BY (CHINA) V REFUGEE AND PROTECTION OFFICER [2017] NZCA 127

BY (CHINA) V REFUGEE AND PROTECTION OFFICER [2017] NZCA 127 [13 April 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA594/2016[2017] NZCA 127BETWEEN BY (CHINA)ApplicantsAND REFUGEE AND PROTECTIONOFFICERRespondentHearing: 10 April 2017Court: Harrison, French and Brown JJCounsel: N R Woods and K A Partington for ApplicantsO M Klaassen for RespondentJudgment: 13 April 2017 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicants are ordered to pay the respondent's costs on a standardapplication for leave to appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] BY are Chinese nationals whose claims to refugee status in New Zealand were dismissed by the Immigration and Protection Tribunal.1 The High Court refused leave to appeal.2 BY now apply to this Court for leave to appeal.Background[2] Each of BY had spent some time in New Zealand from 2003 on visitor and student visas.3 In May 2011 they settled together in New Zealand and purchased a house. They also applied for further visas allowing them to remain here. After leaving and returning over the ensuing years, and the birth of three children, the family arrived in New Zealand in April 2014. Within 10 days they lodged claims for refugee status. In September 2014 a Refugee and Protection Officer (RPO) declined that application. They then appealed to the Tribunal both against that decision and against liability for deportation. Both appeals were dismissed.[3] BY's claims to refugee status were based on allegations of forcedsterilisations and abortions in China pursuant to that country's one-child policy. Because they had two more children, BY claimed they would be likely to subject to forced sterilisations if ordered to return to China. In dismissing BY's claim for refugee status, the Tribunal accepted that forced sterilisations and abortions occur sporadically in Fujian province, where BY resided before coming to New Zealand, but concluded that they had no well-founded fear of being forced to undergo either procedure.[4] In dismissing BY's application for leave to appeal, Muir J found that, first,the Tribunal's decision was not erroneous in point of law within the terms of s 245(1) of the Immigration Act 2009 and, second, even if the Tribunal had erred on a question of law the issue is not of such general or public importance as to merit a right of further appeal.41 BY (China) [2016] NZIPT 800770-773.2 BY (China) v Immigration and Protection Tribunal [2016] NZHC 2244, [2016] NZAR 1595.3 See [3]–[7].4 At [81]–[84].[5] BY has now formulated two questions of law said to arise from the Tribunal'sdecision. One is whether the Tribunal took into account all relevant considerations when determining that the applicants did not have a well-founded fear of persecution; the other is whether the Tribunal took into account irrelevant considerations in determining that issue. In argument before us Mr Woods focused primarily on the first question. The RPO opposes the application for leave pointing out, among other things, that these questions were not raised in the application to the High Court.Decision[6] The essence of Mr Woods' argument is that the Tribunal failed to take into account authoritative evidence of the commonality of the practices of enforced sterilisations and abortions in Fujian province and the degree to which they were sanctioned by the Chinese authorities.[7] Mr Woods refers to what he says is the extent and significance of the coercive regulatory measures adopted by the provincial congress for Fujian to implement and enforce the People's Republic of China's Population and Family Planning Law2001.5 He submits that no reasonable decision-maker could conclude, as did the Tribunal, that the prospect of what BY says are draconian measures being exercised against them was entirely speculative. He says the Tribunal failed to consider properly or at all evidence that in cities residents rarely violate family planning policies because of economic and social pressures and because they cannot easily avoid the scrutiny of public officials. His proposition is that if the Tribunal had considered the evidence referred to in three decisions of the United States Federal Courts of Appeals,6 as well as BY's evidence, it could not reasonably have come to the conclusion that "the evidence does not establish that either the husband or the wife is at risk of having such measures applied to them at the real chance level".7[8] We do not accept this submission. It is essentially a factual issue advanced under the guise of a question of law. Mr Woods is saying that the Tribunal should5 See BY (China), above n 1, at [59]–[69].6 At [85].7 Ni v Holder 715 F 3d 620 (7th Cir 2013); Chen v Holder 715 F 3d 207 (7th Cir 2013); andChen v Holder 742 F 3d 171 (4th Cir 2014).have placed more weight on the American jurisprudence. While they are of course entitled to respect, those decisions themselves do not carry any particular weight. Those authorities were before the Tribunal. As Muir J noted, there are conflicting determinations in the United States as to whether appellants succeed in establishing a well-founded fear of future persecution in the form of sterilisation in China.8Moreover, as Ms Klaassen points out, the Tribunal had before it and considered the same but updated country information that was before the American Courts.9 And the Tribunal took into account but was not persuaded by BY's evidence that "thecouple were occasionally contacted by the family planning authorities in the [Fujian] area regarding their undertaking medical procedures to prevent furtherpregnancies".10[9] We are satisfied that the Tribunal took into account all relevant country information in determining what was ultimately a factual question — that BY did not have a well-founded fear of persecution in China. We agree with Ms Klaassen that it is not part of our jurisdiction to re-evaluate that same information on appeal for the purpose of reaching a different conclusion to the Tribunal. The application does not raise an arguable question of law.Result[10] The application for leave to appeal is declined.[11] BY is ordered to pay the RPO's costs on a standard application for leave to appeal on a band A basis together with usual disbursements.Solicitors:Rowland Woods Legal Ltd, Wellington for AppellantMeredith Connell, Auckland for Respondent8 BY (China) v Immigration and Protection Tribunal, above n 2, at n 65 citing Huang v US Attorney General 346 F Appx 463 (11th Cir 2009). In that case, the appellant failed to establish a well-founded fear of persecution on return to Fujian province; the Court quoted a 2004 UnitedStates Department of State Country Conditions Report in terms: "US diplomats in China are not aware of any cases where returnees from the United States were forced to undergo sterilization procedures on their return".9 See BY (China), above n 1, at [68], [70]–[73] and [78]–[79].10 At [46].