BC (PHILIPPINES) v REFUGEE AND PROTECTION OFFICER [2019] NZCA 180

BC (PHILIPPINES) v REFUGEE AND PROTECTION OFFICER [2019] NZCA 180 [24 May 2019]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 AOTEAROACA694/2018[2019] NZCA 180BETWEEN BC (PHILIPPINES)ApplicantAND REFUGEE AND PROTECTION OFFICERRespondentCourt: Miller and Clifford JJCounsel: J C Harder for ApplicantS P Connolly and M G A Madden for RespondentJudgment:(On the papers)24 May 2019 at 3 pmJUDGMENT OF THE COURTA The application to amend the application for leave is granted.B The application for leave to appeal to the High Court is declined.C There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The applicant, BC, arrived in New Zealand in 2007 on a visitor visa. In 2008,he obtained a work visa, and in 2010 he applied for New Zealand residence.Immigration New Zealand subsequently determined BC had filed false documents tosupport the residence application, which BC then withdrew. An application for afurther work visa was declined.[2] In late 2011 BC was issued with a deportation liability notice. BC was notlocated until 2017, when he was issued with a deportation order. In March 2017 BCclaimed refugee and protected person status. A Refugee and Protection Officerdeclined that application in October 2017.[3] BC appealed to the Immigration and Protection Tribunal. The Tribunaldismissed that applicant in January 2018.1[4] BC then sought leave to appeal the Tribunal's decision to the High Court.2The formulated question for which leave was sought was "Did the Tribunal err in lawby not articulating what analytical path (or approach) it adopted when it madecredibility findings against BC?".[5] Wylie J declined leave to appeal to the High Court on 19 October 2018.3The Judge considered the law is clear: the duty to give reasons does not includethe requirement for such an explanation. In any event, it was clear that the Tribunalhad justified its credibility findings in the case of BC. Finally, those findings wereonly relevant to BC and were not of general or public importance.[6] BC initially sought leave to appeal to this Court against Wylie J's decision.That is not possible. Rather, BC's next step should have been to apply to this Courtfor leave to appeal to the High Court. BC now does that.4[7] In doing so, BC "abandons" the ground of appeal advanced before Wylie J, oralternatively seeks leave to do. He now seeks to argue in the High Court thatthe Tribunal's decision was "based on a failure to consider directly relevant countryinformation which, in the circumstances, amounted to an error of principle".1 BC (Philippines) [2018] NZIPT 801243.2 Immigration Act 2009, s 245(1).3 BC (Philippines) v Immigration and Protection Tribunal [2018] NZHC 2722.4 Immigration Act 2009, s 245(1).The Refugee and Protection Officer does not oppose leave being given to BC to amendthe ground on which he seeks to challenge the Tribunal's decision in the High Court.We grant leave accordingly. The Refugee and Protection Officer continues to opposeBC's application for leave to appeal on the merits.Legal context[8] Section 245(3) of the Immigration Act 2009 directs this Court, whenconsidering whether or not to grant leave for an appeal to the High Court, to haveregard to whether the question of law involved in the proposed appeal is one that byreason of its general or public importance, or for any other reason, ought to besubmitted to the High Court for its decision.[9] In Wu v Minister of Immigration, this Court held that the "general or publicimportance" test requires "a question capable of bona fide and serious argumentinvolving an interest of sufficient importance to outweigh costs and delay".5The High Court has held that an issue is of sufficient importance to justify the furtherpursuit of litigation only if it "go[es] beyond the particular circumstances ofthe applicant" or "suggests the existing law should be revisited by the Court".6[10] The application of the "any other reason" limb of the leave to appeal test issettled. The limb will only be engaged in "exceptional circumstances, involvingindividual injustice to such an extent that the Court simply could not countenancethe first instance decision standing".7[11] BC founds his claim for recognition as a refugee or a protected person on thebasis he has a well-founded fear of being persecuted, or otherwise being subject toqualifying harm, because of his refusal to join the Communist Party of the Philippines5 Wu v Minister of Immigration [2016] NZCA 511, [2016] NZAR 1667 at [12].6 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [32]. See also TRR v Refugeeand Protection Officer [2016] NZHC 233 at [13], where the High Court held "plainly thelegislation emphasises finality, and seeks to reserve High Court consideration to issues that are ofwider import, rather than just being a second evaluation".7 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19]. The application of this thresholdto applications for leave to appeal has been affirmed by this Court in Machida v Chief Executiveof Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].(CPP) and to provide ongoing financial support to its armed wing, the New People'sArmy (NPA).[12] The issue for the Tribunal on appeal from the Refugee and Protection Officerwas whether BC had given a credible account supporting that claim of a well-foundedfear.The Tribunal's decision[13] The Tribunal was satisfied that before his arrival in New Zealand in late 2007:(a) BC had in 2005 been told by a maternal cousin, AA — a member ofthe NPA — that he was required to pay a revolutionary tax to the NPAbecause his business operated in areas controlled by that group.(b) BC had tried to extricate himself from that situation, closing downthe affected offices by mid-2007 and then advising the NPA that hewould not pay further tax accordingly. BC had met with the NPA/CPPwith his friend and commercial legal adviser (BB) shortly thereafter.The representatives of the NPA/CPP did not accept BC's explanation.(c) Sometime later BC received a telephone call from AA, informing himthat he and BB were going to be tried for treason by a NPA court inabsentia. AA urged BC to leave the Philippines, for his own safety.(d) Subsequently both BC and BB received death threats via mail and textmessages. Towards the end of August 2007, BB was in fact murdered.[14] At the time of BB's murder BC and his wife were planning a trip to Australiaand New Zealand. They had begun the visa application process. When visas wereissued sometime later BC and his family travelled to Australia, where they stayed formore than two months. They arrived in New Zealand in December 2007.[15] After BC was arrested in March 2017, his wife instructed a lawyer to make anapplication for him to be issued with a visa to enable him to then make an applicationfor residence on the basis of his marriage. A letter filed in support of that applicationreferred to the "extreme hardship" BC would be put to if required to leaveNew Zealand. No mention was made of any difficulties with the NPA or the CPP thatmight arise were he to return to the Philippines. Nor had BC himself made anymention of that possibility when interviewed on the day following his arrest.[16] Before the Tribunal, and for the first time, BC advanced a narrative of eventssubsequent to his departure from the Philippines which, he said, were central to hisfear of what would happen at the hands of the NPA/CPP if he returned. He said that:(a) In April 2012 he had been told by his sister in law that two men hadgone to the family home inquiring as to his whereabouts. Althoughdressed as police officers, when asked for identification the two mencould not produce any and had left.(b) In September 2016 he had received a Facebook message from one ofhis distant relatives, telling him that a second cousin had been shot andkilled by unknown hitmen. That "distant relative" had spoken to AA'smother, who had received this information from, apparently, AA.(c) He was subsequently told in December 2016, by one of his sisters, thathad been a case of mistaken identity: the second cousin had beenmistaken for him.[17] The Tribunal did not accept those aspects of BC's evidence. It noted that thesematters had only been raised, for the first time, before the Tribunal.8 It explained whyit had serious doubts as to the evidence provided by BC's aunt (AA's mother) andBC's sister.9 It noted inconsistencies between BC's assertion as to what his sister hadtold him, and her evidence to the Tribunal. Nor did it accept BC's explanation as towhy he had not raised these matters earlier, particularly when he was opposing hisdeportation in March 2017.108 BC (Philippines), above n 1, at [41]–[42].9 At [43]–[46].10 At [47]–[49].[18] The Tribunal then considered, on the basis of that part of BC's narrative whichit accepted, his claim to a well-founded fear of persecution were he to return now tothe Philippines. Noting that the standard by which such a claim was to be assessedwas an objective one, in doing so the Tribunal turned its attention to external evidencerelating to the communist insurgency in the Philippines. BC now says the Tribunalerred in law in the way that it assessed that external evidence.Analysis[19] The Tribunal had before it several external sources of information:11(a) A document entitled The Communist Insurgency in the Philippines:Tactics and Talks (14 February 2011) written by the International CrisisGroup;12(b) An article entitled The War is Over by one Alex De Jong;13 and(c) Several other documents from the internet, including from othernews organisations and non-governmental organisations.14[20] Having considered all those materials, the Tribunal concluded:[68] Given the breakdown in talks and the history of the insurgency, it isto be expected that there will be some pushback from the NPA/CPP. This isaccepted. However, what is missing is any country information establishingthat persons who have, in the past, fallen foul of the CPP/NPA throughnon-payment of revolutionary taxes and being "tried" are being tracked downand executed. It must be recalled that the appellant's last involvement withthe NPA was over a decade ago. There is no credible evidence of any ongoinginterest in him since then. The risk to him now of suffering serious harm ofany kind [at] the hand of the NPA is remote and speculative and falls belowthe real chance threshold.[21] In this application, BC says that although the Tribunal acknowledged the recentcountry information put before it, there was no evidence to suggest that it had11 At [58]–[67].12 International Crisis Group The Communist Insurgency in the Philippines: Tactics and Talks(Asia Report No 202, 14 February 2011).13 Alex de Jong "The War Is Over" (2015) Jacobin <www.jacobinmag.com>.14 At [29]–[30] and [66]–[67].considered the following excerpt found in the International Crisis Group's 2011 report:"The CPP/NPA also summarily executes 'enemies of the people', who they say werecondemned by 'people's courts'." In highlighting the importance of that excerpt, BCemphasises the reference there to "people's courts" and BC's narrative as to the bodywhich he had been told would try him in absentia for withdrawing financial supportfrom the NPA.[22] BC further says that if that passage had been considered and accepted, it couldnot be concluded that the Tribunal would have come to the decision it did.The Tribunal's approach, BC asserted, involved the Tribunal was reasoningbackwards — that is, rejecting independent evidence because of its consistency withrejected testimonial evidence.[23] We are satisfied that the matter BC now seeks to raise is not one which wouldjustify a grant of leave.[24] First, we are satisfied that the Tribunal did not overlook or mischaracterisethe material to be found in the International Crisis Group's report:(a) First, it did refer to the actions of the NPA as including extra-judicialkillings of "enemies of the people".15 That would appear to be areference to a passage of the report's executive summary which isbroadly equivalent to the comment BC says the Tribunal overlooked.(b) That comment is, itself, a summary of a more extensive discussion inthat report of insurgent activities throughout the Philippines. Thatdiscussion does not provide evidence of the type of long-term pursuitby the CPP/NPA that BC asserts he would face if he returned tothe Philippines.(c) The overall flavour of that report was of a failing insurgency.(d) That was also the overall conclusion of the "War is Over" 2015 report.15 At [60].[25] On that basis, we do not think it is seriously arguable that the Tribunal failedto consider relevant information. In our view its decision shows that it carefullyconsidered the information before it and made findings of fact available to it onthe information before it.[26] Nor, in those circumstances, can it be argued that the circumstances BC pointsto are exceptional so as to engage the "any other reason" ground on which leave maybe granted.[27] BC's application for leave to appeal to the High Court is, accordingly,declined.[28] There is no order as to costs.Solicitors:Crown Law Office, Wellington for Respondent