BD (India) v LEGAL AID TRIBUNAL [2018] NZHC 2542

BD (India) v LEGAL AID TRIBUNAL [2018] NZHC 2542NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT2009. SEEHTTP://WWW.LEGISLATION.GOVT.NZ/ACT/PUBLIC/2009/0051/LATEST/DLM1440836.HTMLIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-002561[2018] NZHC 2542BETWEEN BD (India)AppellantAND LEGAL AID TRIBUNALRespondentHearing: 10 April 2018Counsel: R S Pidgeon for the AppellantL M Hansen for the RespondentJudgment: 28 September 2018JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 28 September 2018 at 3.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: R S Pidgeon, AucklandSolicitor: L M Hansen, Wellington[1] BD appeals from a decision of the Legal Aid Tribunal (Tribunal) refusing togrant him legal aid to pursue his third application for refugee or protected personstatus.[2] The Tribunal upheld the Legal Service Commissioner's decision to decline BDlegal aid for his third claim on the grounds that the prospects of success are so slimthat aid should not be granted. The issue on appeal is whether the Tribunal erred inlaw in making that assessment.BD's prior claims for refugee or protected person status[3] BD is an Indian national from the Andhra Pradesh province who arrived inNew Zealand in July 2002 and was issued with various work visas permitting him tostudy and work in New Zealand.1 He obtained a Ministries Development Certificatein 2006 and has practised as a minister of religion in the Christian faith.[4] By June 2012, BD was in New Zealand unlawfully, and was consequentlyserved with a deportation order. He appealed to the Immigration and ProtectionTribunal (IPT) on humanitarian grounds, claiming that, as a result of extortions he hadexperienced during his time in New Zealand, he would return to India with nothingand would effectively have to start his life again. No mention was made at that stageof any risk of harm in the event of deportation. The IPT dismissed the appeal.2First claim[5] BD lodged his first claim for refugee or protected person status on29 November 2013. He claimed he did not wish to return to India because he fearedhe would face harm because of his Christian faith and missionary work.[6] BD's claim relied on assertions that he had been attacked several times in Indiafor practising as an evangelist before moving to New Zealand. His assertions includedthat the attacks were carried out by members of various Hindu nationalist groups; he1 BD had previously been in New Zealand from October 2000 to October 2001, and subsequentlyreturned to study at a bible college.2 AK (India) [2013] NZIPT 501002.was being followed by police officers; church pastors had begun to receive telephonecalls threatening to kill BD, and those threats eventually made their way to BD'spersonal phone; and his brother had received phone calls from the nationalist groupsthreatening to kill BD because of his involvement with the church and his work inseeking converts.[7] In determining BD's claim, the IPT referred to country information on the riskof harm BD would face as a Christian evangelist in India. This information includedthe 2013 United States Department of State Human Rights Report for India, whichnoted that violence between religious groups and organised communal attacks againstreligious minorities were occurring at that time. It also noted that the country'sdemocratic system, independent legal institutions, vibrant civil society and free pressprovided mechanisms that helped to address violations of religious freedom when theyoccurred.[8] The refugee and protection officer (RPO) considering BD's claim accepted thatBD was a Christian evangelist, but otherwise rejected his claims of threatening andattacking behaviour by the various Hindu nationalist groups.[9] As to the country information, the RPO accepted that many of the documentedattacks had been against pastors for forcible conversions and/or had occurred duringchurch services. Similarly, reference was made to several reports of state authoritiesarresting Christian missionaries accused of proselytising. There were also instancesof communal attacks on religious minorities coupled with allegations that policeprotected the attackers and not the victims.[10] The country information recorded that BD's home region of Andhra Pradeshhad a population at the time of which 1.55 per cent were Christian.3 Christian sourcesthere documented alleged threats and attacks in recent years. The district reportedlyhad the fourth-highest rate of attacks against Christians in India, with 42 documentedattacks between May and November in 2013. Many attacks were against pastorsbecause of their higher profiles.3 The RPO decision erroneously refers to this as 0.15 per cent.[11] Despite that country information, the RPO did not accept that BD had a well-founded fear of persecution, the RPO said:In the case of [BD], it is accepted that he is an ardent practitioner of theChristian faith and he has been involved in missionary work. Countryresearch shows that India generally allows missionaries to carry out theiractivities and although there have been some lapses, generally there issufficient state protection to deal with violations of religious freedom whenthey occur, thereby demonstrating the state's willingness to protect the rightto religious freedom. Andhra Pradesh does not have anti-conversion laws. Ithas, however, identified Hindu religious sites as areas where other religiousfaiths may not be propagated. Based on [BD's] testimony, it does not appearthat he carried out missionary activities on Hindu religious sites.In respect of determining the infliction of serious harm, it is acknowledgedthat country research shows there have been incidents of Christians beingattacked in Andhra Pradesh. However, it is not considered that this risk wouldamount to there being a real chance of serious harm. To illustrate, the 42documented attacks between May to November 2013 against Christians inAndhra Pradesh should be viewed against the district's Christian populationof 1,181,917. Further, limited information could be found which specificallyidentified "missionaries" as targets, whereas more attacks were reportedagainst "pastors". Taking into account all of [BD's] characteristics it isconsidered there is not a real chance of harm experiencing serious harm [sic]if he were to return to India now and resume missionary work. For the reasonsset out above, it is considered that there is not a real chance of [BD] beingpersecuted if he returns to India now. His fear of being persecuted is nottherefore considered to be well-founded.[12] For the same reasons, the RPO did not accept that there were substantialgrounds for believing BD would be at risk of torture if deported from New Zealand,nor that BD was a protected person.[13] BD appealed to the IPT against the RPO's decision. The IPT reached the samecredibility findings as the RPO and reached the same conclusions regarding thecountry information, stating:4[58] Even recognising these concerns about the harassment of someChristians and the lack-lustre police response, the evidence does not disclosethat the appellant is at any risk of serious harm if he returns there. He simplydoes not, on the evidence, have any adverse profile or such characteristics thathe will be at risk of serious harm in India at the level of a real chance. He canreturn to India and continue to live, worship and evangelise as a Christian ashe has previously. Any risk of serious harm to him is no more thanspeculative. The appellant does not have a well-founded fear of beingpersecuted in India.4 BD (India) [2015] NZIPT 800692.[59] For the reasons given above, the Tribunal finds that there is not,objectively, a real chance of the appellant suffering serious harm if he nowreturns to India. He does not have a well-founded fear of being persecuted inIndia. It follows that the question of a Convention reason does not arise.[14] The IPT dismissed the appeal on 5 March 2015. In October 2015, BD wasarrested and detained for deportation.Second claim[15] BD lodged a second claim for refugee or protected person status on4 November 2015. BD submitted that his second claim was distinct from his firstclaim in the following respects:(a) BD's brother had received numerous phone calls threatening BD's life.(b) BD's faith had intensified while detained, and if deported he would beactive in his proselytising evangelism in India.(c) New country information showed that extremism had intensified sincethe IPT's first decision. That information suggested that sinceMay 2014 religious minority communities had been subject toderogatory comments by politicians linked to the rulingBharatiya Janata Party (BJP), and numerous violent attacks and forcedconversions by Hindu nationalist groups had occurred.(d) There was a new government in power which was said to be anti-Christian and this further heightened the risk of persecution for BD.(e) The Supreme Court of India had released a judgment finding that aDalit who had converted to Christianity and then reconverted toHinduism would be eligible for "reservation benefits" for scheduledcastes. BD submitted that this provided a boost to the Ghar Wapsimovement which aimed to reconvert Hindus who had converted toChristianity and Islam, and it demonstrated an official endorsement ofthe radicalisation of Hindu nationalist action in confronting Christianmissionary work.[16] The RPO dismissed the first two alleged changes as repetitions of BD's earlierclaim. The RPO accepted that the situation for Christians in India had worsenedfollowing the coming-to-power of the new government. However, the RPO observedthat the elections that brought the BJP to power predated the IPT's decision by almosta year. Although there had been reports of violence, vandalism and harassment aimedat Christian minorities since the IPT's decision, it was not accepted that the situationwas significantly different from the situation that existed prior to that date. Theactivities of the Hindu nationalist groups were also not considered new. Further, theIndian Supreme Court decision had been released prior to the IPT's decision on BD'sfirst claim.[17] In short, the RPO concluded that the reality had not changed since thedetermination of BD's claim, and the incidents relied upon by BD were "simply furtherevents within an ongoing situation of intermittent unrest". The RPO accordinglyrefused to consider BD's second claim for refugee or protection status on the groundsthat it was manifestly unfounded and a repetition of a previous claim under s 140(3)of the Immigration Act 2009 (Act).[18] BD sought judicial review of the RPO's decision. He claimed the decision wasinfluenced by an error made by the RPO in construing s 140 of the Act and that becauseof that error the decision was both unreasonable and substantively unfair. He furtherclaimed the decision was made in breach of natural justice and contrary to theprovisions of the New Zealand Bill of Rights Act 1990 and various internationalinstruments to which New Zealand is a signatory.[19] BD's judicial review claim failed. Peters J considered the RPO correctlyapplied s 140 of the Act, and found there to be no suggestion that the RPO hadoverlooked relevant information, reached a conclusion not open to him, or made adecision that was unreasonable.5 An appeal to the Court of Appeal was filed but wasultimately abandoned. Mr Pidgeon, who acted for BD at this time, said that this was5 BD (India) v Refugee and Protection Officer [2016] NZHC 1762 at [38].because he had intended to introduce new points on appeal and new evidence, whichmight not have been accepted by the Court of Appeal. It was for this reason, incombination with apparent changes to the situation "on the ground" in India, that atactical decision was made to abandon the appeal and file a subsequent claim.Third claim[20] BD made his third claim on 18 April 2017. To support his claim, BD relied onSkype interviews with his brothers, an intensification of his own Christian beliefs andevangelical practices, and a change in the country information. It is his applicationfor legal aid to pursue this third claim that is the subject of this appeal.BD's claim for legal aid[21] BD applied for legal aid on 28 April 2017. Under s 10(4)(d)(i) of theLegal Services Act 2011, the Commissioner may refuse to grant legal aid to anapplicant where "the applicant's prospects of success are not sufficient to justify thegrant of legal aid".[22] The phrase "prospects of success" was considered by the Court of Appeal inJMM v Legal Services Agency.6 The Court considered the decision of Timmins vLegal Aid Review Panel in which Wild J observed that assessment of the prospects ofsuccess involves weighing the likely benefits against the likely costs, and can beassisted by considering what, if any, legal action a reasonable applicant would take inthe circumstances if paying their own legal costs.7 The decision of Legal ServicesAgency v Hosseini,8 a case involving an application for legal aid to pursue judicialreview of a decision of an RPO, was also considered. The Court of Appeal said:[51] We consider that the words "prospects of success" should speak forthemselves. As we will discuss later, various considerations may be relevantto the evaluation of the phrase in a particular case. The reasonable privatelitigant approach may assist in this evaluative exercise but it is really part ofthe policy rationale and not a test. It is certainly not a test to be applied in arigid manner.6 JMM v Legal Services Agency [2012] NZCA 573, [2013] 1 NZLR 517.7 At [50]; citing Timmins v Legal Aid Review Panel [2004] 1 NZLR 708 (HC) at [33]–[35].8 Legal Services Agency v Hosseini (2006) 17 PRNZ 932 (HC).[52] We do not consider that Priestley J in Legal Services Agency vHosseini was purporting to lay down a different test. Rather, Hosseini is anexample of a case where the consequences to the individual (including thepossibility of persecution should the applicants be returned to Iran) were soserious that even a slim chance of success was deemed to be sufficient tojustify the continuation of legal aid.[23] The Court of Appeal held that there was a range of relevant considerations tobe considered when assessing the sufficiency of the prospects of success (such as themerits of the claim, and a comparison of the cost of bringing the claim with thepotential benefits (both monetary and non-monetary)), but that each case turned on itsown facts.9[24] Both parties to the appeal accepted that given the risk to life or liberty inherentin BD's claim, all he needed to show was a "slim chance" of success in order to meetthe "prospects of success" threshold in this case.[25] BD's application for legal aid was declined by the Commissioner on 10 May2017 because the prospects of success were considered insufficient to justify a grant.In a letter advising BD of the decision the Commissioner stated:We are not satisfied by what is put forward that there is any realistic basis thatthe applicant's third refugee/protection claim will succeed. We do not acceptthat there is a viable prospect that the RSB would find a significant change ofcircumstances in India relevant to the applicant's claim. The material beforeus does not show a significant greater risk to Christians since the previousclaim.Even if there was jurisdiction under s 140 to consider a subsequent claim, wesee no realistic prospect that it would succeed. The IPT has found that thereis no real risk of serious harm to the applicant if he returns to India. There isnothing to suggest that the outcome on this latest claim would be any different.[26] BD sought a reconsideration of this decision. However, on 21 July 2017, theCommissioner confirmed it, stating:The application for aid is for a third claim for refugee status founded on newmaterial (primarily updated country material and Skype evidence from theapplicant's brothers). For his claim to succeed the applicant needs to establisha real (as opposed to perceived) chance of persecution occurring in India.9 At [63]–[66].The Skype interviews fail to cogently establish threatening phone calls weremade. Even if the phone calls as described by the brothers were in fact madethey do not establish a risk of persecution to the requisite level. Having viewed the Skype material it is not seen as adding materially to theapplicant's claim currently before the RSB. It lacks cogency and does notreach the threshold of reliable corroborative evidence that there is a real threatof persecution to the applicant.As for the affidavit material this is seen as not being materially different fromcountry evidence founding the Applicant's previous claims for refugee status.Recent violent attacks against Christians in India were presented to the RSBin a previous claim but which failed to establish there would be a real threatto the applicant if he returned. This presents as a very difficult jurisdictionalproblem for the applicant given the scope and purpose of s 140(3) of theImmigration Act 2009.Similarly, the issue of intensification of religion for the applicant is notconsidered to found a different claim. The IPT has previously accepted theapplicant was he was a Christian evangelist [sic] and did not grant himrefugee status. So, any intensification of religion is not a new factor.Weighed against the importance of aid to the applicant is the relative futilityof his claim and the cost of proceeding further. The applicant's prospects ofsuccess are considered so slim that aid should not be granted (s10(4)(d)(i)).[27] BD appealed the Commissioner's decision to the Tribunal. The Tribunal onlyhas jurisdiction to reconsider a decision where the decision is manifestly unreasonableor wrong in law.10 In a decision dated 29 September 2017, the Tribunal dismissed theappeal, stating:11[43] The applicant's third claim has the same basis as both his earlier failedclaims, being that he is a Christian evangelist who will seek to convert othersto Christianity if he returns. He advances country information and Skypeinterviews of his brothers in support of this claim. He contends the countryinformation shows him to be at risk of persecution in India and that there havebeen threats against those associated with him. It is the same unsuccessfulclaim he has made before.[44] This evidence supporting the third claim was all considered in athorough and well reasoned decision of the Commissioner on 21 July. TheHigh Court authorities and precedent decisions of the IPT relied on by theapplicant were reviewed by the Commissioner. In assessing the merits of thisthird claim, it is relevant to have regard to the history of the various versions10 Legal Services Act 2011, s 52(1).11 Re QP (Refugee and Immigration) [2017] NZLAT 25.of what is essentially one refugee claim. It has twice been rejected. Achallenge in the High Court was dismissed.Approach to appeal[28] The appeal is brought under s 59 of the Legal Services Act 2011 whichprovides:59 Appeal on question of lawIf the Commissioner or an applicant considers that the Tribunal'sdetermination is wrong in law, the Commissioner or the applicant (asthe 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.[29] BD submits that the Tribunal erred in its interpretation and application of s 140of the Immigration Act in assessing the prospects of success of his third claim. Thatsection governs second and subsequent claims for refugee or protected person status.Whether the Tribunal did err in its interpretation and application of s 140 is considerednext.Did the Tribunal err in applying s 140 of the Immigration Act?The scope of s 140[30] The Immigration Act permits the bringing of subsequent claims for recognitionas a refugee or protected person. However, to "prevent abuse of the system",12 thisregime has been carefully constrained by s 140 of the Act. That section provides:140 Limitation on subsequent claims(1) A refugee and protection officer must not consider a subsequent claimfor recognition as a refugee or a protected person unless the officer issatisfied—(a) that there has been a significant change in circumstancesmaterial to the claim since the previous claim was determined;and(b) the change in 1 or more of the circumstances was not broughtabout by the claimant—(i) acting otherwise than in good faith; and12 WK v Refugee and Protection Officer [2018] NZCA 258, [2018] NZAR 1146 at [44].(ii) for a purpose of creating grounds for recognitionunder any of sections 129 to 131.(2) For the purposes of determining the matter in subsection (1), therefugee and protection officer must not treat the actions of any otherperson in relation to the claim or the claimant as a mitigating factor.(3) A refugee and protection officer may refuse to consider a subsequentclaim for recognition as a refugee or a protected person if the officeris satisfied that the claim—(a) is manifestly unfounded or clearly abusive; or(b) repeats any claim previously made (including a subsequentclaim).[31] The effect of s 140(1) is that an RPO has no jurisdiction to consider asubsequent claim unless there has been a significant change in circumstances materialto the claim since the previous claim was determined. Section 140(3) is a standalonesubsection. It provides the RPO with a discretion to refuse to consider a subsequentclaim if satisfied that it is manifestly unfounded or clearly abusive, or that it repeats aprevious claim. An applicant has a right of appeal in respect of a decision made undersubs (1), but not in respect of a decision made under subs (3). Relief from a decisionunder subs (3) is by way of judicial review.[32] The scope and effect of s 140 was recently considered by the Court of Appealin WK v Refugee and Protection Officer (a judgment released after the hearing of thepresent appeal).13 That case involved successive claims made by a Turkish nationalwho had converted to Christianity before arriving in New Zealand. His applicationsfor refugee or protected person status were made on the basis that he feared he wouldbe killed or seriously harmed by Muslim relatives and ultra-nationalists if he wasreturned to Turkey. WK's fourth claim was rejected by the RPO under s 140(3), andhis application for judicial review of that decision was rejected by the High Court.[33] The Court of Appeal agreed with the High Court that the function of s 140 isto give effect to New Zealand's obligation to permit claims based on circumstances orevents that have occurred after the claimant has left their country of origin (sur placeclaims). That gives effect to New Zealand's obligations under the Refugee Convention13 WK v Refugee and Protection Officer [2018] NZCA 258, [2018] NZAR 1146.and the obligation of non-refoulement.14 The Court of Appeal summarised the overalleffect of s 140 as follows:[43] Inherent in the application of s 140 to a subsequent claim is theassessment 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. Aswas submitted by Ms Jerebine on behalf of the RPO, s 140(1) allows sur placeclaims to be considered (subject to a good faith test), while s 140(3) preventsan ongoing cycle of repeated, groundless claims. There is no statutory limiton the number of claims a person can make, nor any time limitation on whena claim can be made.[34] In considering the various limbs of s 140(3), the Court of Appeal held that:(a) "Manifestly unfounded" in s 140(3)(a) denotes a high standard,something which is self-evident from the particulars on which the claimrelies, and is unfounded or untenable.15(b) The discretion in s 140(3)(b) to refuse to consider a subsequent claimthat "repeats any claim previously made" requires a comparison to bebetween the first claim and the subsequent claim to see whether it is"essentially the same claim".16[35] The Court also had regard to Woodhouse J's reasoning in the High Court that"clearly abusive" is to be assessed by taking into account all relevant factors. A clearlyabusive claim could include one that is lodged to prolong the appeal or deportationprocess, but the circumstances in which an abusive claim may arise are notexhaustive.17 Although counsel on appeal had suggested an alternative approach, theCourt did not need to resolve which was appropriate, as the RPO's finding was opento him under either.14 At [42].15 At [56]; citing AO (Afghanistan) [2015] NZIPT 800797 at [31].16 At [46]; approving the approach adopted in AR v Refugee and Protection Officer [2016] NZHC2916 at [50].17 At [58].[36] The scope of s 140(3) was also at issue in E v Chief Executive, Ministry ofBusiness Innovation and Employment.18 In that case, Gilbert J considered thatalthough the power under subs (3) can be exercised without having to address whetherthe prohibition in subs (1) applies, the subsections must be read together to understandthe intended scope of subs (3). That is because the power under subs (3) must extendto claims that have passed, or are at least capable of passing, through the subs (1) filter.In the context of subs (1), the Judge considered that "circumstances material to theclaim" is a reference to the "facts on the ground supporting the claim, not to theevidence establishing those facts".19 And so in the context of subs (3), the Judgeconsidered that a subsequent claim will repeat a previous claim if the same ground isrelied on and there is no material change in circumstances, only additional evidenceof the unchanged circumstances.[37] On the facts of that case, the Judge accepted the RPO would not have beenpermitted to consider the claim due to s 140(1) and that the RPO was correct toconclude that s 140(3) was engaged. There had been no suggestion in that case thatthe circumstances relied on in support of E's claim had changed in any materialrespect.20 Rather, E had attempted to use new evidence to relitigate an argument thatwas available (and had been run) on a previous claim.Did the Tribunal apply the correct approach to s 140?[38] The Tribunal's reasoning on the application of s 140 was brief. I repeat it herefor ease of reference:21[43] The applicant's third claim has the same basis as both his earlier failedclaims, being that he is a Christian evangelist who will seek to convert othersto Christianity if he returns. He advances country information and Skypeinterviews of his brothers in support of this claim. He contends the countryinformation shows him to be at risk of persecution in India and that there havebeen threats against those associated with him. It is the same unsuccessfulclaim he has made before.[44] This evidence supporting the third claim was all considered in athorough and well reasoned decision of the Commissioner on 21 July. TheHigh Court authorities and precedent decisions of the IPT relied on by the18 E v Chief Executive, Ministry of Business Innovation and Employment [2017] NZHC 3175.19 At [55].20 At [61].21 Re QP (Refugee and Immigration) [2017] NZLAT 25.applicant were reviewed by the Commissioner. In assessing the merits of thisthird claim, it is relevant to have regard to the history of the various versionsof what is essentially one refugee claim. It has twice been rejected. Achallenge in the High Court was dismissed.[39] Although the Tribunal's reasoning could be interpreted in a number of differentways, on its face these passages suggest that the Tribunal considered BD's third claimto be the same as his previous claims because the grounds – that he is a Christianevangelist who is at risk of persecution in India if he is returned there – are the same.[40] But just because the grounds for the claim are the same, does not necessarilymean the claim is essentially the same. As the decisions in WK and E make clear, ifthere has been a change in circumstances, such as an intensification of risk or wherethe applicant's own conduct has heightened the risk of persecution, then that may meetthe significant change in circumstances threshold even if the broad grounds remain thesame.[41] Although BD's second claim was based on an alleged heightened risk, his thirdclaim is premised on information which shows that this risk has intensified evenfurther since his first and second claims were determined. That is, although thegrounds and the material in support of the claim are of the same ilk, the actualinformation put forward is different to that put forward in the other claims and suggeststhere has been an intensification of the risk to proselytising Christians in India.[42] The Tribunal's decision must be understood in light of the Commissioner'sinitial decision and reconsideration of the application for legal aid which was thesubject of appeal. The Commissioner found that the updated country information wasnot materially different from the evidence founding the previous claims for refugeeor protected person status. It was noted that recent violent attacks against Christiansin India had already been presented in a previous claim but had failed to establish thatthere would be a real threat to BD if he was returned to India. The Commissionerfound that this presented a "very difficult jurisdictional problem for the applicationgiven the scope and purpose of s 140(3) of the Immigration Act". In addition, theCommissioner considered that BD's intensification of religion did not found adifferent claim, because the IPT had previously accepted that he was a Christianevangelist and did not grant him refugee status, so that intensification of religion wasnot a new factor.[43] Whilst the Commissioner's reasons suggest that a comparison between thefactual basis for the previous claims and that put forward in support of the third claimwas undertaken, there is no direct engagement with the actual difference in the writtenreasons. As explained further below, the country information put forward by BD insupport of his third claim does ostensibly show an intensification of violence againstChristians in India since the second claim was determined.[44] The fact that the type of evidence put forward by BD in support of his claim(i.e. country information, and intensification of religious beliefs and practices) is thesame, does not necessarily mean that the claim is the same. What was required was acomparison of the circumstances as set out in the previous claim with thecircumstances forming the basis of the new claim to see whether the claims wereessentially the same for the purposes of s 140(3), and whether there had been asignificant change of circumstances for the purposes of s 140(1).[45] Overall, I consider the Tribunal's decision, considered in light of theCommissioner's determinations, suggest that there was a focus on the similarity in thegrounds and type of evidence put forward in support of the subsequent claim, ratherthan engaging with whether that new information indicated a material change in the"facts on the ground". The Tribunal's conclusions suggest that it erred in applyings 140 in assessing the prospects of success of BD's claim, but the failure to fullyengage with the substance of the third claim is an error of law in any respect.Accordingly, I am satisfied that there was an error of law in the Tribunal's decision.[46] Whether that error of law was material to the Tribunal's assessment of theprospects of success can only be determined by considering those prospects afresh.Embarking on an assessment of those prospects is consistent with r 20.19(1)(a) of theHigh Court Rules 2016, which empowers this Court to make any decision it thinksshould have been made after hearing an appeal. The assessment of the prospects ofsuccess of BD's claim depends on whether there is a slim chance that jurisdiction willbe assumed under s 140 and, if so, whether there is a slim chance that the applicationfor refugee or protected person status will be granted. Those questions are considerednext.Is there a slim chance jurisdiction will be assumed under s 140?[47] To get through the jurisdictional barrier in s 140, BD must show that there hasbeen a change in circumstances since his previous claim was determined. Toovercome the bar in s 140(3), that change must be sufficient to show that his claim isnot a repetition of previous claims, and that it is not manifestly unfounded or an abuseof process. Furthermore, it must be a "significant" change material to the claim suchthat the RPO will accept jurisdiction under s 140(1).[48] Although BD relied on the Skype interviews with his brothers to support histhird claim, the focus at the hearing was on the country information. BD says that thisupdated country information shows an intensification of the risk of persecution sincehis prior claims were determined. I address that information first.[49] The updated country information is not presented in a way that makes acomparison to that relied upon in the previous claims particularly easy. Nor is it clearthat all the information post-dates the prior claims. Whether there has been a change,and if so the extent of such change, since BD's previous claim was determined isaccordingly difficult to assess.[50] Nevertheless, the reports and articles from 2016 and 2017 produced by BD dosuggest that there has been an intensification of the risk of persecution for Christianevangelists since the second claim was determined. For example, several of the reportsrelied on by BD record the persecution level for Christian evangelists as being "veryhigh". The Open Doors World Watch List, which ranks the top 50 countries whereChristians face the most severe persecution for their faith, has observed India climbfrom number 31 to number 15 over the last four years. One 2017 article, referring tothe same list, observed that India had risen "over the past year up to a league tableof countries where the practice of the faith is a high-risk activity". Another reportrecords the district of Andhra Pradesh, BD's home province, as being one of the areaswhich has the greatest number of religiously motivated attacks. Other reports alsomake comment about lax enforcement, a shortage of trained police officers, and anoverburdened and under-resourced court system contributing to the overall risk.[51] For the purposes of this appeal, I accept that the information does tend to showthat there has been an intensification of the risk of persecution since December 2015when the last claim was determined. Whether such a change is "significant" for thepurposes of s 140(1), or enough to differentiate BD's previous claim under s 140(3),is an evaluation which the RPO is best placed to assess. I note, however, that thelength of time between BD's first and second claims was less than a year, and bothclaims were not long after the coming-into-power of the BJP. The revised countryinformation relied on by BD suggests there is now more targeted violence againstChristians, and a steady escalation in the trend of violence against Christianevangelists.[52] Overall, I consider there is a slim chance that the RPO will find that the revisedcountry information is sufficient to differentiate the third claim from the previous two,and to meet the "significant change" threshold in s 140(1). That finding makes itunnecessary for me to consider the Skype evidence put forward in support of BD'sthird claim.Is there a slim chance that BD will succeed in his substantive claim?[53] Assuming BD's claim is accepted by the RPO, the second question is whetherthere is a slim chance that BD will succeed in his application. That depends onwhether it is accepted that BD has a well-founded fear of being persecuted which, inturn, depends on whether there is a real chance of BD being persecuted if returned toIndia.[54] BD's first claim failed because the RPO and the IPT did not accept that BDhad an adverse profile, nor that threats had been made against him and his brothers.BD is prohibited from challenging those adverse credibility findings in his subsequentclaim by s 141 of the Immigration Act. Furthermore, the RPO considered that despitesome information regarding attacks against Christians and a lacklustre policeresponse, there was no evidence that BD was at risk of serious harm in India, andaccordingly he did not have a well-founded fear of being persecuted in India.[55] Accordingly, the question is whether the risk of persecution is now such thatthere is, objectively, a "real chance" of BD suffering from serious harm if he returnsto India, such that his fear of persecution is well-founded.[56] Some recent cases from the IPT suggest that BD faces a significant hurdle inestablishing a real chance based on a generalised risk arising out of countryinformation alone. A generalised risk of persecution was held not to be sufficient inCY (India)22 and CJ (India)23 despite the Tribunal accepting that country informationrevealed a risk of persecution for Christian communities in India.[57] Nevertheless, the Tribunal has already accepted that BD is an evangelicalChristian, and his claim that his faith had intensified was also accepted by the RPO inhis second claim. The country information appears to suggest that there is a greaterrisk of persecution for those who proselytise rather than those who have simplyconverted to the Christian faith as the applicants had in both CY (India) and CJ (India).Furthermore, the country information produced by BD suggests that the province towhich BD would be returned, Andhra Pradesh, is one of the areas which has a highnumber of religiously motivated attacks. In both CY (India) and CJ (India) the IPTconcluded that there was no evidence that the districts to which those respectiveapplicants would be returned were locations where Christians were particular targets.[58] I do not regard BD's prospects of success on his third claim as being very highat all. Even if the RPO accepts jurisdiction, there is a reasonable probability that theRPO will simply conclude that there is insufficient evidence of a "real chance" thatBD would suffer from serious harm if returned to India, and that accordingly his fearis not well-founded. However, given the intensification of the risk of persecution inIndia, BD's particular profile as a Christian evangelist, and the increased risk ofviolence in his home district, I cannot discount the possibility that the RPO wouldaccept the claim. In other words, I consider there is a slim chance (but no more thanthat) that the RPO would accept BD's claim for refugee status.22 CY (India) [2017] NZIPT 800912.23 CJ (India) [2016] NZIPT 800846.[59] It follows that I consider the Tribunal's error did have a material effect on itsassessment of the prospects of BD's third claim. The appeal should be allowed andthe application for legal aid for BD's third claim should be granted.Result[60] The appeal is allowed, and the application for legal aid is granted.[61] BD is entitled to an award of costs. If the quantum cannot be agreed, BD mayfile a short memorandum in support of costs within 15 working days, with amemorandum in response 10 works days thereafter. Costs shall be determined on thepapers.___________________Edwards J