that she was at risk of serious harm because she had reported corruption in the courts, the banking sector, and the land registry office.

• [6] V’s first claim was refused by the Refugee Status Unit (RSU) so she appealed to the Immigration and Protection Tribunal (IPT). The IPT found she had been wrongfully dismissed on both occasions, however, it did not find merit in any of her further claims. Objectively, V did not have a well-founded fear of persecution. The appeal was dismissed.³

Second claim

• [7] In June 2019, V filed a second claim. The RSU was satisfied that there were significantly changed circumstances to allow a second claim, but ultimately declined the claim on 30 June 2020.

• [8] V maintained her account from the first claim, but added further that she was at risk of serious harm at the hands of the Government, the police, various university personnel, the courts, her family members and their neighbours. She pointed to the following matters as demonstrating the risk of serious harm:

(a) irregularities in her Chilean national identification documents;

(b) a biased Court decision about her son’s housing situation;

³ AH (Chile) [2019] NZIPT 801536.

(c) the Court had wrongfully archived an “abandonment of procedure application” in relation to the bank which had previously taken action against her;

(d) her lawyer acting on the above matter had disappeared;

(e) the company she worked at was being investigated for corruption;

(f) she had cut off all contact with her family members; and

(g) civil unrest in Chile and the COVID-19 pandemic, which had worsened.

• [9] On 30 June 2020, the RSU declined this second claim and V appealed to the IPT.

• [10] On 30 April 2021 the IPT dismissed that second appeal.⁴ Regarding V’s account from the first claim, the IPT relied on s 231 of the Immigration Act in finding no reason for it to depart from the “cogent and persuasive findings” it set out in the first appeal. On her further allegations in the second claim, the IPT did not find these as exposing her to risk of serious harm, and concluded there was no credible evidence that anyone had attempted to, or wanted to, harm her for any reason. In particular, the IPT noted that the numerous court actions lodged by V were aimed at protecting her individual rights, as opposed to making wider statements about corruption, the latter being one of her grounds for fear of persecution.

Third claim

• [11] On 28 May 2021, V made a further claim for recognition as a refugee or protected person. That claim was rejected on 1 July 2022. The RSU considered that the third claim was a repeat of previous claims which had been held to be unfounded. The RSU did not consider that the further claim had disclosed any different or greater risk of persecution should she be returned to Chile than her previous claims.

⁴ AK (Chile) [2021] NZIPT 801809.

Application for legal aid for fourth claim

• [12] V is now pursuing a fourth refugee and protection claim before the RSU.

• [13] On 17 February 2023, V applied for civil legal aid.

• [14] On 28 February 2023, the Commissioner sought further information. Replies were received on 14 and 15 March 2023.

• [15] On 18 April 2023, the Commissioner refused the application. The Commissioner found that the information provided did not demonstrate that the further claim represented a significant change of circumstances as required by s 140(1) of the Immigration Act 2009, and on that basis, there was no prospect the claim would meet that jurisdictional threshold. The Commissioner further found that even if the jurisdictional threshold had been met, the information provided did not show any prospect that the circumstances relied upon could establish an objective risk of serious harm.

• [16] On 16 May 2023, V applied to have the Commissioner’s decision reviewed.

• [17] On 6 July 2023, the Commissioner confirmed her original decision.

• [18] V applied to the Tribunal to review the Commissioner’s decision.

Decision of the Tribunal

• [19] On 9 November 2023, the Tribunal declined the review of the Commissioner’s decision. The Tribunal was not persuaded the Commissioner’s decision was manifestly unreasonable, so as to justify its intervention, nor was it wrong in law. The Tribunal considered V’s second claim and the IPT’s findings, before noting the constraint of s 140 of the Immigration Act to prevent abuse of the system. The Tribunal does not appear to have been aware of V’s third claim, which had been rejected.

• [20] The Tribunal referred to BD (India) v Legal Aid Tribunal, where this Court said that there may still be a significant change of circumstances to meet the s 140 threshold

even where a subsequent claim is made on the same facts or grounds, if there has been an intensification of risk of persecution through a development or the applicant’s own conduct.⁵

• [21] The Tribunal acknowledged that even though the dispute between V and the bank featured in her prior two claims, that was not itself fatal to her proposed further claim. It considered the question was:⁶

...whether the July 2022 decision of the Chilean authorities not to pursue the applicant’s claim of fraud against the bank could be considered as heightening the risk of persecution, giving rise to a significant change in circumstances.

• [22] The Tribunal found that the decision of the Chilean authorities could not be seen to increase the risk of persecution. The Tribunal noted that s 140 of the Immigration Act “impacts the prospects of the third claim’s success to such a significant extent that a grant of legal aid cannot be justified.”⁷

• [23] Before determining whether the Tribunal erred, I set out the relevant law.

Relevant law

• [24] The appeal is brought under s 59 of the Legal Services Act 2011 which provides:

59 Appeal on question of law

If the Commissioner or an applicant considers that the Tribunal’s determination is wrong in law, the Commissioner or the applicant (as the case may be) may appeal to the High Court on the question of law, and the appeal must be dealt with in accordance with the rules of court.

• [25] V submits that the Tribunal erred in assessing the new circumstances that have arisen since her previous claims, which she considers indicate systemic financial persecution such that her prospects of success merit granting legal aid.

⁵ BD (India) v Legal Aid Tribunal [2018] NZHC 2542 at [40].

⁶ Above n 2.

⁷ At [42].

• [26] The Commissioner may refuse to grant legal aid if the applicant’s prospects of success are not sufficient to justify the grant of legal aid.⁸

• [27] The Court of Appeal considered the meaning of “prospects of success” in JMM v Legal Services Agency and the relevant considerations:⁹

• [51] We consider that the words “prospects of success” should speak for themselves. As we will discuss later, various considerations may be relevant to the evaluation of the phrase in a particular case. The reasonable private litigant approach may assist in this evaluative exercise but it is really part of the policy rationale and not a test. It is certainly not a test to be applied in a rigid manner.

• [52] We do not consider that Priestley J in Legal Services Agency v Hosseini was purporting to lay down a different test. Rather, Hosseini is an example of a case where the consequences to the individual (including the possibility of persecution should the applicants be returned to Iran) were so serious that even a slim chance of success was deemed to be sufficient to justify the continuation of legal aid.

• [28] The prospects of success of V’s further claim were considered in the context of the requirements of the Immigration Act. Section 140 of the Immigration Act is relevant to subsequent claims and it is necessary to consider whether the Tribunal erred in its interpretation and application of s 140, which I consider below.

Did the Tribunal err in applying s 140 of the Immigration Act?

• [29] Section 140 prescribes the limitation on subsequent claims as follows:

140 Limitation on subsequent claims

(1) A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied—

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

(b) the change in 1 or more of the circumstances was not brought about by the claimant—

(i) acting otherwise than in good faith; and

⁸ Legal Services Act 2011, s 10(4)(d)(i).

⁹ JMM v Legal Services Agency [2012] NZCA 573, [2013] 1 NZLR 517 at [51]- [52].

(ii) for a purpose of creating grounds for recognition under any of sections 129 to 131.

(2) For the purposes of determining the matter in subsection (1), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.

(3) A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim—

(a) is manifestly unfounded or clearly abusive; or

(b) repeats any claim previously made (including a subsequent claim).

• [30] Before a subsequent claim can be considered, the refugee protection officer (RPO) must be satisfied that there has been a “significant change in circumstances material to the claim since the previous claim was determined”. The Court of Appeal in WK v Refugee and Protection Officer explained the type of change in circumstances that may be relevant under s 140: ¹⁰

[43] Inherent in the application of s 140 to a subsequent claim is the assessment of any new risk identified by the claimant in that subsequent claim. This may include a change in circumstances in the refugee’s country of origin, an intensification of pre-existing factors that increase the risk of persecution, or where an individual’s conduct has heightened their risk of persecution. As was submitted by Ms Jerebine on behalf of the RPO, s 140(1) allows sur place claims to be considered (subject to a good faith test), while s 140(3) prevents an ongoing cycle of repeated, groundless claims. There is no statutory limit on the number of claims a person can make, nor any time limitation on when a claim can be made.

Approach of Tribunal

• [31] The Tribunal considered V’s previous claims and identified that the proposed claim (like the previous claims) related to disputes between V and banks in Chile. The Tribunal acknowledged that even if V relied on the same grounds in pursuing a further claim, the issue was whether any change in circumstances indicated an intensification of risk of persecution:¹¹

There may have been an intensification of risk through a development, or the applicant’s own conduct could heighten the risk of persecution, and those may

¹⁰ WK v Refugee and Protection Officer [2018] NZCA 258, [2019] 2 NZLR 223 at [43].

¹¹ At [41].

meet the significant change of circumstances threshold, even if the broad grounds remain the same.

• [32] I accept that the Tribunal adopted the correct approach by considering whether the change in circumstances indicated an intensification of risk. V’s grounds of appeal relate to the Tribunal’s assessment of those circumstances.

Change in circumstances

• [33] V argues that there has been a significant change in circumstances material to her claim and referred to the following:

(a) On 10 August 2022, the 7^th Guarantee Court of Santiago approved the decision of the Public Ministry refraining from any judicial investigation into V’s claim of fraud by Banco Santander “as there are no grounding facts of a crime in the suit”.

(b) On 17 August 2022, the District Attorney’s Office of Chile confirmed that it would not reopen V’s fraud claim against Banco Santander noting that “the criminal action is expired regarding the misdemeanour claimed, therefore the defendant’s liability regarding the facts is waived.”

(c) On 8 December 2022 a further confession of debt was filed by Ivan Sepulveda-Ortiz for a debt allegedly owed to Banco CrediChile for

$1,102,783 against V.

(d) On 7 September 2023 the 17^th Civil Court of Santiago resolved that proceedings by Banco Del Estado (C-7014-2005) against V had been abandoned. The Court rejected V’s request for compensation because it related to a different proceeding.

(e) In November 2023, V filed new complaints in Chile:

(i) On 18 November 2023, she filed a complaint against Judge Rocio Perez Gamboa, being the Judge who made the orders on 7 September 2023.

(ii) On 20 November 2023, she filed a complaint with the Superintendency of Higher Education in relation to Mr Calaudio Melandri’s degree, which she forwarded to the national prosecutor.

(f) New information as to the health of V’s son in Chile.

• [34] I now consider each of the above circumstances.

Decision not to pursue fraud investigation against Banco Santander

• [35] The Tribunal did not consider that the decision of the Chilean authorities not to pursue V’s claim of fraud against Banco Santander indicated a heightened risk of persecution. The Tribunal also observed that “[t]here is no credible evidence of serious potential harm to the applicant arising from the dispute”.¹²

• [36] V argues that the change in circumstances regarding her fraud claim demonstrates that Banco Santander has the protection of the prosecutor’s office. V argues that the prosecutor is wrong, and the facts she reported constitute a crime. Further she argues that her claim involved a major fraud claim that carries a limitation period of 10 years.

• [37] The issue here is whether the change in circumstance indicates an increased risk of persecution of V. I agree with the Tribunal’s finding that the decision not to investigate V’s claim of fraud is not evidence that V will be persecuted or that the risk has been heightened. The Tribunal did not err in this regard.

¹² Above n 2.

Abandonment of proceedings by Banco del Estado

• [38] In relation to the decision of the 17^th Civil Court of Santiago confirming the abandonment of proceedings (C-7014-2005), the Tribunal did not consider that this modified the risk assessment. V relies on the abandonment as evidence that the debt did not exist and therefore argues that this demonstrates a risk of serious persecution by the bank. She also argues that the refusal to award compensation is also evidence that the judiciary is willing to side with the bank.

• [39] The abandonment is not evidence that the debts did not exist. It is evidence that the plaintiff had not taken any steps for a three-year period and therefore the claim was deemed abandoned.

• [40] As to the refusal to award compensation, the decision notes that this was because the claim for compensation related to another matter.

• [41] In these circumstances, I do not consider that the Tribunal erred in finding that this change in circumstances did not indicate that there was an increased risk of persecution of V.

New confession of debt

• [42] The Tribunal did not consider the new confession of debt that had been filed on 8 December 2022 (C-1495-2022) in the 16^th Civil Court of Santiago regarding a debt of $1,102,783 allegedly owed to Banco CrediChile. That appears to be the same debt of $1,102,783 that was the subject of a confession of debt filed on 26 January 2018 for the same amount (C-2966-2018).

• [43] There is also a confession of debt filed on 26 May 2017 for $1,057,186 allegedly owed to Banco Santader-Banefe (C-11536-2017).

• [44] V argues that she is the subject of financial persecution because “illegal debts” have been filed against her and are awaiting her return to Chile. All the confessions of debt have been filed by the same lawyer, Ivan Sepulveda-Ortiz.
• [45] V refers to a debt statement dated 9 March 2023 from the “committee for the financial market” which indicates that there is no information of direct or indirect debt in the name of V. V relies on this statement as demonstrating that she owes no debt.

• [46] V argues that the pattern of lawsuits filed by different financial institutions, but managed by the same attorney, suggests a concerted co-ordination and strategy to harass her and keep her in a situation of economic and legal vulnerability. This Court cannot assess the validity of the action taken by the banks in filing the confessions of debt. They are evidence of debt claims against V in circumstances where the debt statement suggests there are no debts. What is relevant is whether the new confession of debt indicates an increased risk of persecution.

• [47] The 2022 confession of debt appears to relate to the same debt that is the subject of the 2018 confession of debt for the same amount, allegedly owed to Banco CrediChile. The Court has no other evidence as to the motivations or conduct of Banco CrediChile. The new confession, however, does not demonstrate that V is facing systemic financial persecution. It is evidence that Banco Santader-Banefe and Banco CrediChile have instructed the same legal counsel and are pursuing debt claims against

V. There is no evidence as to how the filing of these confessions of debt puts V’s safety at risk or indicates that she is facing real and imminent danger.

• [48] While the Tribunal did not consider this change in circumstance, I do not consider that the December 2022 confession of debt is a significant change of circumstance such that it indicates an increased risk of persecution of V. This is particularly so where it relates to the same alleged debt that was known in 2018.

• [49] I now consider V’s new complaints against the judge and Calaudio Melandri.

Complaints against officials

• [50] V relies on her complaints against officials in November 2023 and says that this has “further intensified the persecution” against her. Her notice of appeal notes that:

Given the apparent need for the IPT, RSU, the Commissioner, and the Legal Aid Tribunal to consider a life-threatening situation to validate my case, I have decided to take decisive actions to support my claims.

• [51] V then refers to her complaints filed on 18 and 20 November 2023.

• [52] V made the complaints after the Tribunal issued its decision on 9 November 2023. The Tribunal did not therefore have an opportunity to consider that change in circumstances.

• [53] Under s 140(1)(b), an RPO cannot consider a subsequent claim unless satisfied that the significant change in circumstance was not brought about by the claimant acting otherwise than in good faith and for a purpose of creating grounds for recognition under any of ss 129 to 131.

• [54] I accept that the complaints alone do not evidence increased persecution. Further, they appear to have been made for the purpose of supporting V’s claim. Her notice of appeal indicates that she made them because of the need of IPT, RSU, the Commissioner and the Tribunal to consider a life-threatening situation. That indicates that the purpose was to bolster her prospects of success. That indicates that she was acting other than in good faith.

• [55] I consider that the circumstances in which V made the complaints engage 140(1)(b) and therefore do not assist her.

Medical condition of V’s son

• [56] V provided information to the Tribunal on 22 September 2023 as to the health of her son. She argued that he was in an extremely vulnerable situation in Chile because the Chilean State has refused to provide him with his fundamental and constitutional guarantees.

• [57] The health of V’s son was the subject of her previous claims. V had argued that the authorities were attempting to harm her through their mistreatment of her son. The IPT considered it implausible that the failure of the police to prosecute the party

in the road accident with her son was evidence that V was being targeted by the authorities.

• [58] The further evidence as to the mental health of V’s son does no more than indicate that he has some health issues. It is not evidence of persecution of V through her son.

• [59] I do not consider that the health issues faced by her son, indicates an increased risk of persecution for V.

Conclusion

• [60] For the reasons set out above, I do not consider that the Tribunal made an error of law in finding that V’s prospects of success were not sufficient to justify the grant of legal aid. The new circumstances she relies on do not indicate an increased risk of persecution and the Tribunal acted lawfully in refusing to grant legal aid to V.

Result

• [61] The appeal is dismissed.

Tahana J