AS (SOMALIA) v REFUGEE AND PROTECTION OFFICER [2020] NZCA 585

AS (SOMALIA) v REFUGEE AND PROTECTION OFFICER [2020] NZCA 585 [24 November 2020]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THEIMMIGRATION ACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA274/2020[2020] NZCA 585BETWEEN AS (SOMALIA)ApplicantAND REFUGEE AND PROTECTION OFFICERFirst RespondentAND THE IMMIGRATION AND PROTECTIONTRIBUNALSecond RespondentCourt: Gilbert and Courtney JJCounsel: R S Pidgeon and L I E Tothill for ApplicantH T N Fong and E J Cameron for First RespondentD J Perkins and J B Watson for Second RespondentJudgment:(On the papers)24 November 2020 at 9.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The application for leave to appeal is declined.C The application for leave to bring judicial review proceedings is declined.D The interlocutory application dated 31 July 2020 seeking declaratory andother orders is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] For the last six years, the applicant has been endeavouring to obtain recognitionas a refugee and protected person. He now applies to this Court for leave to appeal tothe High Court on a question of law pursuant to s 245 of the Immigration Act 2009(the Act), the High Court having declined to grant leave. He also applies for leave tobring judicial review proceedings pursuant to s 249 of the Act. There are twoassociated interlocutory applications, one to adduce further evidence and the otherdescribed as a "novel" application seeking declaratory orders and various directions.Brown J directed that these applications be determined together on the papers by twoJudges.Background[2] The applicant, AS, is a 32-year-old man who was born in Somalia. He travelledto New Zealand from Malaysia using a false passport, arriving here on 13 December2014. AS lodged a claim for refugee or protected person status on 24 December 2014(the first claim). In support of this claim, he advanced a narrative which heconsistently adhered to in four separate hearings spanning a period of nearly threeyears. However, in November 2017, some three weeks after receiving the fourthdetermination relating to his claim, AS acknowledged that the narrative he hadadvanced in support of his first claim was in many respects false. It is not necessaryto detail the first claim. It will suffice to note that AS claimed to have a well-foundedfear of being persecuted by al-Shabaab (a militant group in Somalia associated withAl-Qaeda) because of his community-based activities in Somalia. AS claimed he waskidnapped and tortured by al-Shabaab in Somalia in September 2014. He said he wastold that his life would be spared if he agreed to work for al-Shabaab. Under duress,he reluctantly agreed he would do so. However, some weeks after failing to report fortraining as required, AS said he returned to his family home in Mogadishu to find thedead bodies of his father, stepbrother and a friend, who had all been murdered.AS said he fled Somalia a short time later fearing a similar fate if he remained.[3] The first claim was rejected as not credible by a refugee and protection officerin April 2015. AS's appeal to the Immigration and Protection Tribunal (the Tribunal)was dismissed in March 2016.1 However, AS's application for leave to appeal and tobring judicial review proceedings against the Tribunal's decision was granted byPalmer J in September 2016.2 In February 2017, the parties consented to the matterbeing remitted to the Tribunal for a fresh hearing. Following a four-day hearing inAugust 2017, the appeal was again dismissed by a differently constituted Tribunal forreasons set out in a comprehensive decision delivered on 31 October 2017.3The Tribunal (correctly) found that AS's account was not true. After assessing countryinformation, the Tribunal concluded that the "risk of [AS] being targeted as a moderateMuslim or for acting in accordance with such beliefs [was] below the real chancethreshold".4 The Tribunal found that AS was not a refugee or a protected person.5[4] Approximately three weeks after this second Tribunal decision was released,AS lodged a second claim based on an entirely different narrative (the second claim).At that stage, AS acknowledged that his first claim was untrue. AS's second claimwas that he fled Somalia with his family in 1991, when he was aged three, during theexodus which followed the overthrow of Siad Barre. AS now says, contrary to his firstclaim, that he has not lived in Somalia at any time since 1991. He says the familylived in a refugee camp in Kenya. His mother sought asylum and was subsequentlyrecognised as a refugee on a prima facie basis by the United NationsHigh Commissioner for Refugees (UNHCR) in Kenya. In October 2008, AS's motherand her adult dependents, including AS, were recognised as mandate refugees withinthe meaning of the Convention Relating to the Status of Refugees 1951 and its 1967Protocol (the Refugee Convention) and in need of resettlement to a third country.6[5] Prior to being resettled, AS says he departed Kenya on his own, eventuallyarriving in Malaysia in June 2012 where he sought asylum pending verification of hisrefugee status from UNHCR Kenya. However, approximately one month prior to his1 AI (Somalia) [2016] NZIPT 800857 [First Tribunal decision].2 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471.3 AO (Somalia) [2017] NZIPT 801142 [Second Tribunal decision].4 At [173].5 At [191].6 Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951,entered into force 22 April 1954).scheduled interview in Malaysia set for 21 January 2015, AS obtained a false passportand travelled to New Zealand, arriving on 13 December 2014.[6] The refugee and protection officer to whom AS's second claim was referreddeclined to consider it, finding that AS's decision to withhold his true account duringthe first claim did not constitute a significant change in circumstances material tothe claim since the previous claim was determined. For that reason, the officerconsidered the second claim could not be considered because of the limitation ins 140(1) of the Act:140 Limitation on subsequent claims(1) A refugee and protection officer must not consider a subsequent claim forrecognition as a refugee or a protected person unless the officer issatisfied—(a) that there has been a significant change in circumstances material tothe claim since the previous claim was determined; and(b) the change in 1 or more of the circumstances was not brought aboutby the claimant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognition under any ofsections 129 to 131.[7] AS's appeal to the Tribunal against this decision was dismissed on1 May 2019.7 The Tribunal reached the same conclusion that there had not been anysignificant change in circumstances since the first claim was determined forthe purposes of the companion provision in s 200(1) of the Act which applies toappeals to the Tribunal:8200 Determination of appeal against refusal or declining ofsubsequent claim for recognition as refugee or protected person(1) Where an appeal is brought under section 195(1)(a), the Tribunal mustfirst consider—(a) whether there has been a significant change in circumstancesmaterial to the appellant's claim since the previous claim wasdetermined; and7 AS (Somalia) [2019] NZIPT 801326 [Third Tribunal decision].8 At [90].(b) if so, whether the change in 1 or more of the circumstanceswas brought about by the appellant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognitionunder any of sections 129 to 131.(2) The Tribunal must dismiss the appeal if it determines that—(a) there is no significant change in circumstances; [8] AS then applied to the High Court for leave to appeal on a question of lawunder s 245 of the Act and for leave to bring judicial review proceedings under s 249of the Act in respect of this third Tribunal decision. The leave applications weredeclined by Gault J for reasons set out in his judgment delivered on 29 April 2020.9[9] AS now applies to this Court for leave to appeal to the High Court on a questionof law.10 He also applies to this Court for leave to bring judicial review proceedings.11His primary contention is that the Tribunal applied the temporal condition in s 200 ofthe Act too narrowly and in a way that is inconsistent with New Zealand's internationalobligations under the Refugee Convention. AS contends there will be a miscarriageof justice if he is prevented from advancing his truthful, second claim.[10] AS has filed two interlocutory applications in addition to his substantive leaveapplications. The first (which he describes as a "novel" application) seeks variousdeclarations, including a declaration that AS is a refugee and that it would be contraryto New Zealand's international obligations to refoul him to Somalia. AS seeksdirections for the advancement of "this novel case (and its interrelationship withthe leave applications)". He proposes that judges of the Court of Appeal sit as judgesof the High Court to access that Court's inherent jurisdiction to ensure there is nomiscarriage of justice.[11] AS's second interlocutory application is for leave to adduce further evidence,being:9 AS (Somalia)v Refugee Protection Officer [2020] NZHC 833 [High Court judgment].10 Immigration Act 2009, s 245(1).11 Section 249(3).(a) an affidavit from himself dated 11 September 2020 attaching updatedcountry information relating to Somalia;(b) a further affidavit from himself dated 18 September 2020 attaching aletter of the same date from a senior protection officer employed byUNHCR in Canberra confirming his status as mandate refugee withinthe meaning of the Refugee Convention; and(c) an affidavit of Dr Ian Goodwin, a registered psychiatrist, dated14 September 2020 outlining AS's mental health history.[12] The second respondent abides the decision of the Court on all applications.Application for leave to adduce further evidence[13] While the further evidence is arguably neither fresh nor cogent, the firstrespondent does not oppose AS's application to adduce the further evidence. We areaccordingly prepared to grant the application in the interests of justice so that allpotentially relevant material can be considered in determining the various applicationson their merits.Application for leave to appeal[14] This Court may grant leave to appeal to the High Court under s 245 of the Act.This provision reads (as relevant):245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal isdissatisfied with any determination of the Tribunal in the proceedingsas being erroneous in point of law, that party may, with the leave ofthe High Court (or, if the High Court refuses leave, with the leave ofthe Court of Appeal), appeal to the High Court on that question of law.(3) In determining whether to grant leave to appeal under this section,the court to which the application for leave is made must have regardto whether the question of law involved in the appeal is one that byreason of its general or public importance or for any other reasonought to be submitted to the High Court for its decision.[15] Mr Pidgeon, for AS, submits that the primary issue is whether the temporalrequirement in s 200(1) of the Act "causes" New Zealand to breach its internationalobligations under the Refugee Convention. He says "[t]here are difficulties workingwithin the legislation as it currently stands" and that the "carefully structured Act hasbeen undermined by an amendment which was reactive and perhaps not fullyconsidered". Mr Pidgeon frankly acknowledges that "it is difficult to argue againstthe ruling of [the Tribunal]" as to the operation of s 200(1) in this case and he saysthe "injustice rests with the framework of the legislation". Despite these concessions,Mr Pidgeon nevertheless argues that the Tribunal "failed to recognise the primacy ofthe [Refugee] Convention over s 200 of the Act". He says the "key issue is one oflaw, and it focuses on whether it is proper that the domestic legislation ought to trumpthe Refugee Convention".[16] While statutes should be construed where possible in a manner consistent withNew Zealand's international law obligations, Mr Pidgeon has not been able to suggestan interpretation of s 200(1) that would permit AS's second claim to be considered.He simply says the provision should be given a "munificent interpretation so thatthe Act aligns with the [Refugee] Convention". However, the temporal requirementin ss 140(1) and 200(1) cannot be ignored. If there is an issue with the temporalprovision, that is a matter for Parliament to address, not the courts.[17] The problem for AS is that he is unable to point to any change in circumstancesmaterial to his claim since his first claim was determined. That there was nosignificant change in circumstances is underscored by the fact that little more thanthree weeks had passed from receipt of the final determination of his first claim on31 October 2017 until the date he advanced his second claim. On his own account,the circumstances he now seeks to rely on existed throughout; he simply chose not toadvance them when he made his first claim. Similarly, the evidence as to thosecircumstances was available and could have been obtained and provided duringthe three-year period the first claim was under consideration.[18] In his reply submissions, Mr Pidgeon seeks to overcome this difficulty bysuggesting that the information from UNHCR had to be obtained from Malaysia andKenya and was "made choate as evidence after the determination of the claimbefore [the Tribunal]". He relies on this Court's decision in E (CA746/2017) v ChiefExecutive, Ministry of Business, Innovation and Employment (E v MBIE) which heldthat new evidence that could not reasonably have been obtained earlier could amountto a significant change in circumstances.12 However, that decision is plainlydistinguishable for the reasons given by Gault J.13 This Court did not suggest in E vMBIE that claimants can make a tactical decision to withhold evidence in a first claimand then offer it as "new evidence" if the first claim fails. Such an interpretation wouldcut across the policy underpinning the temporal requirement and require the provisionto be read down to the point of being almost meaningless. Rather, as this Courtemphasised, the "new cogent, credible and material evidence" in E's case was foundto be capable of sustaining a subsequent claim only "because there [was] no suggestionthat, realistically, E could have obtained the evidence now provided by the joint reportany earlier than he did".14 AS is not in this position.[19] Gault J did not rule out the possibility of an exceptional case where cogent andcredible evidence was not provided at the time of the previous claim due to mentalincapacity on the part of the applicant.15 However, the Judge understood thatthe Tribunal had made a factual finding that AS made a deliberate tactical decision notto reveal the information during the currency of the first claim.16 We acceptMr Pidgeon's submission that the Tribunal made no such finding. However, theevidence before the Tribunal did not support a conclusion that the decision was otherthan a deliberate one. Greg Woodcock, an experienced clinical psychologist, provideda report to the Tribunal dated 26 July 2017 in which he opined that AS suffered frompost-traumatic stress disorder (PTSD) occasioned by the trauma he experienced as aresult of the murders of his family members and friend in Mogadishu. But, as ASacknowledged in his second claim, this claimed traumatic experience was a completefabrication.12 E (CA746/2017) v Chief Executive, Ministry of Business, Innovation and Employment [2019]NZCA 658 at [82].13 High Court judgment, above n 9, at [43].14 E (CA746/2017) v Chief Executive, Ministry of Business, Innovation and Employment, above n 12,at [78]–[79].15 High Court judgment, above n 9, at [44].16 At [45].[20] Further, Dr Goodwin's evidence confirms that AS made a deliberate choice toadvance the fabricated and false first claim instead of what he now says is his truthfulsecond claim. For the purposes of the present applications, Dr Goodwin was asked toassess whether AS's mental health could have affected his ability to recall facts, eventsand details. In his report dated 14 September 2020, Dr Goodwin responded that ASrecalls "numerous small events that made his life generally difficult" at the refugeecamps (in Kenya) including "threats of violence". As to the reason for advancingthe fabricated first claim, Dr Goodwin continued:[AS] stated to me that it was impressed upon him that he had to give the storyabout al-Shabaab, to be accepted as a refugee in New Zealand. [AS] stated hehad certainly believed this and considered it to be the appropriate story to givebased upon what he had been directed to do by the Malaysian peoplesmugglers.[21] We conclude that the application for leave to appeal to the High Court ona question of law must be declined. This is because no seriously arguableinterpretation of s 200(1) (or any other question of law) has been identified that mightenable AS to overcome the temporal requirement in the section and permit him toadvance his second claim. In short, it is not seriously arguable that there has been asignificant change in circumstances material to AS's claim since his previous claimwas determined in 2017.Application for leave to commence judicial review proceedings[22] Section 249 of the Act relevantly reads:249 Restriction on judicial review of matters within Tribunal'sjurisdiction(1) No review proceedings may be brought in any court in respect of adecision where the decision (or the effect of the decision) may besubject to an appeal to the Tribunal under this Act unless an appeal ismade and the Tribunal issues final determinations on all aspects ofthe appeal.(2) No review proceedings may be brought in any court in respect of anymatter before the Tribunal unless the Tribunal has issued finaldeterminations in respect of the matter.(3) Review proceedings may then only be brought in respect of a decisionor matter described in subsection (1) or (2) if the High Court hasgranted leave to bring the proceedings or, if the High Court hasrefused to do so, the Court of Appeal has granted leave.(6) In determining whether to grant leave for the purposes of this section,the court to which the application for leave is made must have regardto—(a) whether review proceedings would involve issues that couldnot be adequately dealt with in an appeal against the finaldetermination of the Tribunal; and(b) if paragraph (a) applies, whether those issues are, by reasonof their general or public importance or for any other reason,issues that ought to be submitted to the High Court for review.[23] Mr Pidgeon concedes that the proposed challenge to the Tribunal's decision"primarily fits" within and "is largely better suited to" s 245 — the application forleave to appeal. However, the application for leave to commence judicial reviewproceedings has been added because of the "any other reason" criterion in s 249(6)(b)which could include a miscarriage of justice. Mr Pidgeon says that while the Tribunalapplied s 200 consistently with its literal wording, he repeats his earlier submissionthat the temporal restriction is contrary to the Refugee Convention. This is nota reason to grant an application for leave to commence judicial review proceedings inrespect of the Tribunal's decision. If the Tribunal applied the provision correctly tothe facts, there is no room for an argument that justice has miscarried. We agree withMr Pidgeon that the more appropriate course, had there been a seriously arguableinterpretation of s 200 favourable to AS's circumstances, would have been to grantleave to appeal. The issues AS seeks to raise could be adequately dealt with in anappeal.[24] The application for leave to commence judicial review proceedings addsnothing in the circumstances of this case and must be declined for the same reasonsgiven for declining the application for leave to appeal."Novel" interlocutory application for declaratory relief and other directions[25] AS has filed an interlocutory application, which he appropriately describes as"novel", seeking the following orders:(a) That the Court reopen his application for refugee and protected personstatus to enable him to have his truthful claim considered bythe Refugee Status Unit.(b) Declarations that:(i) he remains an existing refugee;(ii) his refugee status has not expired or terminated;(iii) on the principle of comity, the refugee determination bythe UNHCR in Kenya is operative in New Zealand; and(iv) it would be contrary to New Zealand's international obligationsto refoul him to Somalia.(c) Directions as to the form for advancing this "novel" case (and itsinterrelationship with the leave applications), including, if appropriate,the commencement of a fresh proceeding in this Court.[26] AS proposes that judges of this Court sit as judges of the High Court to accessthe broader inherent jurisdiction available to that Court. The grounds relied on insupport of this application include that AS suffers from PTSD and depression arisingfrom his life as a refugee prior to his arrival in New Zealand and his compelledparticipation in a "fight club" at Mt Eden Corrections facility where he was initiallydetained following his arrival in New Zealand. AS says in his application that"[t]o permit the legal implications to persist would be to breach the state'sinternational obligation of non-refoulement".[27] This Court's jurisdiction to make the requested orders is said to be found inthe Court of Appeal (Civil) Rules 2005, the inherent power of the Court to regulate itsown procedure, ss 3(1) and 3(2)(d) of the Act (purpose provisions), arts 16 and 33 ofthe Refugee Convention (access to courts and non-refoulement of refugees), art 3 ofthe Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment (non-refoulement),17 and the international law principle ofnon-refoulement. AS also relies by way of analogy on the Court's inherent power torecall its decisions in exceptional circumstances in criminal cases when this is requiredin the interests of justice.[28] The "novel" interlocutory application is misconceived and must be declined.First, it seeks final substantive relief, including declarations, which cannot be grantedon an interlocutory application, let alone one filed in the context of a substantiveapplication for leave to appeal to the High Court or to commence judicial reviewproceedings in that Court. Secondly, the orders sought are contradictory — an orderdirecting the Refugee Status Unit to consider AS's second claim for recognition as arefugee and, at the same time, a final declaratory order from this Court that he is arefugee. Thirdly, and most significantly, the interlocutory application is an obviousattempt to sidestep the mandatory statutory provisions allowing for appeals and/orapplications for judicial review in specified circumstances. Mr Pidgeon realisticallyacknowledges this, describing the application as "a mechanism to enable the truenarrative to be presented, to overcome the significant change issue". Neither the Courtof Appeal (Civil) Rules, nor any of the other contended sources of jurisdiction wouldpermit this Court to make such orders, which would circumvent the detailed appealand review procedures set out in the Act. This is not a case where the Court is beingasked to recall one of its own decisions; that jurisdiction is not relevant here.This Court cannot, in the context of the present leave applications, recall the originaldecision of the refugee and protection officer so that the whole process can commenceafresh.[29] In any event, if the substantive leave applications fail, as we have concludedthey must, it necessarily follows that the novel interlocutory application must also fallaway.Result[30] The application to adduce further evidence is granted.17 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987).[31] The application for leave to appeal is declined.[32] The application to bring judicial review proceedings is declined.[33] The interlocutory application dated 31 July 2020 seeking declaratory and otherorders is declined.Solicitors:Crown Law Office, Wellington for Respondents