E v CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2017] NZHC 3175

E v CHIEF EXECUTIVE, MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT [2017] NZHC3175 [18 December 2017]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPLICANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-001819[2017] NZHC 3175UNDER THE Judicature Amendment Act 1972 and theImmigration Act 2009IN THE MATTER OF The 1951 Convention Relating to theStatus of Refugees and its 1967 Protocol,the International Covenant on Civil andPolitical Rights and the Conventionagainst Torture and the Vienna Conventionon the Law of TreatiesBETWEEN EApplicantAND CHIEF EXECUTIVE, MINISTRY OFBUSINESS INNOVATION ANDEMPLOYMENTRespondentHearing: 1 June 2017Appearances: G M Coumbe QC assisting the CourtM G Coleman and M Clark for RespondentJudgment: 18 December 2017JUDGMENT OF GILBERT JThis judgment was delivered by me on 18 December 2017 at 3.30 pmpursuant to Rule 11.5 of the High Court Rules..Registrar/Deputy RegistrarCounsel/Solicitors:Gillian Coumbe QC, AucklandMartha Coleman, Barrister, WellingtonCrown Law Office, WellingtonTABLE OF CONTENTSIntroduction [1]–[8]Background [9]First claim for refugee status [10]–[24]Second claim for refugee status and firstclaim for protected person status [25]–[39]Third claim for refugee status and secondclaim for protected person status [40]–[44]First ground — failure to apply the correct testunder s 140(3)? [45]–[62]Second ground — failure to consider whether thecombined report was "new" evidence? [63]–[68]Third ground — error in finding that the medical reportwas reliant on E's own account? [69]–[77]Fourth ground — error in rejecting the medical report onthe basis of earlier credibility findings? [78]–[82]Fifth ground — failing to take other relevant material intoaccount?Facebook material [83]–[85]E's brother's statutory declaration [86]–[91]Result [92]–[93]Introduction[1] This case raises questions about the correct interpretation and application ofs 140 of the Immigration Act 2009 (the Act) which was enacted to limit successiveclaims for recognition as a refugee or protected person and thereby prevent abuse ofthe determination process.[2] It is helpful to set out s 140 in full at the outset:140 Limitation on subsequent claims(1) A refugee and protection officer must not consider a subsequentclaim for recognition as a refugee or a protected person unless theofficer is satisfied —(a) that there has been a significant change in circumstancesmaterial to the claim since the previous claim wasdetermined; and(b) the change in 1 or more of the circumstances was notbrought about by the claimant —(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognitionunder any of sections 129 to 131.(2) For the purposes of determining the matter in subsection (1), therefugee and protection officer must not treat the actions of any otherperson in relation to the claim or the claimant as a mitigating factor.(3) A refugee and protection officer may refuse to consider a subsequentclaim for recognition as a refugee or a protected person if the officeris satisfied that the claim —(a) is manifestly unfounded or clearly abusive; or(b) repeats any claim previously made including a subsequentclaim.[3] The principal issue on this application for judicial review is whether a refugeeand protection officer applied the correct test under s 140(3) in refusing to consider athird claim for recognition as a refugee and a second claim for recognition as aprotected person (the present claim). The key question is whether further medicalevidence provided in support of the present claim means that it does not simply repeata previous claim.[4] The applicant, who I shall refer to as "E", is a citizen of Uganda. He came toNew Zealand in 2007 and since then has made three claims for refugee status and twofor protected person status. None of these claims has succeeded despite appeals to theRefugee Status Appeals Authority (the Authority), the Immigration and ProtectionTribunal (the Tribunal), the Minister of Immigration and an application to this Courtfor leave to apply for judicial review. E's claims have failed essentially because hehas not been believed. He has given multiple different accounts at different times andhas candidly admitted that many of his claims were untruthful.[5] Following delivery of this Court's judgment dismissing the application forleave to apply for judicial review, E made his third claim for recognition as a refugeeand his second for recognition as a protected person. A Refugee and Protection Officerconcluded that this claim was manifestly unfounded, clearly abusive and repeated hisprevious claims. Accordingly, the Officer refused to consider the claim, acting inreliance on s 140(3) of the Act.[6] E applies for judicial review of this decision. In making this application, E hasbeen ably assisted by Ms Coumbe QC who was appointed by the Court to raise allissues and arguments reasonably available to him.1 It is appropriate to record theCourt's gratitude for the quality of the written submissions and oral argumentpresented by all counsel.[7] E claims that the Officer made the following reviewable errors in refusing toconsider the present claim:(a) he failed to apply the correct test under s 140(3);(b) he failed to consider whether a medical report submitted with theapplication was "new" evidence;(c) he erred in finding that the medical report was reliant on E's ownaccount;1 E v Chief Executive, Ministry of Business, Innovation and Employment HC AucklandCIV-2015-404-1219, 10 February 2016 (Minute of Duffy J), 8 March 2016 (Minute of Duffy J),and 13 December 2016 (Minute of Hinton J).(d) he erred in rejecting the medical report on the basis of earlier credibilityfindings; and(e) he failed to take other relevant material into account.[8] Ms Coumbe submits that the test under s 140(3) is stringent and was not madeout. She argues that E's present claim should not have been summarily dismissed,particularly given it is supported by new medical evidence. An order is sought settingaside the decision and directing that another officer consider E's present claim on itsmerits.Background[9] It is convenient to commence by detailing the prior claims and the decisionsdeclining these claims. This will set the context for assessing the significance of the"new" medical evidence and its relevance to the earlier adverse credibility findingsagainst E. It will also enable the present claim to be compared with the earlier claims.First claim for refugee status[10] A refugee is defined by the United Nations Convention Relating to the Statusof Refugees and the Protocol Relating to the Status of Refugees and includes a personwho is unable or unwilling to return to their country of origin owing to a well-foundedfear of being persecuted for reasons of race, religion, nationality, membership of aparticular social group, or political opinion.[11] E made his first claim for refugee status shortly after his arrival in May 2007.In his initial written application, E said that he had been very politically active inUganda and had been a supporter of the Forum for Democratic Change (FDC). Heattached a membership card purportedly issued by FDC in 2002. He also said he wasa born again Christian. He said he was previously imprisoned and tortured because ofhis political beliefs. He claimed he had to leave Uganda because he had been "attackedduring a demonstration and was sought by the authorities".[12] E expanded on his claim in a written statement he prepared in June 2007 withthe assistance of his solicitor. He also gave evidence during the course of an extensiveinterview conducted by a Refugee Status Officer over a four-day period during July toSeptember 2007. E said that in 2001 he was attacked by police who put him in a carand blindfolded him. They then took him to a place where he was imprisoned for threeweeks and repeatedly beaten with batons. He said that after his knee was broken hewas "dumped" in a rural hospital but he was later taken to a bigger hospital afterrelatives paid money to the police.[13] E said he had to leave Uganda six years later after he took part in ademonstration in April 2007 protesting against a decision by the government to clearthe local Mabira forest in order to grow sugar cane. He said the government broughtin soldiers dressed in police uniforms who shot at the demonstrators and beat themwith sticks. He said he ran home but armed men came looking for him a few dayslater. He said he was very fearful of what would happen to him if he was caught bythe authorities and this is why he decided to leave Uganda and flee to New Zealand.[14] The Refugee Status Officer declined E's claim for refugee status for reasonsdetailed in his decision dated 30 April 2008. The Officer found that many aspects ofE's account, which went to the core of his claim, were not consistent with countryinformation. For example, E claimed to have supported and worked for a politicalparty called Reform Agenda from May 1998 whereas country information showed thatthis party was not formed until after the 2001 presidential elections. The FDCmembership card E produced dated 11 January 2002 was found to be false because theFDC was not established until August 2004 and did not commence issuingmembership cards until November 2006. E's claim that he was paid as a campaignagent and to have been based at FDC national headquarters was contradicted byinformation supplied by senior FDC officials. The letter E produced purporting toconfirm his appointment as a campaign agent of the FDC was also found to be false.[15] E appealed against this decision to the Refugee Status Appeals Authority. Theappeal hearing was conducted over three distinct periods, September 2008,December 2008 and February 2009. This was because E's instructions to his solicitorkept changing. Ultimately, E gave four different accounts to the Authority during thecourse of the hearing.[16] The Authority recorded the circumstances surrounding each of these changesin its decision dated 28 July 2009 declining the appeal.2[17] On 3 September 2008, during the third day of evidence (the first account),counsel advised the Authority that they had received instructions from E whichamounted to a "significant departure" from his previous instructions and the evidencehe had given to the Authority.3 The hearing was accordingly adjourned untilDecember 2008.[18] When the hearing resumed in December E gave a second account. During thecourse of hearing this evidence, counsel advised that E had instructed them to informthe Authority that some of the evidence he had given in support of this second accountwas also not truthful.4 It was agreed that the hearing would be adjourned for a secondtime.[19] When the hearing resumed on 16 February 2009, E made some significantadmissions about the untruthfulness of his second account. These were recorded bythe Authority as follows:5[E] now admitted he did not:(a) hold the positions of junior and full campaign agent in the FDC as hehad claimed;(b) undertake any of the activities in these positions as he had claimed;(c) suffer any arrests, detention or beatings following his release in2001.[20] On 17 February 2009, after E gave evidence in support of his third account,counsel asked for yet another adjournment to take further instructions and prepare a2 Refugee Appeal No 76216 (28 July 2009).3 At [14].4 At [25].5 At [26].new statement.6 This statement was provided to the Authority on 20 February 2009and further evidence was given on 25 February 2009. E made further significantadmissions that his earlier statements were untrue, which the Authority recorded:7 [E] now admitted that:(a) He had not converted to Christianity as he had claimed in his firststory. In truth, the appellant was a Muslim and has always been aMuslim;(b) He did not do anything in respect of the Mabira forest campaign butmerely supported those who were actively involved in the campaign;(c) His wife and other family members had not been assaulted by theauthorities because of his involvement in the Mabira forest or theFDC.[21] E also offered an explanation for making these false claims which the Authorityalso recorded in its decision:8He claims that he mentioned to his brothers B2 and B1 the problems he washaving in sticking to the false story before the Authority. They had advisedhim to carry on with the charade but to adjust the dates. He followed thisadvice and received a further false police bond which he submitted.[22] The Authority summarised E's four accounts as follows:9(a) That he is a Muslim apostate who converted to Christianity. He wasan active member of Reform Agenda and the Forum for DemocraticChange (FDC) — well known opposition parties in Uganda — invarious capacities between 1999 and 2006. He was detained in 2001.He also claimed to have participated in a number of demonstrationsin 2007 organised by a coalition of opposition political parties inprotest against the Ugandan government's planned sale of a particularforest ("the appellant's first story").(b) That he is a Muslim convert who held the political positions claimedin his first story. He was detained not only in 2001 but also in 2006.He did not take part in the demonstrations relating to the forest butrather acted as a "mobiliser", distributing fliers and stickers andgenerally encouraging other people to join the demonstrations ("theappellant's second story").(c) That he is a Christian convert who, in the period following hisdetention in 2001 until he resumed activities for the FDC in 2006, hadnot been actively involved with Reform Agenda or the FDC. He had6 At [36].7 At [37].8 At [37].9 At [3].not been detained in 2006. Nevertheless he had acted as a mobiliserin respect of the forest demonstrations ("the appellant's third story").(d) That he is not a Christian convert. He had been involved in thepolitical activities as he claimed in his third story. However, he hadnot been a mobiliser in respect of the forest demonstrations but hadmerely supported those who were active. He was at risk because hehad been caught at the United States Embassy in Kampala with apassport containing false entry stamps; because he had exposed thepeople smuggling ring which had brought him to New Zealand andbecause details of his refugee claim had been published in a Ugandannewspaper ("the appellant's fourth story").[23] The Authority noted that E abandoned the first three of these accounts andfinally elected to adhere to the fourth.10 The Authority also recorded E's admissionthat he had produced a number of documents in evidence that he knew to be false.11The Authority then gave convincing reasons why E's most recent account was"implausible"12 and "far-fetched".13 The Authority concluded that there was nocredible evidence to establish that E has a well-founded fear of being persecuted for aConvention reason and he was therefore not a refugee.14 E's appeal was accordinglydismissed by the Authority in its decision dated 28 July 2009.[24] E appealed to the Minister of Immigration on 3 March 2010 but this wasdeclined on 22 September 2010.Second claim for refugee status and first claim for protected person status[25] E made a second claim for refugee status and also claimed protected personstatus in November 2010. A person must be recognised as a protected person if thereare substantial grounds for believing that he or she would be in danger of beingsubjected to torture, arbitrary deprivation of life or cruel treatment if deported fromNew Zealand. E stated that he feared being arrested, tortured and possibly killed if hereturned to Uganda. He said he believed this would happen because of his publiclyexpressed opposition to the government and the Ugandan authorities' knowledge thathe is seeking asylum in New Zealand.10 At [3].11 At [3].12 At [75] and [78].13 At [77].14 At [109].[26] The application was assessed by a different Refugee and Protection Officerfollowing a further interview conducted on 24 February 2011. In deciding whetherthere had been a significant change in circumstances material to the claim since theprevious claim was determined and therefore jurisdiction under s 140(1) of the Act toconsider it, the Officer summarised E's original claim (the fourth version) andcompared that to the second claim. The original claim was summarised in these terms:[E's] original account was based on his claim that he travelled to New Zealandunder a false identity via a YMCA scam. He feared that he would be at riskfrom the people connected to the YMCA-linked people-smuggling-ring,which also involved a Ugandan security officer. [E] fears he would be accusedof using false documents and charged. He claimed that his name, photographand details of his refugee claim were published in a Ugandan newspaper. [E]also claimed that he would be investigated about his previous passport whichthe US Embassy officials confiscated and sent to the Ugandan authorities inJuly 2004 following [E's] attempt to obtain a US visa under the YMCA scam.He also claimed that he was arrested and tortured, and sustained injuries in2001 due to his opposition activities, and that he was involved in FDCcampaign in the 2006 election.[27] The Officer noted that the second claim was "largely advanced" on the samegrounds relied on previously, namely:• The Ugandan authorities may have learned about his travel toNew Zealand under a false identity via a YMCA scam and that he wouldbe accused of using false documents and charged.• He would be at risk from the people connected to the YMCA-scam,including a Ugandan security officer.• His name and the details of his refugee claim were disclosed andpublished in a Ugandan media following an enquiry by an RSO about hispolitical involvement with the FDC.• He was arrested and tortured by the Ugandan security, and sustainedinjuries in 2001.• He was involved in FDC campaign in the 2006 election.[28] However, the Officer observed that since E's previous claim was determinedhe had obtained a Ugandan emergency travel card from the UgandanHigh Commission in Canberra. As a result, E claimed that the Ugandan authoritieslearned of his illegal departure from the country and his fraudulent attempt to obtain aUnited States visa resulting in his passport being confiscated in July 2004. He claimedthat his wife had been detained and questioned by Ugandan security officers inNovember 2010 concerning E's "opposition activities" in Uganda and New Zealand.The Officer concluded that there had been a sufficient change in circumstances tojustify considering E's further claim.[29] The Officer carefully analysed each aspect of the claim and concluded thatthere was no "real chance" of E being persecuted if he returned to Uganda. His fearof being persecuted was therefore not well-founded. Similarly, there were nosubstantial grounds for believing that E would be in danger of being tortured, subjectedto arbitrary deprivation of life or cruel treatment if deported from New Zealand.Accordingly, E's application was declined on 1 November 2011.[30] E appealed to the Tribunal on 9 November 2011. The hearing took place overtwo days, 28 August 2012 and 12 June 2013. The Tribunal issued its decisiondeclining the appeal on 11 February 2014.15[31] The Tribunal summarised E's claims at this appeal hearing as follows:16The appellant maintained his previous claim to be at risk because of pastpolitical activities. He renewed his claim that his unlawful status inNew Zealand has been brought to the attention of the Ugandan authorities(albeit for different reasons). He also claims that he will attract adverseattention upon his return because he will enter Uganda using an emergencytravel document, rather than a passport. He also asserts a new claim that thecontent of political commentary that he has been posting on the internet sincecoming to New Zealand will create difficulties for him. He also claims thathe is at risk by virtue of association with four dissidents who fled Ugandabecause they were implicated in a plot to overthrow the government inUganda. The appellant has never met any of them personally but believes heis at risk because all four have joined his Facebook page. He also claims tobe at risk because his brother recently experienced political difficulties of hisown. He believes that he will have acquired a profile in Uganda through hisinvolvement with a philanthropist in New Zealand, Alistair Galpin, inconnection with a humanitarian engineering project proposed for a part ofUganda. Finally, he claims that he may be at risk by reason of comment madein connection with two Ugandan cricketers who may have sought asylum inNew Zealand in 2014.[32] In rejecting E's appeal regarding refugee status, the Tribunal concluded thatthere was no credible evidence that E was of any interest to the Ugandan authorities15 Re [E] [2013] NZIPT 800261.16 At [26].when he left Uganda or that he has become of interest to them since that time.17 TheTribunal considered that any risk faced by E in Uganda was "speculative to the pointof being remote".18[33] The Tribunal also found that there were no substantial grounds for believingthat E was in danger of being subjected to torture, arbitrary deprivation of life or crueltreatment if he returned to Uganda.19 Accordingly, E was not entitled to be recognisedas a protected person.[34] In March 2014 E applied for leave to bring judicial review proceedings againstthe Tribunal's decision. The proposed grounds of review were: first, that importantmedical evidence (a report of Dr Thomas Wenzel) was not before the Tribunal and thiswould have answered the adverse findings the Tribunal made about E's credibility;and second, whether s 231 of the Act had been misinterpreted and misapplied by theTribunal. This section entitles the Tribunal to rely on any finding of credibility or factmade previously by the Tribunal or any appeals body.[35] In a judgment delivered on 28 November 2014 Venning J concluded thatneither of the proposed grounds of review was arguable.20 Accordingly he declinedthe application for leave to bring the judicial review proceedings.[36] Dr Wenzel is a professor of psychiatry at the University of Vienna. He and DrSebnem Korur Fincanci, a professor of forensic medicine at Istanbul University, werein Auckland in June 2011 to train a group of medical doctors and members of the NewZealand asylum authority on the application of the Istanbul Protocol.21 These twodoctors are internationally recognised experts in assessing victims of torture and theyexamined E on 21 June 2011.17 At [94].18 At [97].19 At [101] and [105].20 D v Immigration & Protection Tribunal [2014] NZHC 3017 at [35] and [44].21 The Istanbul Protocol is a manual on the effective investigation and documentation of torture andother cruel, inhuman or degrading treatment or punishment. It was submitted to the UnitedNations High Commissioner for Human Rights on 9 August 1999.[37] It was intended that they would prepare a joint report. However, for variousreasons (not related to E) their joint report was not completed until July 2014. In theinterim, Dr Wenzel prepared a separate report dated 24 August 2012. In this report,Dr Wenzel noted that E's short-term memory "might be mildly impaired" but statedthat his long-term memory "is mostly intact". Dr Wenzel expressed the opinion thatE's symptoms were "highly consistent" with post-traumatic stress disorder and this inturn was "consistent with events described in the patients documentation andnarrative". This narrative of events was not detailed in the report but was said to be"conveyed separately". This appears to be a reference to the intended joint reportwhich is now relied on as the "new" medical evidence.[38] Counsel decided not to produce Dr Wenzel's report to the Tribunal because sheconsidered it needed to be supported by the expected report from Dr Fincanci.Venning J considered that this was a reasonable decision.22 Instead, counsel providedthe Tribunal with a report dated 17 October 2012 from Dr Katie Ritchie, a consultantpsychiatrist, stating that E "has a diagnosis" of post-traumatic stress disorder. Counselalso produced a report dated 17 December 2012 from Dr Martin Reeve, the PublicHealth Medical Officer at the Mangere Refugee Resettlement Centre. This report wasnot produced for the purposes of the current hearing but its contents were describedby Venning J in his judgment. Dr Reeve considered that: E's left leg bore surgicalscars; x-rays disclosed the existence of screws that were consistent with E's claim tohave been hit on the leg with a rifle butt and a baton; and scars on the inner part of hislower left shin and the inside of his left foot were consistent with being caused by abayonet.23[39] Venning J concluded that the further medical evidence from Dr Wenzel couldnot be admitted.24 This was because it was available at the time of the hearing and theTribunal knew of the prospect of it being available.25 Further, even if the evidencewas admitted, it merely confirmed the evidence of Dr Ritchie that E suffers from post-traumatic stress disorder.26 Venning J considered that the fundamental difficulty for E22 D v Immigration & Protection Tribunal, above n 20, at [29].23 At [17].24 At [27].25 At [28].26 At [30].was that all medical reports, including that of Dr Wenzel, relied on E's report of hissymptoms and the cause of his injuries.27 Venning J considered that Dr Wenzel'sreport could not overcome the Tribunal's finding that there was no credible evidenceto confirm how the injuries were caused.28Third claim for refugee status and second claim for protected person status[40] In December 2014, soon after delivery of Venning J's judgment, E brought athird claim for refugee status and a second claim for protected person status. E'scounsel stated that this "claim centres on [E's] political opinion and membership as adissident against the Ugandan authorities". Counsel submitted that a "significantchange or piece of new information" was the completed combined report ofDrs Wenzel and Fincanci. Counsel further submitted that this medical evidencesupported E's claims that he had been beaten.[41] The joint report dated 7 July 2014 records the history including thecircumstances of E's arrest as related by E. This was the "narrative including historyof alleged torture and mistreatment, as well as medical history" that was referred to byDr Wenzel as having been "conveyed separately" in his 24 August 2012 report. Thishistory was recorded in the joint report as follows:In 1998 there had been a casualty where 41 people were killed and he sufferedhead trauma during this attack. In 2001 he was detained for 3 weeks wherehe was put in a dark and crowded room. They had squeezed his first toe,forced to fall down and kicked to the wall, a blindfold and handcuffs wereapplied and beaten where they had hit on his knee with batons which resultedwith severe injuries and he had been unconscious for the last week ofdetention. In 2006 he had been attacked, and kicked severely which causedchest pain. He had an operation after 2001 event and then had to leave Ugandafor safety. He worked in his own private electronics job before he left Uganda,and he is worried about his wife and children.[42] The doctors set out their conclusions as follows:His medical examination revealed that he had several marks, and particularlya multiple fragmented tibia with an intact fibula which supports his narrativeto be beaten severely and his knee was targeted.27 At [31].28 At [31].Psychological/Psychiatric symptomatology and diagnosis assessed togetherwith physical findings based on a thorough medical examination indicate thatall physical and psychological findings are highly consistent with the patient'shistory of torture and mistreatment.His history of torture with all described methods is found to be reliable sincehe also indicated several of the scars to be sustained before detention, notbeing related with his torture which confirmed his sincerity.[43] E's further claim was referred to a third Refugee and Protection Officer. TheOfficer considered that E's claim "simply repeated aspects of his previous claim;namely his political opinion and comments made on the internet". The Officer notedthat the Tribunal had already found that there was no credible evidence that E was aperson of interest to the Ugandan authorities or that his expression of opinion on theinternet would come to their attention or create difficulties for him on his return. TheOfficer considered that the combined medical report of Drs Wenzel and Fincanci "doesnot constitute a different ground for the purpose of s 140(3)". The Officer noted theTribunal's finding, which was confirmed by Venning J, that there was no credibleevidence to establish how or why these injuries arose. For this reason, the Officerconcluded that E's current claim was manifestly unfounded, clearly abusive andrepeated his previous claims. He accordingly refused to consider the claim relying ons 140(3) of the Act.[44] The present application for judicial review is brought in relation to thisdecision.First ground — failure to apply the correct test under s 140(3)?[45] There are two limbs in s 140(3): the subsequent claim is manifestly unfoundedor clearly abusive; and the subsequent claim repeats a previous claim. Although theOfficer relied on both limbs, the argument principally focuses on whether the Officererred in finding that the present claim repeats a previous claim despite being supportedby "new" medical evidence.[46] Ms Coumbe draws attention to the Tribunal's decision in AO (Afghanistan)holding that a literal interpretation of "claim previously made" is required such that itwill only apply to claims previously made that are re-filed without any modification:29 the phrase "repeats a claim previously made" must be taken as meaningexactly that. This applies where the second or subsequent claim is no morethan an unmodified re-filing of a previous claim.[47] Ms Coumbe realistically acknowledges that the Court might be reluctant toadopt such a literal interpretation. Plainly, there could be no justification for takingsuch an approach. It would mean that any modification to an earlier claim, no matterhow inconsequential, would be sufficient to avoid the operation of the provision andenable an applicant to require the process to be undertaken afresh with the attendantappeal rights. Such an interpretation would defeat the clear legislative purpose whichis to prevent the process being abused.[48] While recognising that the Court may prefer a less literal interpretation,Ms Coumbe submits that for a claim to repeat a claim previously made, it would needto be obvious on its face that the subsequent claim as asserted in fact adds nothingnew. On the other hand, where additional evidence is provided in support of asubsequent claim, s 140(3)(b) cannot be invoked unless it is obvious that the additionalmaterial is not credible "new" evidence that was not reasonably available earlier.[49] Ms Coumbe argues that this test was not applied in this case because the Officerstated that "further evidence in support of a previous claim does not constitute adifferent ground for the purpose of s 140(3)". Ms Coumbe submits that this statementdoes not reflect the statutory language and impermissibly broadens the scope of s140(3). She argues that the test applied by the Officer would necessarily capture anysubsequent claim that differs from a previous claim only to the extent that it relies onfurther evidence. She says that such an interpretation cannot be correct because itwould mean, for example, that where a history of torture was alleged in the previousclaim, then any additional independent evidence of such torture, no matter howcompelling, could not found a new claim.29 AO (Afghanistan) [2015] NZITP 800797 at [33].[50] Ms Coumbe drew attention to several judgments of this Court dealing withs 140 but none of these address the particular point at issue in this case.30 She alsoattempted to draw support from United Kingdom and Canadian authorities. However,there are material differences in the legislation and those authorities are consequentlyof limited assistance.[51] In the United Kingdom "further submissions" will amount to a fresh claim ifthey are significantly different from the material that has previously been considered.In R (on the application of HS (Uganda)) v Secretary of State for the HomeDepartment the Court of Appeal of England and Wales considered that a medicalreport arguably "changed the landscape" of the claim for asylum so as to qualify it asa fresh claim.31 In Canada there is specific provision for "new evidence" to bepresented. The United Kingdom and Canadian authorities therefore have to be treatedwith care before applying them in the New Zealand context.[52] The equivalent provision in the United Kingdom is r 353 of the ImmigrationRules, which provides:Fresh Claims353. When a human rights or protection claim has been refused or withdrawnor treated as withdrawn under paragraph 333C of these Rules and any appealrelating to that claim is no longer pending, the decision maker will considerany further submissions and, if rejected, will then determine whether theyamount to a fresh claim. The submissions will amount to a fresh claim if theyare significantly different from the material that has previously beenconsidered. The submissions will only be significantly different if the content:(i) had not already been considered; and(ii) taken together with the previously considered material, created arealistic prospect of success, notwithstanding its rejection. Thisparagraph does not apply to claims made overseas.30 BV v Immigration and Protection Tribunal [2014] NZHC 283, [2014] NZAR 415; CP v The ChiefExecutive, Ministry of Business, Innovation and Employment [2015] NZHC 3332; BD (India) vThe Refugee and Protection Officer [2016] NZHC 1762; and AR v Refugee and Protection Officer[2016] NZHC 2916.31 R (on the application of HS (Uganda)) v Secretary of State for the Home Department [2012]EWCA Civ 94, [2012] All ER (D) 117 at [62].[53] The comparable provision in Canada is s 113 of the Immigration and RefugeeProtection Act 2001, which enables a person to apply for relief from a removal order.The Canadian scheme contains a fresh evidence provision:Consideration of application113 Consideration of an application for protection shall be as follows:(a) an applicant whose claim to refugee protection has beenrejected may present only new evidence that arose after therejection or was not reasonably available, or that the applicantcould not reasonably have been expected in the circumstancesto have presented, at the time of the rejection;[54] There is no equivalent of these provisions in the New Zealand legislationenabling reconsideration of a rejected claim upon receipt of "further submissions" or"new evidence".[55] By virtue of s 140(1) of the Act a refugee and protection officer is not permittedto consider a subsequent claim unless there has been a "significant change incircumstances material to the claim" since the previous claim was determined. Forthe reasons that follow, I consider that "circumstances material to the claim" refers tothe facts on the ground supporting the claim, not to the evidence establishing thosefacts.[56] First, this interpretation gives the word "circumstances" its natural andordinary meaning. The primary meaning of "circumstance" according to theNew Zealand Oxford Dictionary is:A fact, occurrence, or condition, esp. (in pl.) the time, place, manner, cause,occasion etc., or surroundings of an act or event.(in pl.) the external conditions that affect or might affect an action.An incident, occurrence, or fact, as needing consideration.[57] Second, this interpretation is supported by the second limb of the test ins 140(1) which refers to "circumstances" "brought about by the claimant" for the"purpose of creating grounds for recognition". The "circumstances" referred to ins 140(1)(b) cannot sensibly mean evidence. There is an obvious difference between"grounds" and "evidence".[58] Third, this interpretation fits most naturally with the surrounding provisions.Section 133 of the Act sets out how a claim is made. The person making the claimmust provide all relevant information to support it including a statement of the groundsof the claim. In terms of s 135, responsibility is placed on the claimant to establishthe claim. The claimant must ensure that all information, evidence and submissionsis provided to the refugee and protection officer prior to the determination being made.[59] The terminology is clear and consistent. The "evidence" proves the"circumstances" which constitute the "grounds" to establish the "claim".[60] While the power to refuse to consider a subsequent claim under s 140(3) of theAct can be exercised without having to address whether the prohibition in s 140(1)applies, these subsections need to be read together to understand the intended scopeof subsection (3). The power under subsection (3) to refuse to consider a subsequentclaim that repeats a previous claim must extend to claims that have passed, or are atleast capable of passing, through the subsection (1) filter. Otherwise, the provisionwould be otiose.[61] Here, there is no suggestion that the circumstances — that is the facts on theground — relied on in support of E's claim have changed in any material respect. Itfollows that the Officer would not have been permitted to consider the claim becauseof the prohibition in s 140(1). He was correct to conclude that s 140(3) was alsoengaged, because despite the further medical evidence, it was clear on the face of thematerial provided that the present claim repeated an earlier claim.[62] In conclusion, while the Officer departed from the precise language of s 140(3)by stating that "further evidence in support of a previous claim does not constitute adifferent ground", I am not persuaded that this was a material error. A subsequentclaim will repeat a previous claim if the same ground is relied on and there is nomaterial change in circumstances, only additional evidence of the unchangedcircumstances. This ground accordingly fails.Second ground — failure to consider whether the combined report was "new"evidence?[63] My conclusion on the first ground is sufficient to dispose of the applicationbecause the remaining grounds are contingent on E succeeding on the first ground.However, in case I am wrong on the first issue, I deal briefly with the remaininggrounds of review.[64] Ms Coumbe's conception of "new" evidence appears to draw on theUnited Kingdom and Canadian authorities. As noted above, in the United Kingdom"further submissions", which would include new evidence, may found a "fresh claim".In Canada there is express provision for "new evidence" to be presented after a claimhas been rejected. There is no equivalent in the New Zealand legislation, which makesno reference to "new evidence". However, for the purposes of addressing this groundof appeal I will assume, contrary to my earlier finding, that further evidence could beregarded as "a significant change in circumstances material to the claim" for thepurposes of s 140(1) and qualify a subsequent claim as distinct from a previous claimfor the purposes of s 140(3)(b). In that case, a failure to consider whether suchevidence was "new", such that it materially changed the landscape, could constitute areviewable error.[65] I do not accept Ms Coumbe's submission that the Officer failed to considerwhether the evidence was new. It is clear that the Officer considered the combinedreport. He observed that it "relates to [E's] most recent account of his mistreatmentby the Ugandan authorities" which had already been found not credible by theTribunal.[66] Dr Wenzel's opinion in the joint report was that E displayed symptoms highlyconsistent with chronic post-traumatic stress disorder which was in turn consistentwith events described by E. This confirms the evidence that was presented to theTribunal from Dr Ritchie that E suffers from post-traumatic stress disorder.Dr Ritchie's evidence was before the Tribunal and does not appear to have beenchallenged.[67] Dr Fincanci's opinion in the joint report was that E's leg injuries were "highlyconsistent" with being beaten by a solid object. She noted that E's intact fibulasupports a conclusion that he sustained direct targeted blows on his tibia. This wouldsuggest that these injuries were not sustained in other types of trauma such as a trafficaccident. Dr Fincanci's opinion confirms the evidence of Dr Reeve that these injurieswere consistent with E's account of having been beaten. The fact that E has theseinjuries to his leg has never been in dispute.[68] As noted, the evidence of Drs Ritchie and Reeve appears not to have beencontested. The joint report adds nothing material. It is not "new" in the required sense;it does not materially change the landscape. This ground also fails.Third ground — error in finding that the medical report was reliant on E's ownaccount?[69] The "new" medical evidence cannot overcome the fundamental problemE faces. The issue is whether E has a well-founded fear of being persecuted by reasonof his political opinion, religion or for some other Convention reason. Drs Wenzel andFincanci conclude that their physical and psychological findings are highly consistentwith E's history of torture and mistreatment as relayed by him. The dates of arrest andalleged torture were recorded in their report as 1998, 2001 and 2006. The arrestingunit was recorded as "Army?" However, this "history" has been discredited, includingby E himself.[70] E told these doctors when they examined him in June 2011 of an "attack" in1998 in which 41 people were killed and he suffered head trauma. This alleged attackhas not featured in any of the numerous detailed accounts given by E in his writtenand oral evidence over the past 10 years.[71] E also advised the doctors that he had been unconscious for the last week ofhis three-week detention in 2001. This was an escalation on anything he had saidpreviously.[72] E also told the doctors that he was "attacked, and kicked severely" in 2006.However, E told the Authority in February 2009 that he did not suffer any arrests,detention or beatings following his release in 2001. He told the Authority that hisearlier claim about what had happened to him in 2006 was part of the "false story" hewas having "problems" "sticking to".[73] Whereas E previously claimed that he feared persecution by the government,he now claims that he is "at risk from people connected to the YMCA-linkedpeople-smuggling-ring".[74] I readily accept Ms Coumbe's submission that all relevant evidence should beconsidered in assessing a claim and that medical findings can corroborate a claimant'sevidence. There is ample authority to support this self-evident proposition.32[75] However, there are limits to the support that can be drawn from corroboratingmedical evidence. A medical finding that an injury is consistent with a claimant'saccount of torture can support that account but not if other evidence demonstrates itsfalsity. Here, E has admitted that his account was false. Although he has consistentlyclaimed that he was beaten in 2001, the asserted reason for this beating was hispolitical involvement with Reform Agenda and FDC. However, his claims in thatrespect were discredited and ultimately acknowledged to be false by E himself.[76] The Officer was correct to observe that the combined report related to E'saccount of what had allegedly happened to him in 1998, 2001 and 2006. Theindependent psychological and physiological findings could lend support to thataccount but not if it had already been proved to be false, as was the case here. Theclaimed history of torture in 1998 never featured in any of E's claims. The claimedevents in 2006 did not feature originally. They were introduced at the appeal hearingbefore the Authority as part of his "second story" to answer the difficulty that hisclaimed involvement in FDC could not explain the 2001 beating because FDC was notformed until August 2004 and did not commence issuing membership cards such ashe possessed until November 2006. E later acknowledged that he did not hold thepositions previously claimed with FDC and did not suffer any beatings following hisrelease in 2001. The events in 2001 do not explain why E left Uganda in 2007 or whyhe has a well-founded fear of returning. He claimed to have left Uganda having32 See, for example, Ameir v The Minister of Citizenship and Immigration 2005 FC 876 at [27]; andBenzaba v The Minister of Citizenship and Immigration 2015 FC 812 at [6].participated in the forest demonstration but has since acknowledged that he did nottake part in that demonstration. His current claimed fear centres on the circumstancesof his departure and the YMCA-linked people-smuggling-ring who assisted him. Thejoint report does not advance this claim which emerged long after their consultation inJune 2011.[77] I conclude that the Officer did not err. It is clear that the joint report wasincapable of materially changing the landscape in this case because it related to E'sfalse account and could not assist his current claim. This ground must also fail.Fourth ground — error in rejecting the medical report on the basis of earliercredibility findings?[78] The Officer took into account that E's evidence as to how the injuries aroseand why they were inflicted was rejected by the Tribunal as not credible. The Officeralso referred to Venning J's conclusion that it "cannot be seriously argued that theTribunal acted unreasonably in rejecting [E's] evidence as not credible".33[79] Ms Coumbe submits that it was a "clear error" for the Officer to rely on thesenegative credibility findings to disregard the joint report. She argues that this was a"back to front" approach because the joint report was capable of filling "any deficit ofevidence" that led to the adverse credibility findings and may provide independentsupport for E's claim, notwithstanding those adverse credibility findings. Ms Coumbereferred to Martineau J's remarks in Benzaba v The Minister of Citizenship andImmigration:34The [Refugee Protection Division] essentially performed its analysisbackwards: instead of using the medical reports to assess the applicant'scredibility, the RPD drew conclusions about credibility and then used thoseconclusions to reject the reports.[80] I am not persuaded that the Officer erred in relying on the negative credibilityfindings as one of his reasons for concluding that it was appropriate to exercise his33 D v Immigration & Protection Tribunal, above n 20, at [35].34 Benzaba v The Minister of Citizenship and Immigration, above n 32, at [8].power under s 140(3) to refuse to consider the current claim. This was expresslypermitted under s 141(2) and appropriate in this case.[81] Section 141(2) provides that a claimant is not entitled to challenge on asubsequent claim any finding of credibility or fact made by a refugee and protectionofficer or the Tribunal, and that a refugee and protection officer determining anysubsequent claim may rely on those findings:141 Procedure on subsequent claims(2) In a subsequent claim, a claimant may not challenge any finding ofcredibility or fact made by a refugee and protection officer (or by arefugee status officer under the former Act) or the Tribunal (or by theRefugee Status Appeals Authority under the former Act) in relation toa previous claim by the claimant, and the refugee and protectionofficer determining the subsequent claim may rely on those findings.[82] This provision is consistent with the statutory scheme which does not restrictthe provision of information and evidence during the initial determination process upto the time of decision and at the hearing of any appeal where there is no restrictionon facts being revisited. However, once appeal rights have been exhausted, s 140operates as a statutory form of res judicata or issue estoppel. Section 141 works inconcert with s 140 by preventing claimants from re-litigating in subsequent claimsconclusive findings of credibility or fact made in the final determination of an earlierclaim by an officer or the Tribunal.Fifth ground — failing to take other relevant material into account?Facebook material[83] When E submitted his current claim, he copied material from his Facebookaccount to demonstrate that he had been protesting on the internet against the Ugandangovernment. Ms Coumbe acknowledges that it is difficult to assess the material fromthe hardcopies provided but she submits that the Officer erred by not taking it intoaccount.[84] The Tribunal investigated E's claim that the political commentary he had beenposting on the internet since coming to New Zealand might create difficulties for him.The Tribunal accepted that E had commented on publicly available websites onvarious matters ranging from Ugandan domestic affairs to broader pan-Africanissues.35 It also accepted that in some of these postings E had made comments stronglycritical of the Ugandan government and called for popular uprising. Nevertheless theTribunal found, based on country information, that there was no credible evidence tobelieve that E's expression of opinion over the internet would have come to theattention of the Ugandan authorities or would create any difficulties for him if he wereto return to Uganda.36[85] E is not able to challenge this finding of credibility and fact. The Officer wasentitled to rely on these findings by the Tribunal in declining to consider E'ssubsequent claim which impermissibly sought to reopen this issue. There is no reasonto suppose that the Officer overlooked the Facebook material which formed part ofE's application and was referred to in counsel's submissions. However, even if he had,the error would not have been material.E's brother's statutory declaration[86] Ms Coumbe next submits that the Officer failed to consider a declarationprovided by E's brother. This attached copies of three newspaper articles ostensiblypublished in May 2008, July 2008 and June 2014. The first of these articles is headed"Mabira Rioter Flees Uganda" and commences by stating that a "man believed to havebeen at the centre of last year's infamous Mabira demonstration has fled the country".One of the obvious problems with this article is that E admitted in the course ofpresenting his "second story" to the Authority in December 2008 that his previousclaim that he participated in the Mabira demonstration was untrue.[87] The second article is headed "Besigye Agent Flees Country" and includes apicture of E. It states that E was a "former campaign agent to the opposition leader"and suffered "much harassment from the state". However, this simply repeats his35 Re [E], above n 15, at [65].36 At [95].previously rejected claim. E himself confessed to the Authority in February 2009 thathe had never been a campaign agent, contrary to his earlier claim, and that this too waspart of the false story he had been urged by his brothers to stick to, adjusting dates asnecessary. The suggestion in the article that E was a campaign agent has now beencontradicted by E himself.[88] The Authority addressed these two articles in its July 2009 decision. It rejectedas "fanciful" E's claim that an FDC officer arranged for both articles to be publishedas a favour to E and as an act of remorse for having failed to recall E's claimedinvolvement in the 2006 presidential election.37[89] The third item purports to be a classified advertisement published in a Ugandannewspaper in June 2014 headed "Uganda Police Force: Police Appeal" with aphotograph of E and his name printed underneath. It states:[E] whose photograph appears above is wanted by Police for offence vidsCRB 81/2011 of CPS Kampala.Police, therefore, appeals to whoever has any information which may lead tohis arrest and prosecution to pass it on in confidence to the nearest PoliceStation or ring telephone numbers [90] Given that the other two articles appended to E's brother's statutory declarationare manifestly fraudulent, the prospect that this classified advertisement is genuineseems highly remote. This is particularly so when E has admitted producing falsedocuments in support of his various claims and had previously been urged by hisbrothers to stick to his false account but change the dates to suit.[91] I am not persuaded that the Officer overlooked E's brother's statutorydeclaration or these articles that were attached to it. In any event the statutorydeclaration could not have affected the outcome. In the circumstances it was clearlyan abuse of process to seek to have these admittedly false claims reconsidered.Result[92] The application for judicial review is dismissed.37 Refugee Appeal No 76216, above n 2, at [69].[93] There is no issue as to costs.________________________M A Gilbert J