DY (PAKISTAN) v REFUGEE AND PROTECTION OFFICER [2021] NZCA 522

DY (PAKISTAN) v REFUGEE AND PROTECTION OFFICER [2021] NZCA 522 [11 October 2021]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA288/2021 [2021] NZCA 522BETWEEN DY (PAKISTAN)ApplicantAND REFUGEE AND PROTECTION OFFICERFirst Respondent IMMIGRATION AND PROTECTION TRIBUNAL Second RespondentCourt: Courtney and Collins JJCounsel: S R G Judd, D A Manning and S H Lamain for Applicant C P Paterson and J A Herring for First Respondent No appearance for Second RespondentJudgment:(On the papers)11 October 2021 at 3 pmJUDGMENT OF THE COURTThe applications for leave to appeal and leave to bring judicial review proceedings in the High Court are declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In 2019 DY, a Pakistani citizen, applied unsuccessfully for refugee or protected person status. This was DY's third such application. The Immigration and Protection Tribunal (the IPT) dismissed DY's appeal.1 Following this, DY applied to the High Court for leave to bring a further appeal and leave to bring an application for judicial review. Venning J declined both applications. 2 DY has now applied to this Court under ss 245(1) and 249(3) of the Immigration Act 2009 for leave to appeal or bring judicial review proceedings in the High Court.[2] An appeal from a decision of the IPT is limited to questions of law. In determining whether to grant leave to appeal, 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 ought to be submitted to the High Court.3[3] In determining whether to grant leave to bring judicial review proceedings, the Court must have regard to: 4(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and(b) if paragraph (a) 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.[4] The issues that DY wishes to raise are:(a) Did the IPT err in conducting a two-stage inquiry into the facts and the refugee/protected person claim, rather than the one-stage inquiry described in Karanakaran v Secretary of State for the Home Department,5 leading it to exclude material information?(b) Did the IPT err in its credibility findings?1 DY (Pakistan) [2020] NZIPT 801673 [IPT decision].2 DY Pakistan) v Refugee and Protection Officer [2021] NZHC 874 [High Court judgment].3 Immigration Act 2009, ss 245(1) and (3).4 Section 249(6).5 Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (CA).BackgroundDY's first claim[5] DY is a Pashtun Sunni Muslim. It appears from the IPT decision that he came to New Zealand in early 2016. He had been living and working in the UAE for the preceding eight years. DY's first claim for refugee or protection status was on the basis that he was gay and feared persecution or being subjected to qualifying harm in Pakistan for that reason. During the course of the Refugee Status Branch (RSB)6investigation into his claim, DY admitted that the claim was false and that supporting documents he had provided were fabricated. Instead, DY advanced different a claim based on a relationship he had had with a woman in Pakistan in 2007.[6] By DY's account the woman, M, was already committed to an arranged marriage, but ran away with DY a few days before her wedding. Within a short time M's family located the couple and took M away. M has since married and DY has had no further contact with her. Nevertheless, the shame brought to M's family as a result of DY's actions led to threats to kill DY to restore the family's honour. In 2008 DY left Pakistan and moved to the UAE. During the eight years he lived in the UAE he visited his family five times for short periods, conscious of the risk to himself and his family.[7] The RSB declined DY's claim. In February 2018 the IPT declined DY's appeal, finding that his claim lacked credibility. The Tribunal noted DY's explanation for his initial false claim was that it had been advanced on the advice of members of his community, who considered that his actual problems were insufficient to support a claim for refugee and protected person status. The Tribunal found this implausible given DY's knowledge of honour killings (badal) in Pakistan and the seriousness of the problems he described with M's family. There was also a discrepancy in the narrative as to how long DY had hidden from M's family. Further, notwithstanding DY's unsupported explanation that it was customary to mete out punishment to the man before the woman, the Tribunal was surprised by the fact that M herself had not been harmed in any way despite the length of time that had elapsed.6 Now known as the Refugee Status Unit (RSU).DY's second claim[8] In March 2018, some six weeks after the IPT's first decision, DY lodged a second claim for refugee and protection status with the RSU. He claimed that he would be tortured and killed by M's family. The RSU advised that the second claim appeared identical to the first and it could only consider a subsequent claim if there were a significant change in circumstances material to the claim. DY did not provide any further information and the RSU declined to consider his claim.DY's third claim[9] On 7 September 2018 DY lodged his third claim with the RSU. This claim was advanced on the basis that M had now been killed by the Taliban and that his family in Pakistan were being threatened. In September 2019 the RSU accepted jurisdiction to consider the claim. However, relying on the IPT's previous credibility findings, it declined the claim. DY appealed to the IPT.[10] The IPT began its consideration of the appeal by considering DY's credibility. The IPT found the timing of M's alleged death suspicious. M's death was said to have occurred some 11 years after the attempted elopement and within a few months of DY being advised that his claim could not be considered again unless there were a change of circumstances. Further, although it accepted the nature of badal within the Pashtun culture, it was doubtful that the Taliban would become involved in the dispute only now.7[11] The IPT reviewed the evidence at some length, including DY's own evidence and that of DY's father, which was given remotely.8 DY's father described a meeting with members of the Taliban who told him they had killed M and threatened that if he did not produce DY there would be repercussions for him and his family. Since then the family has moved frequently to avoid being found by the Taliban. However, the IPT was concerned about inconsistencies between the accounts of DY and his father. These differences included who invited DY's father to this meeting, whether he visited7 IPT decision, above n 1, at [58].8 In 2019 DY's father, mother and brother arrived in Australia and sought a protection visa on the ground that they were at risk of harm by M's family.the local mosque before the meeting, and descriptions of the men at the meeting.9The IPT noted that DY was suffering from complex trauma, anxiety, hyperarousal, depression, chronic sleep disturbances and reduced energy. Nonetheless, it was not satisfied as to DY's credibility and rejected the new evidence.[12] On the basis of its credibility finding, the facts that remained were that DY was a Pakistani citizen and Pashtun Sunni Muslim, he had lived in the UAE for eight years before arriving in New Zealand in 2016, and he currently suffered from depression and anxiety. The IPT turned to its assessment of the refugee claim in terms of art 1A(2) of the Refugee Convention,10 concluding that DY did not face a well-founded fear of being persecuted in Pakistan. It reached the same view in relation to the application to be recognised as a protected person under the Convention Against Torture or the International Covenant on Civil and Political Rights.11The High Court decision[13] In the High Court DY argued that the IPT had made errors of law by:(a) wrongly approaching the concept of badal in determining that DY's evidence about the timing of M's death was implausible and not credible;(b) determining that DY's evidence was not credible on the basis of apparent inconsistencies between DY's evidence and that of his father; and(c) failing to apply the benefit of the doubt in DY's favour.[14] DY's counsel also relied on the United Kingdom decision in Karanakaran v Secretary of State for the Home Department as supplying a slightly different and preferable approach to that followed in New Zealand in assessing refugee and protected person claims. 12 Venning J considered that the approach taken by the IPT9 IPT decision, above n 1, at [61] and [63]–[65].10 This is adopted by s 129(1) of the Immigration Act.11 Sections 130(1) and 131(1).12 Karanakaran v Secretary of State for the Home Department, above n 5.had already been sufficiently considered in New Zealand by the Supreme Court inAttorney-General v Tamil X and by this Court in Jiao v Refugee Status Appeals Authority.13[15] Venning J viewed the first two proposed grounds as challenges to factual and credibility findings that did not satisfy the test of error of law required for leave to be granted. 14 Nor did Venning J accept that the third proposed ground raised any seriously arguable error of law.15 This included the argument advanced for DY that the IPT had taken a wrong approach to the credibility assessment, and ought to have started from a position of belief rather than disbelief.Application for leave in this Court[16] In this Court DY identifies two broad grounds of appeal/review. The first is a challenge to the approach taken by the IPT of initially determining the facts based on credibility assessments and then proceeding to apply the legal tests to the facts as found. The second is the approach taken by the IPT to the credibility assessment itself.The approach taken by the IPT[17] The IPT approached DY's appeal on the basis that, in determining whether DY was a refugee or protected person, it was necessary, first, to identify the relevant facts against which the assessment would be made. That required consideration of DY's credibility.16 This initial factual inquiry led the IPT to conclude that the applicant's claim regarding M, her death and threats from the Taliban were false.[18] DY says that, on this approach, it is not surprising that the IPT reached the view that he was not a refugee or protected person. DY argues that the IPT's approach of separating the tasks of (a) finding the facts and (b) applying the legal tests was an error of law. Part of the test for refugee status is a "well-founded fear of being persecuted". 17To be a protected person there must be "substantial grounds for believing" he or she13 Attorney-General v Tamil X [2010] NZSC 107, [2011] 1 NZLR 721; and Jiao v Refugee Status Appeal Authority [2003] NZAR 647 (CA).14 High Court judgment, above n 2, a [32].15 At [48].16 IPT decision, above n 1, at [54].17 Refugee Convention, art 1A(2).would be in danger of being subject to torture, arbitrary deprivation of life or cruel treatment if deported. 18 DY submits that the assessment of the evidence and the likelihood the claims are true should be part of these overall risk assessments contained within the legal tests, not separate from it. This would mean that the IPT would be assessing whether, overall, there is a real chance of a claimant being persecuted if returned to their country of nationality.[19] This argument is advanced in reliance on Karanakaran, which is said to propose a model in which "all evidence capable of being assigned some weight is brought forward to the ultimate inquiry and weighed accordingly". In that case Brooke LJ held "it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur". 19 DY says that, on this approach, it is not necessary or appropriate to make definitive findings of fact when undertaking the assessment. Rather, the process should be flexible — "one [of] arriving at the best possible understanding of the facts in an inherently imperfect environment".20 He points out that this is the reason that credibility assessments in the refugee context must start from a position of belief rather than disbelief.[20] DY acknowledges that the approach taken by the IPT to assessments of refugee claims was considered by the Supreme Court in Tamil X and by this Court in Jiao andBV v Immigration and Protection Tribunal. 21 Whilst the different approach suggested by Karanakaran has not been considered expressly in New Zealand, the nature of the decision-making process under the legislative framework is well-settled as a result ofTamil X and Jiao. The courts have recognised the inquisitorial nature of the inquiry, the evidential challenges facing a claimant and the difficulties inherent in fact finding. They have also refrained from a prescriptive approach. In BV this Court rejected an invitation to approve a different approach, based on a presumption of credibility as the starting point. It observed that, whilst the proposed approach may have obvious18 Immigration Act, ss 130(1) and 131(1).19 Karanakaran v Secretary of State for the Home Department, above n 5, at 469–470.20 Minister for Immigration and Multicultural and Indigenous affairs v SGLB [2004] HCA 32, (2004) 78 ALD 224 at [73] per Kirby J.21 BV v Immigration and Protection Tribunal [2014] NZCA 594, [2015] NZAR 139.legitimacy, it was only one approach and the IPT could not be said to have erred in law by following a different analytical path. 22[21] Nevertheless, DY argues that none of these cases involved a challenge to the "two-stage" approach, which has not been addressed in New Zealand. Whether a person qualifies as a refugee should not vary depending upon the jurisdiction.23 It is therefore appropriate for appellate authority in New Zealand to consider the divergence in other jurisdictions and determine whether the "orthodox approach" is still correct.[22] DY points to the fact that in other jurisdictions there has been a move away from "the common law's traditional goal of achieving 'the correct application of law to facts proved to be true'", rather recognising that "refugee status determination is at heart a risk assessment, and it should function like one". 24 Given that decisions on refugee status are made by reference to both the Refugee Convention and the Immigration Act, the approach taken by the IPT ought to be considered against that taken in comparable jurisdictions. DY submits that this is a question of law that would affect all applicants for refugee or protected person status and is thus a matter of general or public importance.[23] We accept that DY has possibly identified an arguable question of law of general importance. However, the ultimate question when granting leave is whether the question of law "ought to be submitted to the High Court". DY faced significant hurdles in establishing his claim against the background described above and this is his third attempt at refugee or protected person status. We are not satisfied that a different approach would lead to a different outcome. Both the IPT and Venning J thoroughly assessed the evidence and it cannot be said the ultimate conclusion was unreasonable. Accordingly, we do not consider that leave to bring an appeal on this ground is justified in the context of the present case.22 At [14].23 Tamil X v Refugee Status Appeals Authority [2009] NZCA 488, [2010] 2 NZLR 73 at [151]. See also R v Secretary of State for the Home Department, Ex parte Adan [2001] 2 AC 477 (HL) at 516–517.24 Hilary Evans Cameron Refugee Law's Fact-Finding Crisis: Truth, Risk and the Wrong Mistake(Cambridge University Press, Cambridge, 2018) at 187.The IPT's credibility assessment[24] The IPT found that the differences between the accounts given by DY and his father regarding the most recent threats to DY were insurmountable. But DY contends that the IPT erred in several respects:(a) In finding that differences in the respective accounts could not reasonably be attributed to poor memory, the IPT failed to recognise that discrepancies are unsurprising when comparing the father's first-hand account and DY's account of what his father had told him.(b) The IPT's observation that DY did not show any equivocation in his own evidence was incorrect; the transcript shows that, in giving his account, DY used phrases like "probably", "I do not remember" and "that's my assumption".(c) In any event, DY's difficulty recalling details and equivocation is consistent with research regarding the impact of trauma on memory in the context of refugee status determination.[25] DY wishes to argue that these errors led the IPT to reject his father's account entirely, which no reasonable decision maker would have done. As a result, the decision is reviewable either for Wednesbury unreasonableness or error of law in theEdwards v Bairstow sense.25[26] The respondent resists the assertion that the IPT erred in its assessment of the father's account. The inconsistencies went to the core of DY's new claim and the Tribunal was entitled to find this was destructive to the father's credibility. This finding was supported by one aspect on which the father's own credibility was in doubt — his failure to disclose an alleged assault on him by M's family in 2007.[27] A case of this nature is highly fact specific. The IPT was entitled to take into account inconsistencies between the respective accounts. It knew, and expressly25 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL).reminded itself, of DY's mental health conditions. There is nothing to suggest its conclusion that the inconsistencies were not explicable by DY's mental health problems was not open to it. While the decision has great significance for DY, that will be true for every adverse determination of the IPT. It cannot be said that any issue of general or public importance arises here.Result[28] The applications for leave to appeal and leave to judicially review the IPT's decision in the High Court are declined.[29] As DY is legally aided, there is no order as to costs.Solicitors:McLeod & Associates, Auckland for ApplicantMeredith Connell, Auckland for First Respondent