CO v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 442

CO v CHIEF EXECUTIVE, MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC442 [14 March 2018]NOTE: 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.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2017-404-001121[2018] NZHC 442BETWEEN COApplicantAND CHIEF EXECUTIVE, MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTRespondentCIV-2017-404-001122BETWEEN COApplicantAND IMMIGRATION AND PROTECTIONTRIBUNALFirst RespondentCHIEF EXECUTIVE, MINISTRY OFBUSINESS, INNOVATION ANDEMPLOYMENTSecond RespondentHearing: 15 February 2018Counsel: Applicant in person, B Johnson as McKenzie friendN Copeland for RespondentsJudgment: 14 March 2018[REDACTED] JUDGMENT OF WHATA JThis judgment was delivered by me on 14 March 2018 at 4.30 pm.,,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] CO seeks leave to judicially review and/or appeal the decision of theImmigration Protection Tribunal (the IPT) dated 22 May 2017.1[2] In written submissions, CO raised the following question:How much evidence does a fleeing and frightened person have to present tothe RSB or the IPT before the convention test of a well founded fear is passed?[3] And:If after considering all the life-threatening events he has suffered, and theevidence and facts he presented to the RSB and IPT, he is not found to be arefugee with the convention definition then surely no one can pass that hurdle?[4] Building on this starting point, Mr Johnson appearing as a McKenzie friend,identified the key grounds of appeal as follows:(a) The IPT made numerous errors of fact, particularly about the likelyimpact of religious, cultural, social and political conditions in Pakistanon CO;(b) The IPT placed undue reliance on the IPT's assessment in the earlierrefugee decision of the risk of danger to CO;(c) The IPT failed to consider relevant country information;(d) The IPT did not have specific regard to relevant international humanrights conventions; and(e) The IPT failed to record the international human rights conventions towhich it had specific regard.[5] The jurisdiction to grant leave to appeal and/or review a decision of the IPT inthis context is limited. There must be an appeal or judicial review on important pointsof law only. For reasons that I will explain, the grounds of CO's appeal do not meetthis threshold test. Leave to appeal is declined.1 CO (Pakistan) [2017] NZIPT 502918. ("IPT Appeal")Procedural issue[6] At the commencement of the hearing Mr Johnson sought to produce evidenceof CO's counsel's notes from the hearing before the IPT. He wanted to show thatcertain information was handed up to the Judge but not then considered by him. I didnot allow them in. They were not produced by way of affidavit. They were handed uptoo late. The underlying point lacks merit.Background[7] The following findings of fact were made in CO's refugee and protection statusdecision and repeated in the decision now under appeal. While CO does not agreewith this account in all respects, it provides sufficient context for present purposes:2[6] The appellant was born in 1985 in Z district, Pakistan. He is ofPunjabi ethnicity. His family home is in Y village, in the Z district. He wasthe fifth child born to his father (a farmer) and his mother. His father and hismarried brother still live in the family village, and his three married sisterslive elsewhere in Z district.[7] The appellant was born and raised in the Islamic faith, and has alwayspractised this faith. He continues to attend services at the mosque.[8] In 2004, the appellant completed his schooling in X village, a villagein the vicinity of Z district. He then continued to live at home, and wassupported by his parents during times of unemployment.[9] In 2008, the appellant married his wife, who had lived with her familyin X village. After the marriage, the wife moved to live with the appellant andhis parents in Y village. The following year their first son was born.[10] In 2009, the appellant began working as an assistant purchase officerfor a company in Lahore, Pakistan. In 2010 his second son was born, and thefollowing year his third son was born.[11] In November 2011, the appellant commenced a course in English as aSecond Language (ESOL) in Manchester, England. He completed the courseand then commenced a business administration course.[12] In May 2014, the appellant returned to Pakistan (without completinghis business administration course) as his mother's health had deteriorated.The following month he commenced working as a purchase manager for acompany in Lahore. He rented an apartment in Lahore, while his wife andchildren remained with his parents in Y village. He travelled to see his familyonce a week or fortnight.2 CO (Pakistan) [2017] NZIPT 801075 at [6] – [12], [23], [26].[][23] In February 2016, the appellant's employer said that he had to travelto New Zealand and asked the appellant to accompany him. Between16 February 2016 and 16 March 2016, the appellant was in Dubai waiting forhis visa to New Zealand to be approved.[][26] The appellant arrived in New Zealand on 18 March 2016, and on 27April 2016 he lodged a claim to refugee and protected person status. He hassuffered depression while waiting for his claim to be processed, but has beenworking for the last three months.[8] The grounds upon which CO based his humanitarian appeal againstdeportation are also recorded by the IPT. They were summarised as follows:3(a) The appellant is the sole provider for his immediate family, his wifeis unable to earn a living outside the home, and he has three youngchildren. He would struggle to settle in Lahore without any familysupport, he has no references or contacts to assist with findingemployment, a sparse employment history, and few financialresources. His problems are made more difficult by the fact that inPakistan, unemployment rates are poor and security issues areproblematic.(b) The appellant remains fearful about returning to Pakistan because ofthe threats previously made against him.(c) The appellant's exceptional humanitarian circumstances will causehim and his family emotional and financial hardship.(d) The appellant has been law abiding since his arrival in New Zealand,he is committed to settling and working in New Zealand, he has agood level of English and has previously obtained employment inNew Zealand.[9] The essential issue for the Tribunal in determining whether to make afavourable decision to CO was whether there are exceptional circumstances of ahumanitarian nature. The Tribunal was dismissive of the appellant's concerns aboutemployment. The Tribunal noted:[26] The reality is that the appellant has, in recent years, been able to findemployment and provide for his wife and children, without her having to workas well. For two years (2009-2011), he worked for a company in Lahore.Three years ago, he resumed work for a company in Lahore, and remained inthis position for 20 months before he chose to leave. During the latter time,he rented an apartment in Lahore, while his wife and children remained with3 IPT Appeal, above n 1, at [19].his parents in the family home. The appellant has completed a course inEnglish as a Second Language (ESOL), and has a good level of English. This,and his past work experience, should assist him to regain work in Pakistan.There is also no evidence that his cousin is demanding immediate repaymentof the loan which was made to him, at least before he has re-establishedhimself in Pakistan.[10] The Tribunal also refers to the appellant's supportive brother and family andconcludes there is no evidence that the support of his family would not continue. It isnoted that the appellant has only been in New Zealand for the past 14 months and was,for a short period, in employment here.[11] The Tribunal acknowledged CO remains fearful about returning to Pakistanbecause of threats previously made against him by a member of the Taliban. It alsoacknowledged that the Tribunal in its decision dealing with refugee status accepted bya narrow margin that the incidents which affected the appellant and his family, and theongoing threats by the member of the Taliban against him in his home village, giverise to a real chance of the appellant being persecuted in his own village should hereside there.[12] However, the Tribunal concluded that CO's past residence and employment inLahore was without any threats to his safety. The Tribunal concluded it was no morethan speculative that he would be located by his opponent in Lahore, in a city of overten million people, and no more than speculative that even if he was located, he wouldbe harmed. The Tribunal found that there was no credible evidence that an individualwith the appellant's characteristics (including being a member of the Sunni Muslimfaith, which is a religious majority in Pakistan) was at risk of serious harm in Lahoreand the Tribunal was satisfied that the real chance of persecution for a Conventionreason was eliminated in Lahore.[13] The Tribunal concludes:[33] Looked at cumulatively, the appellant's circumstances are such thatdeportation could cause him disappointment, distress and emotional upset.However, the High Court has held that the stringent statutory test of"exceptional circumstances of a humanitarian nature" cannot be equated with"compassionate factors", circumstances that are more than simply "routine",or "genuinely concerning circumstances". The High Court has noted "the highthreshold for a finding of exceptional circumstances of a humanitarian nature"– see Minister of Immigration v Jooste [2014] NZHC 2882 at [45].[34] Assessing the circumstances of the appellant, the Tribunal is notsatisfied that he has met the high threshold required for exceptionalcircumstances of a humanitarian nature.Summary of CO's arguments[14] In written submissions, CO submits the decision of Judge Spiller was plainlywrong on the facts:(a) The facts were that CO provided a safe-haven for Mr B that stopped MrM of the Islamic terrorist organisation JeM that is part of the Taliban inPakistan to carry out an apostate execution of Mr B for his conversionfrom Islam to the Christian faith.(b) Since this incident, CO has not been able to live peaceably in his villageand has become a fugitive.(c) Consequently, the applicant fled to New Zealand and has left his wife,three sons and mother in Pakistan, who are fully reliant on him.(d) CO has no friends or family in Pakistan to support or house them.[15] CO then sets out what he believes to be errors of fact in the Tribunal's decision,particularly relating to the conditions CO will face if he is returned to Pakistan. COalso submits that on the evidence provided to the Tribunal, no reasonable membercould have seriously proposed that CO would be able to secure himself and his familyby moving to Lahore, due to security and economic concerns. It is further submittedthat the decision is unjust and unduly harsh and that the denial of family rights couldgive rise to undue hardship.4[16] The following grounds for invalidity are then also promoted:(a) The decision was made on an incorrect assessment of security affordedto a victim of Taliban interest in Pakistan.4 Citing a judgment of Durie J in Leiataua v Minister of Immigration HC Wellington CIV-2003-485-742, 26 November 2003 at [18].(b) The decision was made on an incorrect assessment of economicconditions in Pakistan.(c) The decision violates CO's human rights enshrined in the InternationalBill of Rights and the ICESCR, to which New Zealand is a signatory.Submissions of the McKenzie Friend[17] Mr Johnson, McKenzie Friend, reframed the grounds of appeal, emphasisingthe following key points:(a) Key findings were plainly wrong, for example:[31] The appellant as a Sunni Muslim and as a member of thereligious majority in Pakistan, will not be at any greater risk of beingpersecuted in Lahore than any other Pakistani citizen;(b) Findings of this kind reveal the Judge did not consider the informationsupplied to him by CO and instead simply adopted findings from therefugee appeal decision;(c) In so doing, the Tribunal cut itself off from the proper assessment of thehumanitarian grounds, the most relevant information and the applicableconventions, including the ICCPR5 and the ICESCR.6(d) The Tribunal decision lacks transparency – there being no reference toany of the relevant international conventions – making it very difficultto appeal.[18] Mr Johnson emphasised that CO's case is exceptional. It is the first occasionhe has experienced of a Sunni Muslim in Pakistan protecting an apostate. He says therisk to CO is real, and the Judge failed to take this key fact into account. While Mr5 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16December 1966, entered into force 23 March 1976).6 International Covenant on Economic Social and Cultural Rights 993 UNTS 3 (opened forsignature 16 December 1966, entered into force 3 January 1976).Johnson did not specify questions to be considered on appeal, I understand from hissubmissions that leave is sought to pursue the grounds stated at [4] above.Threshold for appeal[19] The application for leave is made under ss 245 and 249 of the Immigration Act2009. Section 245 relevantly states:245 Appeal to High Court on point of law by leave(1) Where any party to an appeal to, or matter before, the Tribunal (beingeither the person who appealed or applied to the Tribunal, an affected person,or the Minister, chief executive, or other person) is dissatisfied with anydetermination of the Tribunal in the proceedings as being erroneous in pointof law, that party may, with the leave of the High Court (or, if the High Courtrefuses leave, with the leave of the Court of Appeal), appeal to the High Courton that question of law.(1A) A decision by the Court of Appeal to refuse leave to appeal to the HighCourt is final.(2) An application to the High Court under this section for leave to appealmust be made—(a) not later than 28 days after the date on which the decision of theTribunal to which the appeal relates was notified to the partyappealing; or(b) within such further time as the High Court may allow onapplication made before the expiry of that 28-day period.(3) In determining whether to grant leave to appeal under this section, the courtto which the application for leave is made must have regard to whether thequestion of law involved in the appeal is one that by reason of its general orpublic importance or for any other reason ought to be submitted to the HighCourt for its decision.[][20] Section 249 provides: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 of theappeal.(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.(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.[21] The evident policy of this part of the Act is that it will not usually be sufficientto identify a case-specific error of law (or fact). The reference at s 245(3) and 249(6)(b)to "any other reason" is not an open gateway. The preponderance of authoritiessuggest that this limb is engaged only in "exceptional circumstances, involvingindividual injustice to such an extent that the Court simply could not countenance thefirst instance decision standing".7 There is contrary authority.8 For my part, both linesof authority support the basic proposition that case-specific errors of law will not beamenable for leave except in clear cases of substantive unfairness. The assessment offairness will however consider New Zealand's commitment to international humanrights norms.9[22] It is also necessary to observe, as Koś J noted in Taafi v Minister ofImmigration,10 that on questions directed to the factual findings of the Tribunal (ashere), a triple-hurdle is faced by the applicants, namely:(a) The applicant will need to show a seriously arguable case that thefactual findings of the Tribunal are actually incorrect;7 Taffi v Minister of Immigration [2013] NZAR 1037 at [19]. See also Machida v Chief Executiveof Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].8 R M v Immigration and Protection Tribunal [2016] NZHC 735 at [34]-[37].9 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104, at [24].10 Taafi v Minister of Immigration, above n 7, at [19].(b) The applicant will need to show that the factual areas are in,combination and in the context of the whole decision, so grave as toconstitute an error of law; and(c) The applicant must show that the question of law is one of general orpublic importance or, for some other reason, ought to be considered onappeal.[23] I also adopt the observation made by Katz J in Nabou v Minister ofImmigration:11Findings of fact themselves cannot be impugned unless the factual errors wereof such significance, extent and nature that they would render the decisionlegally flawed. Value judgments made by the Tribunal in balancing andweighing the competing factors arising in any given case will seldom amountto an error of law.Assessment[24] I will address each of the key grounds of appeal raised by Mr Johnson. Thefirst two can be dealt with together.The IPT made numerous errors of fact, particularly about the likely impact ofreligious, cultural, social and political conditions in Pakistan on COThe IPT placed undue reliance on the IPT's assessment in the refugee decision of therisk of danger to CO[25] Central to CO's appeal are alleged errors of fact, not law, particularly relatingto the cultural, social and political conditions in Pakistan. They fall at the triple hurdle.There was an ample basis for Judge Spiller to form a robust conclusion about thoseconditions. He referred to relevant country information to support his position. Hisconclusions were logically available to him based on that information and it is notseriously arguable for the purpose of an appeal on a point of law, or in judicial reviewproceedings, that Judge Spiller made a material error of fact.11 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [9].[26] I accept heavy reliance is placed on the Tribunal's decision on the refugeestatus appeal. But that can hardly be a reason for challenge in this Court. First, thatdecision provides a comprehensive review of the risk to CO of returning to Pakistan,based on relevant information, including by reference to international conventions.Second, that decision is now beyond challenge. Third, the refugee status appealassessment of risk was directly relevant to CO's claim as part of the humanitarianappeal that he remained in danger. Fourth, CO was afforded the opportunity to anddid table fresh information relating to risk. It is speculative to suggest it was notconsidered by Judge Spiller.The IPT failed to consider relevant country information[27] CO's related complaint is that the Judge did not properly turn his mind to thehumanitarian grounds of appeal in light of the best available information. Mr Johnsonidentifies a Country Report on Human Rights Practices for 2016 that is not referred toin the decision. However, what is clear, is that the Judge turned his mind to each of thematters counsel for CO raised as part of the humanitarian appeal in the memorandumof Counsel and cited the country information also referred to in that memorandum.12It is more than counsel of perfection to suggest the Tribunal erred by expresslyreferring only to these reports. It is plainly not a ground of appeal on a question of lawof general or public importance.The IPT did not have specific regard to relevant international human rightsconventions.The IPT failed to record the international human rights conventions to which it hadspecific regard.[28] The final two grounds can also be considered together, that is, the apparentfailure by the Judge to consider or expressly refer to relevant conventions on humanrights. But as Ms Copeland noted, unlike other parts of the Act, there is no statutoryrequirement to refer to relevant conventions in a Tribunal decision on an appeal onhumanitarian grounds. Furthermore, the engagement of those conventions, where12 Memorandum of Counsel dated 8 May 2017. See also [20], [24] and [25] of the IPT Appeal.relevant, would have been obvious to the Judge who was specifically tasked toundertake an assessment of humanitarian grounds based on arguments and informationthat presupposed the existence of these conventions. Judge Spiller's decision on therefugee appeal considered a number of the relevant conventions.13 It is also notable inthis case that Counsel at the hearing did not in fact refer to any particular conventionsin her memorandum filed with the Tribunal and reproduced in this Court. This doesnot mean that there will not be occasions where those conventions should be recordedas having been considered, but this is not a case where consideration of that issue iswarranted.[29] Finally, even if, for arguments sake, there is some merit to the criticisms ofJudge Spiller's decision, I am not satisfied there should be a further opportunity to beheard. First, the primary issues raised by the proposed appeal are largely case specific.Second, CO has had two appellate opportunities to make a case against deportationessentially on the same grounds (though I accept different considerations apply on ahumanitarian appeal). Third, the decision on refugee status (which is beyondchallenge)14 provides a compelling basis for concluding that the risk to CO of returningto Pakistan is small. While as Mr Johnson eloquently noted, the impact on CO ofrefoulement should not be dealt with by way of glib generalisations, the weight ofmaterial before this Court strongly suggests that the risk to CO does not triggerhumanitarian grounds for intervention. Third, CO's genuine concerns about providingfor his family are valid matters to consider. But, in a context where he has shown thewherewithal to obtain employment in a variety of situations, including in Pakistan,these concerns similarly do not obviously trigger humanitarian grounds forintervention.[30] Overall, CO's primary questions, recorded at [2]-[3], best illustrate the trueobject of the appeal. He cannot understand and wants to test the merits of JudgeSpiller's decision. His concerns about the risk he faces, as the Tribunal noted in therefugee appeal decision, are not meritless. But that is not a sufficient basis for appealon a question of law or judicial review. Leave to appeal is therefore declined.13 CO (Pakistan) [2017] NZIPT 801075 at [82].14 It appeared that Counsel advised CO to wait for the decision on the appeal on humanitariangrounds.