DA v THE IMMIGRATION AND PROTECTION TRIBUNAL & ANOR [2016] NZHC 1545

DA v THE IMMIGRATION AND PROTECTION TRIBUNAL & ANOR [2016] NZHC 1545 [8 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-003032[2016] NZHC 1545BETWEEN DA (SRI LANKA)ApplicantAND THE IMMIGRATION ANDPROTECTION TRIBUNALFirst RespondentAND THE REFUGEE AND PROTECTIONOFFICERSecond RespondentCIV-2015-404-003033BETWEEN DA (SRI LANKA)ApplicantAND THE IMMIGRATION ANDPROTECTION TRIBUNALFirst RespondentAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESSINNOVATION AND EMPLOYMENTSecond RespondentHearing: 5 May 2016Appearances: Richard Pidgeon for the ApplicantBriar Charmley for the Second RespondentsJudgment: 8 July 2016JUDGMENT OF MOORE JTHIS JUDGMENT WAS RE-CALLED AND RE-ISSUED ON 2 AUGUST 2016 AT 2:30 PMThis judgment was delivered by me on 8 July 2016 at 1:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Contents ParagraphNumberIntroduction .............................................................................................................. [1]Background ............................................................................................................... [5]The IPT's decision .................................................................................................. [23]Applicant's caseGrounds for seeking leave .................................................................................... [38]Applicant's submissions ....................................................................................... [39]Leave principlesLeave to appeal .................................................................................................... [42]Leave to file judicial review proceedings ............................................................ [47]Should leave to appeal be granted? ...................................................................... [49]Was there a breach of natural justice or procedural unfairness? .......................... [50]Applying the first two Taafi criteria ..................................................................... [70]Is there a seriously arguable case that the factual findings by the tribunal are actually incorrect? ................................................................................................ [72]Should leave to judicially review be granted? ..................................................... [90]Result ....................................................................................................................... [94]Costs ........................................................................................................................ [95]Introduction[1] The applicant, DA,1 is a Sri Lankan citizen. He first arrived in New Zealand in early 2012 on a student visa. In December 2015, unable to obtain employment here, he returned to Sri Lanka but just weeks later travelled back to New Zealand. On his return, at the airport, he destroyed his passport and indicated he wished to claim asylum here. The basis of his claim was that following his arrival in Sri Lanka he was detained by the authorities and subjected to human rights abuses. He claimed that if returned to Sri Lanka he would be at risk of further serious harm, if not death, by reason of his oldest brother's connection with the Liberation Tamil Tigers ofEelam ("LTTE").[2] His application for refugee and protected person status was rejected following the decision of the Refugee and Protection Officer ("RPO").[3] DA appealed that decision to the Immigration and Protection Tribunal("IPT") which dismissed his appeal.[4] He now seeks leave to appeal that decision. He also seeks leave to commence judicial review proceedings.Background[5] DA is of Tamil ethnicity and of the Hindu faith. He was born in Port Pedro on the northern coast of Sri Lanka where his father was a fisherman. DA claims he is the youngest of three sons born to his parents. His says it was not until August 2012 that he first learned of the existence of his oldest sibling, BB. It is DA's casethat the existence of BB was withheld from him by the rest of his family in order to protect all family members from reprisals they might suffer at the hands of the Sri Lankan authorities as a consequence of BB's connection with the LTTE.1 The attributions, DA, BB, AA and CC used in this judgment have been adopted from the same abbreviations used by the IPT in its decision.[6] According to DA, BB, who he says is some 15 years older, went missing about a year after DA was born. Thus DA has no memory of him. After he disappeared BB's family did not see him again despite attempts to find him. Later, the family learned he had been taken as a conscript for the LTTE.[7] As a consequence of BB's connection with the LTTE, DA says the family experienced mistreatment at the hands of the Sri Lankan authorities. DA'simmediately older brother, AA, who is 12 years his senior, also began to experience difficulties and in 1996 left Sri Lanka for India and thereafter to Canada where he obtained refugee status and where he now resides permanently.[8] A year after AA left Sri Lanka DA's father was apprehended and detained in an army camp by the Sri Lankan Army ("SLA") for six weeks. DA claims that during the detention his father was mistreated due to his perceived links to the LTTE through his oldest son and others.[9] On his father's release, DA and his parents travelled to India on false passports. DA had just turned eight. He was registered by his parents at a local refugee camp. His parents did not register themselves. Instead, the family moved into modest rental accommodation nearby. The family's income came from DA's father's work as a porter and funds sent from Canada by AA.[10] DA attended primary and secondary school in India. In 2011, at the age of 21, he graduated with a diploma in information technology. He then examined other similar courses offered overseas. He learned of a diploma in computing in New Zealand. He enrolled. In preparing his New Zealand student visa, prior to his departure, he was required to obtain an exit permit. As part of this process the Indianauthorities stamped his passport as having "overstayed" in India.[11] DA was granted a student visa. In early 2012 he travelled to New Zealand. Here he completed a second diploma in information and technology but was unable to find work in his chosen field. While in New Zealand he maintained close contact with his parents in India and AA who had paid for him to travel to New Zealand andstudy. According to DA, his brother told him he wanted DA to gain employment so he would be successful and could support their parents in the future.[12] In August 2012 DA claims he spoke with his brother via Skype. He said it was in this conversation he first learned about the existence of their oldest brother,BB. AA apparently told him about BB's membership of the LTTE. DA claims hewas referred to a website, www.aruchana.com which contained a photograph of an LTTE member. AA said this was their missing brother, BB. DA said he was told not to raise the subject of their missing brother with their parents. A week or so later DA attempted to broach the topic of BB with AA. AA refused to disclose anything more about their brother.[13] It was during his time in New Zealand that DA was approached by a memberof the National Council of New Zealand Tamils ("NCNZT") to assist with the editingof a video produced by that organisation. The video, which is soon to be released on YouTube and NCNZT's Facebook page, is a love story. DA, using his technical skills, edited the film. His name appears in the credits. The film was entered in a New Zealand competition with eight other films. DA has been approached by NCNZT to assist in the editing of another film which appears to have a more political focus, featuring "the conscience" of a detainee in a Sri Lankan prison. DAapparently does not know any members of NCNZT other than those who contacted him with the request to assist.[14] In late 2013, apparently by reason of his frustrations in failing to secure employment in New Zealand, DA decided to return to Sri Lanka to seek employment. He claims he had the support of his parents who expressed the hope he could establish a life there. However, he says his plans were contrary to the wishes of his Canada-based brother, AA who he says warned him he would face persecution at the hands of the Sri Lanka authorities. Despite this, AA arranged for a friend of his to assist DA once he arrived in Sri Lanka.[15] After landing in Sri Lanka DA spent a night in a lodge with AA's friendbefore setting off by bus to the family's home village the next day. DA claims that on route the bus was stopped at a check point. DA was asked to produce his national identity card which he was unable to do. He says he was then removed from the bus and driven to a location where he was held for several days. During his detention he was questioned about his family background and why he had returned to Sri Lanka. He was shown a photograph of BB. It was the same photograph AA had referred him to on the website.[16] DA claims he denied knowing BB. Despite this he was blindfolded and beaten. He was slashed with a blade on his back and his shoulders. He said he was only released after AA's friend paid his captors a bribe.[17] Several weeks later he returned to New Zealand, destroying his Sri Lankan passport and claiming refugee and protected person status. He claimed that if he was returned to Sri Lanka he would face serious harm, if not death, because of his connection to his brother BB.[18] Sometime later he contacted his parents by telephone. This was facilitated by a friend of his parents, CC, who permitted them access to his own telephone.[19] DA claims he asked his father about BB. He says his father acknowledgedBB's existence but refused to disclose any other details. DA then spoke with CC.He asked CC to find out more about his oldest brother. It is claimed that CC thenquestioned DA's parents who confirmed that BB was an LTTE member and the family had been forced to leave Sri Lanka because of their association with him.[20] DA also claims his father had referred CC to a box "in a safe place", apparently the loft of their home, where he kept a copy of BB's identity card, birth certificate, a family registration booklet recording BB's identity as well ashoroscopes for all three sons. DA says CC sent him copies of these documents.[21] As part of the Refugee Status Branch's ("RSB") investigation into DA's claiman RPO interviewed AA in Canada by telephone on 17 September 2014. A transcript of that conversation, which lasted 5 minutes and 11 seconds, was produced. In the course of the dialogue AA made it plain he did not want to talk about his brother DA. He said they had not talked in a long time, he had spent a lot of money on him and, because of him, AA had encountered problems with his family. Despite repeating he did not wish to speak further with the RPO, AA confirmed that DA was his brother and that he did not have another brother. When the RPO specifically asked him if he had another brother by the name DA had given, AA responded, "No". He thenrepeated he did not want anything to do with DA.[22] On 18 December 2014 DA's application for refugee or protected personsstatus was declined by the RPO. DA then appealed to the IPT.The IPT's decision[23] The IPT delivered its decision on 18 November 2015. It dismissed DA'sapplication.[24] In detail it recounted the background to the claim. It also listed the voluminous evidential material placed before the IPT by the parties. This included aletter from DA's general practitioner which stated he had been discharged from thecare of a psychiatrist in June 2014 having been diagnosed with post traumatic stressdisorder ("PTSD") for which he was prescribed medication. Other evidence of relevance included a supplementary statement from DA, two reports from DA'sconsultant psychiatrist dated 23 April and 11 June 2014, transcripts of DA'sinterview with the RSB, an affidavit of DA's father (apparently filed in support ofDA's application for a student visa in which the father confirmed he had only twosons, DA and AA), copies of documents provided by CC purporting to be the identification details of BB (family registration card listing DA's other siblingsincluding BB), a translation of a statement purported to be given by AA's frienddescribing his involvement with DA following his arrival in Sri Lanka (including the interception of the bus and the bribing of officials resulting in the release of DA) andscreen shots taken from the Aruchuna Facebook page purporting to show images of BB.[25] The IPT discussed the evidence and DA's claims. It rejected DA's claim that BB existed noting that neither AA nor DA's father corroborated this claim. The IPT referred to the father's affidavit in which he declared he had only two sons and noted DA was unable to provide a satisfactory explanation as to why AA did not support his claim that BB existed. In relation to his father's affidavit and his failure todisclose BB's existence, DA claimed his father was driven by fear. The IPT noted this explanation did not sit comfortably with DA's evidence that his father had carried BB's identity documents with him from Sri Lanka and had maintained custody of them for 24 years in India.[26] The IPT also pointed out that DA had provided inconsistent evidence as to who had provided him with the identification documentation relating to BB. First he claimed it was his father. Then, before the IPT, he claimed it was CC. DA also gave differing accounts of whether or not his father knew CC had taken the documents, claiming at various times he did know, that he should have known and, ultimately, that he did not know.[27] The IPT expressed doubts about the reliability and provenance of the Facebook photograph claimed to depict BB. It pointed out that when the RSB located the photograph on the Aruchuna website, the RSB noted it had been uploaded on 26 December 2012 approximately four months after DA claimed AA had referred it to him when they spoke by telephone. In explanation, DA gave various accounts which included a claim the Sri Lankan government had blocked a number of Tamil websites between June 2012 and June 2013. This explanation was rejected by the IPT noting that, if the account was true, DA would not have been able to access the photograph in August 2012 in any event. The IPT described hisevidence as "mobile and contradictory". DA's explanation that he had used a search facility known as "Wayback Machine" was found to be unpersuasive. This facility apparently permits users to access archived versions of web pages. However, this evidence only demonstrated the homepage of the website was accessible at various points in 2012 and, even then, not in August specifically.[28] Furthermore, the IPT regarded DA's explanation for his travel back to SriLanka in late-2013 as not credible. DA claimed he felt it was safe to travel theredespite his brother's misgivings. He said he held this view because the civil war had ended and the country was now safe. He said he was unaware Sri Lankan authorities were interested in individuals with family connections to the LTTE. DA'sexplanation that he was unaware of the true position because he did not read the news was rejected as "trite and implausible". The IPT noted DA was an educated and computer literate man. His intention to return to the country of his birth would have necessarily caused him to reflect on how he might be received after so many years away.[29] Likewise, the IPT found as implausible his claim his parents would support his return to Sri Lanka if the claimed familial connection to LTTE actually existed.Furthermore, DA's knowledge of their own and others' experiences of oppression and ill-treatment at the hands of the Sri Lankan authorities rendered his claim of ignorance unconvincing.[30] In relation to the scars on DA's back and upper arms the IPT did not acceptthese were the result of mistreatment by the Sri Lankan authorities. Neither did theIPT accept DA's diagnosis of PTSD arose from his claimed exposure to abuses received at the hands of Sri Lankan authorities.[31] Thus, in summary, the IPT did not find DA credible in relation to the material facts on which his claim was based, notably BB's existence and DA's account of hismistreatment on his return to Sri Lanka in late 2013.[32] Despite these findings the IPT concluded DA had, nevertheless, provided a partially credible account. It accepted he had assisted in editing the NCNZT film.[33] Having reached this conclusion, the IPT was satisfied, that if taken on itsown, DA's low level of involvement in the film making exercise, while capable in some circumstances of giving rise to a real risk of serious harm in Sri Lanka, no riskexisted for DA. He is not a member of the NCNZT. He has no plans to join it or tobecome politically involved. He has no political background and his engagementwith the NCNZT was limited to providing technical editing assistance in the making of a film which was not political. In these circumstances DA's case wasdistinguishable from other cases where the IPT had found a risk. These were caseswhere claimants had been active members of Tamil organisations in New Zealand.[34] The IPT found DA did not have a well-founded fear of being persecuted in Sri Lanka and was thus not entitled to recognition as a refugee.[35] Additionally, the IPT concluded, for the same reasons, that DA had not established there were substantial grounds for believing he was in danger of torture if deported from New Zealand nor was there evidence to establish substantial grounds for believing that DA was in danger of being subjected to arbitrary deprivation of life, or cruel, or inhuman or degrading treatment if deported from New Zealand.[36] The IPT thus concluded DA was not a refugee nor a protected person within the meaning of the Convention Against Torture or within the meaning of the Covenant on Civil and Political Rights.[37] The appeal was dismissed.Applicant's caseGrounds for seeking leave[38] DA seeks leave on two principal grounds:(a) in respect of the application for leave to appeal, he claims the cumulative factual errors made by the IPT in failing to accept the existence of BB, amount to an error of law; and(b) in respect of his application for leave to file judicial review proceedings, he invokes the notion of substantive unfairness and the innominate ground and argues that:(i) the IPT erred in adopting the evidence obtained by the RPO without question; and(ii) the RPO's decision to conduct a telephone interview of AA inthe absence of the applicant or his counsel was unfair and this contaminated his credibility and devalued his other evidence tending to support the existence of BB.Applicant's submissions[39] As I understood Mr Pidgeon's submissions for DA, the essence of his challenge centres on the circumstances in which the RPO's telephone interview withAA was undertaken and the disproportionate weight which the IPT placed on it withthe consequent effect that its prominence effectively eclipsed the evidence tending tosupport DA's account that BB existed.[40] Mr Pidgeon described the impact of AA's evidence as "catastrophic"; he said it " planted the seed in the [RPO's] mind" with the effect the RPO's conclusionswere adopted without comment by the IPT when it concluded BB did not exist.[41] Mr Pidgeon submits that as a result of the shortcomings of the interview processes, unchallenged and untested statements by AA were relied upon inassessing DA's credibility which Mr Pidgeon described as "the nub" of DA's case.For this reason, Mr Pidgeon accepts that this question is not one of general or public importance and that the only realistic avenue for relief for DA is if his circumstancescan fit within the "any other reason" category in ss 245(3) and 249(6) of theImmigration Act 2009 ("the Act").Mr Pidgeon submits that DA's circumstances dofit within the "any other reason" category on the grounds that there was proceduralunfairness to DA by the RPO conducting a telephone interview of AA in DA'sabsence and/or his counsel and without affording him the opportunity to cross-examine AA. He submits this amounts to a breach of natural justice.Leave principlesLeave to appeal[42] Leave to appeal a decision of the IPT is governed by s 245 of the Act. This imposes three restrictions:(a) an appeal may only be brought with leave of the High Court, or of theCourt of Appeal if the High Court refuses leave;(b) the appeal can only be on a question of law;(c) the Court must have regard to whether the question of law is one that,by reason of its general or public importance, or for any other reason,the question ought to be determined by the High Court.[43] As Kós J described in Taafi v Minister of Immigration, where an applicant seeks leave to appeal a tribunal decision based on a challenge to factual findings,they face a "triple hurdle":2(a) First, the applicant will need to show a seriously arguable case thatfactual findings by the Tribunal are actually incorrect. An appealCourt will not interfere where there is an available evidential basisfor the Court's finding.(b) Secondly, the applicant will need to show that the factual errors are,in combination and in the context of the whole decision, so grave asto constitute an error of law. That is, it is seriously arguable that:(i) the Tribunal has made a finding of fact which is based on noevidence, based on evidence inconsistent with orcontradictory of another finding of fact, or contradictory ofthe only reasonable conclusion of fact available on theevidence; and(ii) the errors of fact are so significant and extensive that aproperly-directed Tribunal may well have reached a differentdecision overall on the application to quash the deportationorder(c) Thirdly, the applicant must show that the question of law (here basedon alleged fundamental errors of fact) is one of general or publicimportance, or for some other reason ought to be considered onappeal."2 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].[44] These criteria have been upheld in a number of subsequent cases;3 indeed inC v Chief Executive, Ministry of Business, Innovation and Employment, Thomas J remarked that the application of the Taafi test is now "well established."4[45] Most recently the Court of Appeal has approved the Taafi formulation inMachida v Chief Executive of Immigration of New Zealand.5 There the Courtconsidered s 245 observing that in practice it requires an applicant to identify aseriously arguable question of law which either:(a) has importance extending beyond the particular case (which is what"general or public importance" entails); or(b) for some other reason, warrants a decision from the High Court.[46] The Court observed at [8]:"Although category (b) is open ended, we agree with the series of decisions in the High Court which have held that it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal's decision standing, that this alternativerequirement could be met."Leave to file judicial review proceedings[47] Under s 249, leave must also be obtained to judicially review a decision of the IPT. In determining whether to grant leave, the Court is required to consider:(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the IPT; and3 Guo v Immigration & Protection Tribunal [2014] NZHC 804; Cao v Immigration & Protection Tribunal [2014] NZHC 259; Teitiota v Chief Executive, Ministry of Business, Innovation and Employment [2013] NZHC 3125.4 C v Chief Executive [2014] NZHC 2655.5 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162 (delivered on 2 May2016).(b) if (a) above applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.[48] Traditionally, the leave provisions for both leave to appeal and judicial review have been interpreted in the same manner.6 However, in RM & SM v Immigration and Protection Tribunal, which was decided before the Court of Appeal delivered its decision in Machida, Palmer J, in recognising that ss 245(3) and 249(6) were similarly worded, suggested that determining whether to grant leave to judicially review a decision of the IPT could invoke wider constitutional or human rights considerations than when determining an application for leave to appeal.7 For reasons which will become apparent later in this judgment, is it unnecessary for me to consider whether I agree with the remarks made by Palmer J.Should leave to appeal be granted?[49] Because of the central importance which Mr Pidgeon attributes to thecircumstances of the RPO's telephone call to AA and his claim that the principles of natural justice were breached, it is appropriate to deal with this issue before embarking on a consideration of the three requirements under Taafi which an applicant in a case such as this is required to satisfy.Was there a breach of natural justice or procedural unfairness?[50] Mr Pidgeon's complaint is that there were fundamental failings in the way in which the evidence of the interview with AA was obtained and presented. These criticisms include the fact the interview was not recorded electronically, the RPO took only handwritten notes and, Mr Pidgeon submits, AA's evident animus should have sounded alarm bells as to the reliability of what he told the RPO. He submits further enquiry may also have disclosed a reason for AA's unreliability or a motive to lie. Mr Pidgeon points out that the only parties to the interview were AA and the RPO. Neither DA nor his counsel was present nor given the opportunity to test the evidence by cross-examination.6 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [7].7 RM & SM v Immigration and Protection Tribunal [2016] NZHC 753 at [42] and [45].[51] Mr Pidgeon submits that in refugee cases applicants sit at the highest end of vulnerability and are potentially at risk of gross human rights violations. The tolerance for procedural unfairness in such cases "must be small".8[52] I do not accept that natural justice principles required the presence of DA or his counsel at the RPO's telephone interview or that cross-examination of AA should have been offered.[53] DA was legally represented when he consented to the RPO contacting AA and signed a privacy waiver to that effect. Thus he and his then counsel must be treated as having known that contact with AA by the RPO was proposed and what the nature of the inquiry would be. There is no evidence any request was made to be present at the interview, let alone a request to participate by cross-examination.[54] Ms Charmley accepts that the principles of natural justice apply to the determination of a refugee claim. However, as emphasised by Courtney J inQ v Attorney-General, the Court of Appeal "has made clear that the requirements ofnatural justice in the immigration context are flexible and must be determined havingregard to all the circumstances".9[55] The processes engaged in by RPOs are materially different to the dynamics of a contested hearing before a tribunal or Court where cross-examination might be expected.10[56] This was the issue which confronted Courtney J in Q v Attorney-General inthe context of a Refugee Status Officer's ("RSO") cancellation enquiry into thestatus of the plaintiff which could result in their loss of refugee status.11Procedurally this was the same as a determination of refugee status.8 BZ (Sri Lanka) v the Immigration and Protection Tribunal of Auckland and Chief Executive Ministry of Business Innovation and Employment CIV-2005-404-1902 [2015] NZHC 2883 at [52] per Whata J.9 Q v Attorney-General [2011] NZAR 625 (HC) citing Daganayasi v Minister of Immigration[1980] 2 NZLR 130 (CA) at 145; Chen v Minister of Immigration [1992] NZAR 261 (CA); andAttorney-General v Udompun [2005] 3 NZLR 204 (CA).10 This is to be contrasted with the facts of BZ v Immigration and Protection Tribunal [2015]NZHC 2883 which concerned the question of the applicant's presence while his wife was givingevidence before the Tribunal.11 RSOs were the predecessors of the present RPOs.[57] Q sought judicial review of the RSO's decision arguing, amongst othergrounds, he should have been provided with an opportunity to cross-examine the witness whose statement was relied on by the RSO in coming to her decision. Courtney J rejected that ground of review observing that as with other aspects of the principles of natural justice, whether cross-examination should be required as a matter of fairness turns on the nature and context of the proceedings. As in the present case, there was no specific right of cross-examination but neither was it precluded. However, her Honour regarded it as significant that an RSO, conducting a cancellation enquiry, has no power to compel attendance or require a witness to answer cross-examination. In those circumstances Courtney J determined she didnot consider that fairness required a right of cross-examination, noting that theappropriate safeguard for the plaintiff is the right to make submissions as to theweight to be given to the witness statements which the RSO must take intoaccount.12[58] With respect, I agree with her Honour's analysis. In my view the samereasoning applies in the context of this case. For that reason I agree with Ms Charmley that the material question is whether a refugee claimant is afforded a reasonable opportunity to respond to any witness statements received by the RPO.Here the RPO's interview report was sent by the RPO to DA. It included a summary of the conversation between the IPT and AA. On DA's request the RPO's file note ofthe telephone interview was also provided.[59] Before the IPT DA was expressly provided with an opportunity to advance any reason or reasons which might have accounted for AA to have lied to the RPO. DA was unable to provide such an explanation despite having knowing of the existence of the conversation and its contents for approximately a year before his case was heard by the IPT.[60] It is also noteworthy that throughout, DA was legally represented. Unfortunately, the notes of evidence of the IPT's proceedings were not available atthe hearing before me. However, before the IPT DA's then counsel filed extensive written submissions which explicitly dealt with why DA's evidence should be12 Q v Attorney-General, above n 9, at [37]-[38].accepted as " credible, plausible and corroborated by independently verifiabledocuments, country information and medical reports". On the question of why itmight have been that AA refused to confirm BB's existence, counsel noted that it was entirely possible this was because AA may have had concerns his own immigration status in Canada could be jeopardised by such a disclosure.[61] However, this submission does not appear to have been supported by evidence from any source, let alone DA himself. On that issue the IPT stated:"[34] When the appellant was asked by the Tribunal to comment upon why his older brother, who had supported him financially in his venture to stay in New Zealand, and had assisted him to return and visit Sri Lanka, would give a contradictory account to them on the existence of another brother, he could provide no explanation, other than that his brother was unhappy with him.[35] The Tribunal reiterated that it appeared surprising that his older brother AA who had provided a mentoring role, with financial and logistical assistance, and who wanted him to succeed in his goal of making a living in New Zealand, would not assist him by providing consistent evidence of the fact of a brother BB. The applicant simply responded that he did not have an answer for this."[62] In my view, it is noteworthy that despite the central significance and importance of this issue, which had been known to DA for months, if not longer, he was unable to provide an explanation to the IPT when expressly invited to do so.[63] It was not until DA affirmed his affidavit on 21 April 2016 in support of the present proceedings that he first proffered an explanation in which he said:"Putting it simply [AA] is my elder brother 15 years and he had funded my travel and living in New Zealand and had been very intense and returned to Sri Lanka even though he reluctantly arranged for his friend [NK] to pick me up from the airport. AA really wanted me to stay in New Zealand and the (sic) acted as if he was my father. He has always stayed in Canada even since he got divorced. It clearly would be a potential risk with the Canadian immigration authorities that they were realising his brother who is a member of the Tamil Tigers (LTTE).At that stage the Canadian authorities viewed the Tamil Tigers as a terrorist organisation. By admitting [BB] existed he was putting at risk as (sic) immigration status in Canada and he chose not to tell the truth but to look after himself."[64] This account was given 19 months after the RPO's conversation with AAand, as agreed by counsel before me, more than 12 months after DA first becameaware of his older brother's denial of BB's existence to the RPO. It was not evidence available to the IPT although it is consistent with the submission made to the IPT byDA's counsel.[65] For these reasons I am not satisfied that the circumstances in which the telephone conversation was obtained and used by the IPT amounted to breach of natural justice or was procedurally unfair.[66] The question before the IPT was the weight which should attach to the evidence. Significantly the interview with AA was not the only evidence tending toundermine DA's claim that BB existed. DA's counsel also made extensive submissions to the IPT in relation to these matters as well as the evidence tending tosupport DA's claim. This is discussed in more detail later in this judgment.[67] Furthermore, I do not accept Mr Pidgeon's submission that the RPO'sconclusions were adopted without comment by the IPT when the former concludedBB did not exist. Under the heading "Credibility" the IPT covers, in considerable detail, its reasons for finding against DA's credibility. Indeed, nearly 20 paragraphsof the reserved decision are specifically devoted to the IPT's treatment of DA'scredibility and the reasons it did not accept his account. More particularly, the IPT dealt with its findings in relation to the existence of BB and why it did not acceptDA's account. It also dealt with other aspects of DA's explanation and why it did not accept DA's evidence on those matters. In my view, the IPT's decision iscomprehensive and its findings in relation to DA's credibility are well reasoned. The inferences of fact which it drew in relation to DA's account were founded inevidence and available to be drawn as inferences of logic. These are dealt with in more detail later in this judgment.[68] It follows I do not accept there was a breach of natural justice. Even ifPalmer J's observations in RM & SM v Immigration and Protection Tribunal wouldpermit me to consider the wider implications surrounding the circumstances of AA'sinterview, this is not a case where it would be appropriate to grant leave even though the question is not one of general or public importance.[69] The consequence of this finding is that it follows that even if I was to find it was seriously arguable the IPT had made incorrect factual findings and that in combination they amounted to an error of law, the question is not one of general or public importance or for some other reason ought to be considered on appeal. However, even if I am wrong, as will become clear, I am not satisfied the IPT erred in its factual findings let alone to the required degree. My reasons follow.Applying the first two Taafi criteria[70] Applying Kós J's formulation in Taafi, where an applicant seeks leave to appeal a tribunal decision based on a challenge to factual findings the applicant must satisfy the following requirements:(a) Is there a seriously arguable case that the factual findings by the tribunal are actually incorrect?(b) If so, are the factual errors in combination and in the context of the whole decision so grave as to constitute an error of law?[71] I shall deal with each of these considerations in turn.Is there a seriously arguable case that the factual findings by the tribunal are actually incorrect?[72] As Ms Charmley, for the second respondent, accepts, a finding of fact can be successfully impugned on appeal only if it renders the decision legally flawed.13 An appeal to this Court is not an opportunity to re-litigate the factual findings of the IPT or the weight attributed to particular evidence, a matter which will seldom amount to an error of law.14 This will be the case if the finding of fact was arrived at with no evidential basis or upon evidence which could not reasonably support its conclusion13 X v Chief Executive, Ministry of Business, Innovation and Employment [2013] NZHC 642 at [18b].14 de Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476, cited with approval inX v Chief Executive, Ministry of Business, Innovation and Employment [2014] NZHC 1647.or failed to draw an inference favourable to the appellant from unchallenged primary facts when such inference is the only one reasonably open.15[73] I do not consider that this hurdle has been cleared in the present case. The IPT's conclusion that BB did not exist was plainly open to it on the available evidence for the following reasons.[74] First, DA's claims regarding BB's existence were directly contradicted by the RPO's telephone interview with AA. Although the interview was of reasonably short duration AA twice stated he had only one brother, he and DA had not spoken in a long time and he did not want anything to do with DA. Furthermore, when specifically asked whether he had a brother with the name nominated by DA, AAreplied, "No".[75] Secondly, DA's father's affidavit in support of DA's student visa application in 2012 mentioned that he had only two sons: DA and AA. DA's explanation for both these contradictions was rejected by the IPT, which found his evidence to be"mobile, contradictory, and imbued with implausibility." This conclusion is unsurprising. I agree with the IPT when it observed it is intrinsically unlikely that AA, having supported his brother financially in establishing himself in New Zealand and completing his studies here, would refuse to corroborate DA's account simply because he was unhappy with him.[76] Thirdly, DA's explanation that his father would have been reluctant to disclose the existence of BB to New Zealand authorities is difficult to reconcile withhis claim that his father carried BB's identification documents with him to India, and retained them for 24 years.15 Ogosi v Minister of Immigration HC Wellington CIV-2206-485-673, 27 April 2007 at [22]-[23] applying Mohamud & Ors v Minister of Immigration HC Wellington AP21/98, 5 October 1998;Zhang v Accident Compensation Corporation HC Auckland CIV-2005-404-7101, 27 October 2006; Taylor v Chief Executive of the Department of Work and Income [2005] NZAR 371 (HC).[77] Fourthly, the IPT understandably attached little weight to the photograph from www.arunchuna.com which DA claimed demonstrates that BB exists and is a member of the LTTE. That this photograph was registered as having been uploaded four months after DA claims to have accessed it, is a further factor tending to undermine his credibility.[78] Fifthly, the IPT was entitled to reject DA's explanation he was ignorant of thedangers he faced in returning to Sri Lanka. DA is educated. He is sophisticated in information technology. His explanation he did not read the news was rightlydismissed by the IPT as "trite and implausible" especially given the imminence ofhis departure to the country his family had fled in fear 16 years before.[79] Sixthly, it was open to the IPT to find as implausible, DA's claim that hisparents supported his return to Sri Lanka. Given they, themselves had fled in fear of reprisals for having family connections with the LTTE and, on DA's account, hisbrother was still active in the LTTE, his parents would have been most unlikely to have supported his return.[80] Finally, as discussed in more detail earlier in this judgment, although not expressly considered by the IPT, DA was unable to provide any explanation from hisown knowledge to account for AA's statement that BB did not exist. Indeed, he was aware of AA's interview with the RPO on 17 September 2014 and yet at the hearing before the IPT in late October 2015 he was still unable to provide an explanation which might have accounted for the stance adopted by AA. It was not until his affidavit of 21 April 2016, filed in relation to the present proceedings, he firstproffered the explanation that AA's own immigration status in Canada would be at risk if AA revealed his brother was connected to the LTTE.[81] Even this explanation is inherently implausible. Why would AA's connections to LTTE via BB pose a risk to AA's immigration status in Canada? Noexplanation is proffered by DA.[82] Against this evidence tending to impeach DA's credibility is the evidence of physical injuries to DA's back and the evidence he suffers from PTSD. The IPTdealt with this evidence in an economic fashion. While not proffering an evidence- based alternative explanation, the IPT simply noted it did not accept that any past injuries and psychiatric problems arose out of circumstances relating to him having abrother in the LTTE.[83] The IPT, in rejecting AA's account that BB existed, was necessarily obligedto reject the evidence of scarring and psychiatric issues as being attributable to DA'sexperiences in detention following his return to Sri Lanka at the end of 2013. Thiswas a matter properly before the IPT and I note Ms Charmley's observation that the RPO invited DA to provide medical evidence to support the claim that his mental health issues were connected to his return to Sri Lanka. No such evidence was provided. Nor was any medical evidence proffered to support DA's account that thescarring on his back was consistent with being caused in the manner he described.[84] In making these credibility findings the IPT did not reject all of DA'sevidence. It accepted he had been involved with the NCNZT in his role as a film editor. It accepted that the fact the NCNZT is not mentioned on the list of proscribed organisations by the government of Sri Lanka does not, in itself, mean that the Sri Lankan authorities have no interest in the Tamil diaspora in New Zealand. It determined the NCNZT advocated for accountability for abuses committed during the conflict. The IPT concluded that involvement in the NCNZT may in somecircumstances result in identification by the Sri Lankan authorities giving rise to areal chance of serious harm in Sri Lanka. However, it determined that no such riskexisted for DA. He was not a member of NCNZT and had no plans to join it tobecome politically involved. He had no political background and his engagementwith the group had been solely in the context of providing his technical skills aseditor. Furthermore, the film was not political in nature. This was the evidentialbasis on which the IPT determined that DA's involvement in the film did not giverise to any real chance of serious harm should he be returned to Sri Lanka.[85] Thus the IPT did not simply adopt the RPO's reasoning without more. The catalogue above reveals the IPT considered DA's evidence was not credible. On theevidence before it such a finding was plainly open. In the context of refugee status claims the IPT is required to assess the claimant's credibility. In Attorney-General v Tamil X the Supreme Court observed:16"The inapplicability of rules of evidence gives the Authority a broaddiscretion as to what material it obtains and uses in its consideration of a claim. A realistic and careful approach to that material must be taken by the Authority, having regard to the evidential gaps and other difficulties that refugee claimants face in making out their claims. A proper analysis and evaluation is required, in the course of which a legitimate and important consideration will often be whether what the applicant says in evidence relevant to his or her status is credible and plausible in the circumstances. Inreaching factual conclusions the Authority must usually assess the credibilityof those giving evidence. "[86] In making credibility findings the IPT was entitled to consider evidential inconsistencies; indeed in my view it was obliged to do so. In BV v Immigration and Protection Tribunal17 the Court of Appeal noted academic research showing"negative credibility factors" as including vagueness, contradictions andimplausibility. The Court of Appeal went on to find that:"An applicant statement must be coherent and plausible and not contraryto generally known facts."[87] Obviously, if evidence is not considered credible, the IPT is not obliged to accept it. As Fisher J observed in Auckland City Council v Wotherspoon18 a Court may not make factual findings without any evidentiary foundation but that notion does not operate in reverse. A Court can always reject evidence. It can decline to find that facts have been affirmatively established, having regard to credibility, weight and permissible inferences. As his Honour observed:"There is in law no answer to the point that the Court at first instance had the power to reject that evidence. The Court cannot conjure up any evidence which is not there but it cannot be forced to accept the evidence put beforeit."16 Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721 at 444.17 BV v Immigration and Protection Tribunal [2014] NZCA 594 at [13].18 Auckland City Council v Wotherspoon [1990] NZLR 76 (HC) at [88]-[88]; cited with approval by the Court of Appeal in JO v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 482 at [19].[88] For the reasons listed above I consider DA has not been able to demonstrate a seriously arguable case that the factual findings made by the IPT are actually incorrect, let alone so incorrect or grave that they constitute an error of law.[89] It thus follows that I am satisfied that leave to appeal should not be given.Should leave to judicially review be granted?[90] I turn now to consider whether leave to file judicial review proceedings should be granted.[91] This consideration can be dealt with in short order. This requires me to consider whether the contemplated review proceedings would involve issues that could not be adequately dealt with in an appeal and, if so, whether those issues, by reason of their general or public importance or for any other reason ought to be submitted to this Court for review.[92] At the heart of DA's claim is the allegation that the IPT's errors of factamounted to an error law. Plainly this is a matter which can be dealt with on appeal. In any case, I have already discussed the legal principles where, in limited circumstances, a finding of fact can be successfully impugned where it was arrived at with no evidential basis or upon evidence which could not reasonably support its conclusion. For the reasons already discussed that is not the case here. However, even if I am wrong, again, I am satisfied, for the reasons already given in this judgment, that there was no breach of natural justice or procedural fairness inrelation to the circumstances in which AA's interview with the RPO was undertakenin the absence of DA and/or in the absence of an opportunity to cross-examine or testAA's assertions.[93] It follows I also decline to grant leave to file judicial review proceedings.Result[94] Both applications for leave are refused.Costs[95] The second respondent having been successful, I am of the view that costs should be awarded in favour of the second respondent on a 2B basis, with disbursements as fixed by the Registrar. However, given I have not heard from counsel on the question of costs, I invite the parties to file a joint memorandum. In the event the parties are unable to agree, costs memoranda are to be filed within 10 days of the date of this decision.Moore JSolicitors:Mr Pidgeon, AucklandCrown Law, Wellington