AL (THAILAND) v THE IMMIGRATION AND PROTECTION TRIBUNAL (REMOVED) [2021] NZHC 810

AL (THAILAND) v THE IMMIGRATION AND PROTECTION TRIBUNAL (REMOVED) [2021] NZHC 810[14 April 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-000410[2021] NZHC 810BETWEEN AL (THAILAND)ApplicantAND THE IMMIGRATION AND PROTECTIONTRIBUNAL (REMOVED)First RespondentTHE REFUGEE PROTECTION OFFICERSecond RespondentHearing: 1 March 2021Appearances: C L Le Beau and S G Graham for ApplicantC A Griffin for Second RespondentJudgment: 14 April 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 14 April 2021 at 4 p.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] The applicant (AL) seeks leave to appeal a decision of the Immigration andProtection Tribunal1 who found he was not entitled to protected person status orrecognition as a refugee.Background[2] AL and his wife and daughter are Thai citizens who entered New Zealand in2016 on temporary visas. AL did not disclose to Immigration New Zealand that hehad four criminal convictions for dishonesty and firearms possession offending inThailand. The Crown says he is wanted in Thailand on a number of matters whichinclude multiple charges of fraud and money-laundering linked to an illegal loanscheme. As a result of his failure to disclose his previous convictions, the applicantwas served with a Deportation Liability Notice in August 2017.[3] In September 2017 the applicant claimed refugee and protected person status.2A Refugee and Protection Officer declined his application. In April 2019 AL appealedthat decision to the Immigration and Protection Tribunal. The Tribunal issued adecision denying AL refugee and protected person status.Relevant lawRefugee Status[4] Section 129(1) Immigration Act 2009 (the Act) requires a person be recognisedas a refugee if they fall within the meaning of refugee in the Refugee Convention. TheConvention defines refugee as a person who:3owing to well-founded fear of being persecuted for reasons of race, religion,nationality, membership of a particular social group or political opinion, isoutside the country of his nationality and is unable or, owing to such fear, isunwilling to avail himself of the protection of that country; or who, not havinga nationality and being outside the country of his former habitual residence as1 Immigration Act 2009, s 245.2 Sections 129-1313 Commonly referred to as the Refugee Convention 1951: Convention Relating to the Status ofRefugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954),Article 1A(2).a result of such events, is unable or, owing to such fear, is unwilling to returnto itProtected person status[5] Sections 130 and 131 of the Act stipulate a person must be recognised asprotected if, upon deportation, there are substantial grounds for believing:(a) they would be in danger of torture under the Convention AgainstTorture; and/or(b) they would be in danger of arbitrary deprivation of life or crueltreatment under the International Covenant on Civil and PoliticalRightsunless the person can access meaningful domestic protection in their country ofnationality or former habitual residence.4 Importantly, under s 131(5)(a) "treatmentinherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivationof life or cruel treatment unless the sanctions are imposed in disregard of acceptedinternational standards". Under this s 131(5)(b) states: "the impact on the person ofthe inability of a country to provide health or medical care, or health and medical careof a particular type or quality, is not to be treated as arbitrary deprivation of life orcruel treatment".The Tribunal decision[6] AL claimed protected person or refugee status on the basis that, if he returnedto Thailand, he would be the subject of an unfair criminal charge (a s 112 charge),5 heand his family would be physically harmed by his creditors, and he would be unableto access essential heart medication if imprisoned.[7] At issue in this application is AL's claim he will be unable to access his heartmedication if imprisoned.4 Immigration Act, ss 130(2) and 131(2).5 Specifically, an alleged offence against the monarchy (under the lèse-majesté s 112 law) sentencesimposed under these laws are severe and prisoners convicted of this offence are also treatedharshly.[8] The Tribunal made an assessment of AL's credibility and accepted that, as Ihave noted above, AL:(a) ran an illegal loan scheme from 2005 and is wanted by Thai police oncriminal fraud charges; and(b) does require heart medication to avoid a heart attack.[9] Based on its factual findings about AL's circumstances, the Tribunal foundthere was not a real chance AL would be persecuted if he returned to Thailand.[10] The Tribunal accepted the conditions of detention in custodial facilities couldgive rise to protection concerns capable of being characterised as persecutory if theyviolated international human rights law and constituted serious harm.[11] However, the Tribunal noted the prospect of AL being imprisoned remainedspeculative for two reasons, first the Tribunal found AL was not likely to be chargedwith s 112 offences therefore any imprisonment would be on the basis of the fraudcharges. Secondly, AL told the Tribunal he was confident he would avoid convictionon these charges, a sentiment shared by his lawyer as he had previously successfullydefended such charges.[12] If AL was imprisoned, based on his evidence about the conditions heexperienced during his four previous prison terms, the Tribunal noted the conditionsin prison, although overcrowded, were such that he was likely to be able to see visitorsand to have enough to eat, and previously he was not subject to violence. To reach thestandard required to be considered persecutory a high threshold for the severity ofconditions faced is required and the treatment must be particularly reprehensible.6 TheTribunal acknowledged conditions in Thai prisons are "undoubtedly harsh" butconcluded that the general conditions could not be characterised as particularlyreprehensible to meet this threshold.6 AC (Syria) [2011] 800035 at [85].[13] The Tribunal did acknowledge that if AL was denied his medication whileimprisoned this would be particularly reprehensible. However, based on the evidenceprovided by AL the Tribunal noted while the "level of healthcare provided by prisonsis likely to be substandard none of the relevant information establishes a likelihoodthat the appellant would be prohibited from accessing his own medication intoprison."7 The Tribunal noted AL had legal representation and family in Thailand toprovide him monetary and personal support such that they could access medicationfor him from outside prison and could advocate for him to access the medication whileimprisoned. The Tribunal concluded AL had not established there was a real chancehe would be denied his medication while imprisoned.[14] Based on these factors the Tribunal found AL had not established there was arisk of serious harm should he return to Thailand such that he should be recognised asa refugee. The Tribunal also determined there was no substantial ground for believingAL would be in danger of either being subjected to torture or arbitrary deprivation oflife or cruel treatment such that he should be granted protected person status under theConvention Against Torture or the International Covenant on Civil and PoliticalRights.The applicant's case[15] AL applies for leave to appeal on the basis:(a) The Tribunal failed to apply the correct legal test under s 131 becausethey came to erroneous conclusions on the evidence, and thereforemade two key factual errors which amount to an error of law. Thesefactual errors were:(i) Concluding that it was speculative AL would be imprisoned asthey did not consider the evidence of his Thai lawyer,Mr Rattanasangwan, that AL was likely to be remanded incustody until the conclusion of the fraud case; and7 AL (Thailand) [2020] NZIPT 801586 at [167].(ii) Concluding that AL would likely be able to access prescriptionmedication while imprisoned with no evidence to that effect.(b) The Tribunal failed to apply the rule in Jiao v Refugee Status AppealsAuthority8 as it ought to have afforded AL the "benefit of the doubt"when assessing whether was a real risk of serious harm arising from ALpotentially being denied his medication while imprisoned.The respondent's case[16] Ms Griffin, for the respondent, submits AL's challenge to the Tribunal's factualinferences and conclusions is impermissible and cannot form the basis of a seriouslyarguable question of law. AL's medication needs, she maintained, are not soinsurmountable here to override the clear policy justification of preventing migrantsevading the criminal justice process.Analysis[17] Section 245 Immigration Act allows an appellant who is dissatisfied with thedetermination of the Tribunal on a point of law to apply for leave to appeal to the HighCourt. In determining whether to grant leave this Court must have regard to whetherthe question of law ought to be considered because of its general or public importance,or for any other reason.9[18] The legislative framework in the Immigration Act makes it clear that "it is theresponsibility of a claimant to establish his or her claim for recognitionas a refugeeor protected person".10 Therefore it is the claimant's responsibility to ensure allinformation, evidence and submissions relevant to their claim is provided to therefugee and protection officer.11 Similarly, on appeal it is the appellant's responsibilityto ensure all the information, evidence and submissions are provided to the Tribunal.128 Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA).9 Section 245(3).10 Immigration Act, s 135.11 Sections 133(3) and 135(2)(b).12 Section 226.[19] AL's appeal is based on claims the Tribunal made errors of fact which thereforeled to an error of law. Taafi v Minister of Immigration established that an applicantseeking leave to appeal a factual finding must demonstrate a seriously arguable casethat the Tribunal's factual findings were wrong and that the combination of the errorsin the context constitutes an error of law. 13 The question of law based on allegederrors of fact must also either be of public importance or there must be some otherreason for it to be considered on appeal. If the question of law is not of publicimportance the "other reason" exception can be utilised in exceptional circumstancesinvolving individual justice where a decision is legally flawed.14[20] In Nabou v Minister of Immigration Katz J noted the approach in Taafi was:15consistent with the approach taken in a number of previous cases involvingimmigration appeals on questions of law[t]he decision must be looked at asa whole.16 Findings of fact themselves cannot be impugned unless the factualerrors were of such significance, extent and nature that they would render thedecision legally flawed.17 Value judgments made by the Tribunal in balancingand weighing the competing factors arising in any given case will seldomamount to an error of law.18[21] I am satisfied here that AL has not established the elements required by Taafi.I do not consider AL has demonstrated a seriously arguable case the Tribunal's factualfindings were wrong and that the combination of the errors in the context constitutean error of law. The Tribunal rejected AL's factual claims because AL did not providecredible evidence to support his claims. This is important because as noted above19 itis for AL to establish these facts, not the Tribunal.13 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].14 This approach has been endorsed by the Court of Appeal: Machida v Chief Executive ofImmigration [2016] NZCA 162, [2016] NZLR 721 at [8]15 Nabou v Minister of Immigration [2012] NZHC 3365 at [9].16 For example Butler v Removal Review Authority [1998] NZAR 409 at 419-420; Fa'atafa v ChiefExecutive of Department of Labour HC Wellington AP120/97, 26 April 1999 at [7]; Amosa v ChiefExecutive of the Department of Labour HC Wellington AP208/98, 3 April 2000 at 9-10, 20; Ogosiv Minister of Immigration HC Wellington CIV-2006-485-673, 27 April 2007 at [22]- [23]; Mistryv Minister of Immigration HC Wellington CIV-2009-485-1610, 17 November 2009 at [50];Voratanamatanitu v Chief Executive Department of Labour HC Wellington AP124/96, 11 August1997 at 11: "a technical and semantic analysis of the decision does not aid the appellant inendeavouring to create a 'point of law'.17 Taafi v Minister of Immigration, above n 13, at 7; Faavae v Minister of Immigration [1996] 2NZLR 243 at 246-247; Ogosi, above n 16, at [22]-[23].18 De Borja v Removal Review Authority [1999] NZAR 471 at 476. See also Butler v Removal ReviewAuthority at 412.19 At [18] of this judgment[22] I discuss each finding below.Likelihood of detention without bail[23] To support his contention that it was likely he would be imprisoned, ALprovided a statement from his Thai lawyer, Mr Rattanasangwan. Mr Rattanasangwanstated because there were warrants for AL's arrest it was argued that he would bedetained at the airport upon arrival. I accept Ms Griffin's submission that thisstatement is not supported by reference to any applicable law. The Tribunal notedMr Rattanasangwan's statement, "If [AL] submits himself to police he will not bepermitted bail until the case is heard." This statement, however, could well have meantAL will not be permitted bail until the case on bail is heard.[24] There was also evidence before the Tribunal via a report from Thai lawyers forHuman Rights that the Courts in 2018 there had granted bail to some defendantscharged with s 112 offences. Evidence about the number of people remanded incustody without bail under the dishonesty charges AL may face could have beenprovided to substantiate his claim that it is unlikely he would be remanded on bailpending the complete resolution of these charges. It was not provided.[25] Given too that AL has the onus of proving his claim, I am satisfied the Tribunalwas entitled to conclude on the evidence that, given it had found it was unlikely AL,who was legally represented in Thailand, would be charged with a s 112 offence, andgiven too there was information before it that he had successfully defended charges ofa similar kind before, detention without bail was merely speculative.Access to medication[26] The Tribunal accepted that general prison conditions in Thailand were harsh.That said, it seriously considered, based on the evidence provided, whether there wasa real risk AL would be deprived of his medication if he were imprisoned.[27] In doing so, it considered evidence before the Tribunal. Amongst this evidencewere the following particular matters. AL had previously served four prison sentencesspanning five years, and while prisons were overcrowded, he was allowed visitors andfood. Two reports provided by AL20 did state the level of healthcare provided toprisoners was likely to be substandard. The reports noted, however, that prisonerswere able to pay for food to be brought in. Further, AL had his own legalrepresentation throughout. He had an extended family in Thailand, and access tosufficient funds which the court would be unable to seize. There was evidence toothat emergency treatment was available and provided to prisoners at the local hospital.[28] I accept this evidence does not conclusively prove that AL will be able toaccess heart medication from inside prison. However, it also does not provide thebasis for the claim that there is a real chance AL would be prohibited from accessinghis medication if it was provided privately via his family. The evidence clearlysupports the inferences reached by the Tribunal that AL would be in a position to affordmedication from outside prison and his lawyer and family members in Thailand wouldbe able to advocate for access to his medication in prison.[29] I accept Ms Griffin's submission that it was for AL to provide evidence tosupport his claim that he would be unable to access his medication in a Thai prison.In my view, however, AL has failed to provide evidence to confirm he would be barredfrom procuring his own heart medication for his use in prison. Also before theTribunal there was evidence that the prison system in Thailand is relatively permissivein what may be allowed into the prison in that, for example, prisoners were able toorder food from outside the prison provided they could pay for it.[30] In my view, the conclusions reached by the Tribunal were available to it. ALhas not established a seriously arguable case that the Tribunal's factual findings werewrong.The application of Jiao[31] Nor am I of the view that the decision in Jiao tips the balance in favour of ALon either of these points. Jiao is concerned with specific difficulties faced by refugee20 An International Federation for Human rights report Behind the Walls - A look at conditions inThailand's prisons after the coup (February 2017) and D Simcharoen "Life behind bars: Ex-prisoners describe a typical day in Thai prison" (4 May 2017).claimants who may be unable to source some information or find conclusive evidenceto prove their claims. Jiao held21to insist on [proof that it was impossible for the applicant to provide]mightproperly be seen as requiring action by them which would not fall within their'responsibility' under the Act nor, in the circumstances, within the basicgenerally accepted principle that claimants must prove the facts they assert.[32] Jiao cites the Handbook on Procedures and Criteria for determining RefugeeStatus. This states that the benefit of the doubt principle is relevant:22when all available evidence has been obtained and checked and when theexaminer is satisfied as to the applicant's general credibility. The applicant'sstatements must be coherent and plausible and must not run counter togenerally known facts.[33] The Court of Appeal in Jiao acknowledged that:23the phrase [benefit of the doubt] should not get in the way of the properconsideration of the evidence bearing on disputed facts, including a weighingof the possible availability of other evidence supporting or questioning thatgiven by the claimant.[34] I accept Ms Griffin's submission here that, whether AL would be deniedmedication while imprisoned was a question capable of a degree of independentverification. It was within AL's capability to provide evidence to support hiscontentions relating to this. As it stands, AL provided no evidence that Thai prisonswould prevent access to medication where that medication was required and fundedby AL. In these circumstances the "benefit of the doubt" principle, as I see it, will notstep in to fix the deficiencies in AL's supporting evidence.[35] I accept, as the Tribunal did, that if there was a real risk AL would be deprivedof his essential medication while imprisoned, he would be afforded protected personstatus. However, I cannot, on the evidence, conclude there is a seriously arguable casethat the Tribunal's factual findings were incorrect such that an error of law in theapplication of s 131 has occurred here.21 Jaio, above n 12, at [32].22 At [28].23 At [30].Conclusion[36] The Tribunal was entitled to conclude that AL's imprisonment in Thailand wasspeculative and, further, that in any event, there was not a real risk here AL would bedeprived of his essential heart medication if he was imprisoned.[37] AL's application for leave to appeal is based on his contention that theseconclusions reached by the Tribunal were wrong and unsupportable. I disagree. Iconsider they were permissible on the evidence before the Tribunal. In my view noerror of law has occurred here, and no matters of general or public importance supportgranting leave to appeal.[38] The application for leave to appeal is dismissed. Leave to appeal is declined....................................................Gendall JSolicitors:Young Hunter, ChristchurchCrown Law Office, WellingtonCharlotte Griffin, Barrister, Wellington