E v MBIE [2016] NZHC 2599

E v MBIE [2016] NZHC 2599 [31 October 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-001819[2016] NZHC 2599BETWEEN EApplicantAND MINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTRespondentHearing: 21 June 2016Appearances: G Coumbe QC as Amicus Curiae to the CourtM Coleman and M F Clark for the RespondentJudgment: 31 October 2016JUDGMENT OF HINTON JThis judgment was delivered by me on 31 October 2016 at 5.15 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:Gillian Coumbe QC, AucklandMartha Coleman, Barrister, WellingtonCrown Law Office, Wellington[1] E is a citizen of Uganda. He came to New Zealand in 2007. He has been seeking refugee status since then.[2] The sole issue in this hearing is whether E should be allowed to commence a review proceeding out of time. Under s 247(1) of the Immigration Act 2009 (the Act), the Court may grant an extension if it considers there are "special circumstances".[3] As Ms Coumbe QC put it, a striking feature of this case is that there is now before the Court a combined medical report by two experts with internationally- acknowledged expertise in assessing victims of torture, that has not been considered by any decision-maker. The report, by Professor Sebnem Fincanci and ProfessorThomas Wenzel (the combined report), concludes that their "physical andpsychological findings" are "highly consistent" with E's allegation of having beentortured.E's earlier claims for refugee status[4] E's first claim for refugee status was made in May 2007, and declined on30 April 2008.[5] E appealed the decision to the former Refugee Status Appeals Authority, which declined the appeal on 28 July 2009. The Authority found E was not a credible witness, noting that he had advanced four different inconsistent accounts in support of his refugee claim. The Authority concluded there was no credible evidence he had a well-founded fear of being persecuted in Uganda and that he was not at that time a refugee.[6] In November 2010, E made a second claim for refugee status, this time including a first claim for protected person status. This was declined on 1 November 2011. E appealed that decision to the Tribunal on 9 November 2011. The hearing was held on 28 August 2012 and 12 June 2013.[7] The Tribunal determined that E was not a credible witness. It placed noweight on any of E's testimony that was not supported or corroborated by independent reliable sources.[8] The Tribunal accepted some of E's evidence (including that the Ugandan authorities were aware of E's application for refugee status/failed application forasylum); his online criticism of the Ugandan authorities, and that he had met with an Australian journalist, who was making a documentary about Uganda. The Tribunal found there was no credible evidence E was at risk of harm because of any activity prior to his departure from Uganda, or that he has become of interest to them since. The Tribunal dismissed the appeal, determining that E was not entitled to be recognised as a refugee under s 129 of the Act, or a protected person under ss 130 and 131 of the Act.[9] In March 2014, E sought leave of this Court for judicial review of theTribunal's decision. He also sought to adduce further evidence, being a psychological report dated 24 August 2012 of Dr Wenzel, that E's PTSD was "highly consistent" with his account of torture. The leave application was dismissed by Venning J on 28 November 2015. He held the issues were not of general or public importance or, for any other reason, issues that ought to be submitted to the High Court for review. He said the issues did not extend beyond E's individual case.He declined to allow Dr Wenzel's report in, saying it relied on E's reporting.E's present claim[10] In July 2014, the combined medical report was finally completed. It was based on an assessment conducted in Auckland in June 2011, the long delay not apparently being due to any fault of E's.[11] E brought a further "subsequent claim" on 19 December 2014, on the samegeneral grounds as his previous claims, namely that he was at risk of persecution if returned to Uganda, due to his political opinion, and that he had posted comments online that were critical of the Ugandan government.[12] The Refugee and Protection Officer's (RPO) decision dated 31 March 2015, included an overview of E's previous claims for refugee and protected person statusin New Zealand, and the appeals to the Authority and Tribunal.[13] The RPO considered the combined medical report of Drs Fincanci and Wenzel, and said this was further evidence in support of a previous claim, which does not constitute a different ground for the purposes of s 140(3). The RPO said that in the absence of credible testimony from E, medical evidence could be given noweight. The RPO reiterated Venning J's statement, which upheld the Tribunal's findings that E's evidence was not credible.[14] For these reasons, the RPO considered E's "subsequent claim" wasmanifestly unfounded or clearly abusive, or repeated a previous claim, in terms of s 140(3) of the Act. Accordingly, the RPO refused to consider the claim.[15] When the RPO declined the claim, it incorrectly advised E that he had a right of appeal to the Tribunal.[16] E filed an appeal with the Tribunal within the allowed timeframe. He was then advised by letter of 26 June 2015, that the Tribunal had no jurisdiction to consider his appeal, as there was no right of appeal in respect of a decision of the RPO to refuse to consider a claim, where the most recent previous claim was declined under the Act.1[17] Nevertheless, E did have a right to bring a judicial review application. That application needed to be brought within the 28-day timeframe provided under s 247 of the Act.[18] It was retrospectively agreed between the parties that, given the RPO'sdelayed correction as to the appeal jurisdiction under s 140(3), time should run from the 26 June 2015 letter, or receipt of it.1 Section 195(1)(b) of the Act provides that appeals are only available if the person's most recent previous claim was declined under part 6A of the former 1987 Act.[19] E did not file his judicial review application until 11 August 2015. This was outside the modified 28-day timeframe. The parties agreed to treat this as a delay of 11-15 days.Are there "special circumstances" justifying an extension of time?[20] Section 247(1) provides the Court with a discretion to grant further time to aprospective applicant, where satisfied there are "special circumstances".[21] The Court of Appeal in Rajan v Minister of Immigration held, unsurprisingly,that the term "special circumstances" requires "circumstances that are uncommon, not commonplace, out of the ordinary, abnormal".2 These circumstances are usually decided by the courts by reference to the length of delay; the reason for the delay; and where appropriate (as in a marginal case), a brief examination of the merits. However, the Court of Appeal fairly pointed out in Rajan, that given the legislature has not limited the factors that may be taken into account, each case should be considered on its own facts and the Court has a discretion.Length of delay[22] In practice, previous decisions have generally treated a delay as long, or very long, where it is similar to, or longer than, the prescribed time period itself.3However, there is no arithmetical precision at play, nor should there be.[23] I agree with Ms Coumbe that, in considering the length of the delay, factors other than the sheer number of days can be relevant.[24] In the present case, as the respondent properly acknowledges, allowance must be made for the fact that the RPO mistakenly informed E that he had a right ofappeal and E then filed an appeal (in time). The Tribunal did not inform E's counselof the mistake until 26 June 2015. If the 28-day time period is treated as running at earliest from 26 June 2015 and allowing for time to receive that letter, the delay is 11-15 days. This was agreed in the course of argument.2 Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24].3 Zanzoul v Removal Review Authority HC Wellington CIV-2007-485-133, 9 July 2009.[25] In terms of other factors relevant to the length of delay, I do not agree with Ms Coumbe that the fact that E has been in New Zealand for over nine years and his immigration status is still not resolved, or that over a year has passed since theRPO's decision on 31 March 2015, is relevant. These are common features of casessuch as this, brought about for any number of reasons, many out of the control of the authorities. If such factors were brought into account to justify delay, the very specific procedure set out in the Act and reinforced by the courts, would be undermined.[26] However, I do consider it relevant that in this particular case, the RPO misinformed E; he filed an appeal within time (which was wasted effort) and it was two-and-a-half months until the mistaken information was corrected.[27] I do not consider the delay here to be long. In fact, I consider it to be relatively short.Reason for delay[28] The main reason for the 11-15 day delay in this case was an acknowledgederror on the part of E's former counsel, Mr Pidgeon. Mr Pidgeon filed an affidavitdated 29 January 2016, where he states:The confusion on my part was my belief that the only way the applicant could proceed was via a judicial review (as s 195 Immigration Act 2009 precluded the appeal to the IPT) and that as it was a general judicial review, it was not covered by the timing strictures in s 249 (the 28-day limit) as it did not relate to an appeal from the ITP, rather a refusal to consider a subsequent claim by the RBS under s 140(3).[29] The respondent submits that any failure by a legal adviser is not a good reason to excuse delay, relying on the Court of Appeal decision in Fernandes v Immigration and Protection Tribunal.4 In Fernandes, the relevant time limit was 20 working days and the delay was 36 working days. Counsel's explanation for thedelay was that he needed to conduct legal research. He had been dealing extensively with INZ and had not even mentioned a possible appeal until about five weeks after expiry of the 20-working day period. The Court of Appeal said that any failure by4 Fernandes v Immigration and Protection Tribunal [2014] NZCA 52.legal advisers "in circumstances such as the present" to take steps to appeal in atimely fashion is not a good reason to excuse delay.5[30] The Court of Appeal in Fernandes were not laying down a rule that counsel error would never excuse delay. They refer to the circumstances of the case, which quite clearly did not provide an acceptable explanation. There are cases where counsel error has been taken into account. For example, in R v Refugee Status Appeals Authority, an admittedly short delay of one day in filing an application for review of the Removal Review Authority's decision, was due to an error incomputation by the plaintiff's counsel. Wylie J accepted this did provide an excuse.6[31] In Isak v Refugee Status Appeals Authority, Asher J held that counsel error in not placing a material letter before the Authority could constitute a ground for the judicial review itself.7 If counsel error can constitute a ground for review, it can be relevant as an excuse for delay, in an appropriate case.[32] I take into account that this is not a situation where there is any remedy against counsel. Some of the features that Asher J referred to in Isak are equally apt here:8 the concept [that lawyers are generally agents for their clients] is notnecessarily apt in the case of a state funded lawyer who is given the task of defending a possible refugee who does not speak English, is not familiar with the New Zealand customs, and if unsuccessful is likely to be immediately removed from New Zealand. Such a person has little ability tochose [sic] counsel, understand counsel's actions, or seek redress at a laterpoint.[33] In the present circumstances, I consider that counsel error goes some way as an explanation. Mr Pidgeon did not in fact even miss a time limit in the first instance, as he filed an appeal in time, which INZ had advised was available. He then has sworn to having mistakenly formed the view that the time limit in s 247 did not apply. In these particular circumstances, it seems unreasonable for E to bepenalised for counsel's mistake.5 At [10].6 R v Refugee Status Appeals Authority [2008] NZAR 655 (HC).7 Isak v Refugee Status Appeals Authority [2010] NZAR 535 (HC).8 At [64].The merits[34] The merits appear to be strong.[35] The decision has been made under s 140(3). No determination was made under s 140(1). It is the merits of the challenge to the s 140(3) decision that must be considered. Even then, only preliminary examination is called for in the present context.9[36] Section 140 of the Act provides:(1) A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied -(a) that there has been a significant change in circumstances material to the claim since the previous claim was determined; and(b) the change in 1 or more of the circumstances was not brought about by the claimant -(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognition under sections 129 to 131.(2) For the purposes of determining the matter in subsection (1), the refugee and protection officer must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor.(3) A refugee and protection officer may refuse to consider a subsequent claim for recognition as a refugee or a protected person if the officer is satisfied that the claim -(a) is manifestly unfounded or clearly abusive; or(b) repeats any claim previously made (including a subsequent claim).[37] The power to decline to consider a claim under s 140(3) should be exercised sparingly; in cases that are obviously meritless and that justify bypassing s 140(1).[38] The key reasons why the Tribunal decided to reject the combined medicalreport were that the report does not constitute "a different ground"; that the report9 Rajan, above n 2.relates to E's most recent account of his mistreatment by the Ugandan authorities, and that E's account has already been found not credible.[39] There are good grounds for arguing that the RPO made reviewable errors in his s 140(3) assessment, including:(a) The RPO erred in dismissing the combined report as "further evidence in support of a previous claim". That language does not reflect the test in s 140(3), which says an RPO may refuse to consider a claim ifit "repeats any claim previously made", which applies to a claim thatis no more than an unmodified re-filing of a previous claim.10 That is not the case here, as the combined medical report is new evidence. I agree with Ellis J in BV, that new evidence, available subsequent tothe Tribunal's decision, may provide the basis for a subsequentclaim.11 (I note that the new report might arguably constitute a"significant change in circumstances" for purposes of s 140(1), giventhat "change in circumstances" is no longer limited to a change "in the applicant's home country", as it was under the 1987 Act, but that issue can await the next stage of this proceeding.)(b) It appears that the RPO assumed that the combined report relies solelyon E's own account. If it did, it would have little, if any, probativevalue in the circumstances of the credibility findings made against E. However, while correct that the report does rely on E's account, it is also based on the two doctors' objective clinical assessments, bothpsychological and physical. It provides expert opinion of the degreeto which E's injuries correlate with his allegations of torture. Thedoctors undertook a three-and-a-half hour clinical examination, including a 70-minute medical examination by Professor Fincanci.She subsequently reviewed all of E's x-rays. Dr Fincanci says scarson the chest "could be related with beatings on the chest in 2006" andobserved knee fractures were "highly consistent" with being beaten10 BV v Immigration and Protection Tribunal [2014] NZHC 283.11 Above n 10, at [40].severely by a solid object, because of the nature of the fractures.Observed toenail deformity was described as "consistent with described squeezing of toes in 2001". Dr Wenzel's diagnosis of post-traumatic stress disorder was based on his own clinicalobservations, as well as E's reported symptoms. For example, thereport records:The client appears calm, but also shows signs of increased psychophysiological activation such as increased neurophysiological activation including sweating, increased startle response, and irritability, during the narrative andexamination in accordance with a PTSD symptom patternrelated to the reported events.Present findings are consistent with possible memory impairment and highly increased PTSD related distress during interviews related to alleged torture, but also tosimilar situational 'triggers' for memories related to reportedevents.The physical findings (consistent with severe beating and toenail removal) and the psychological diagnosis of PTSD, assessed together,were said to be 'highly consistent' with E's allegations of torture. The standard of 'highly consistent' in the Istanbul Protocol has been heldto equate to 'probable': AMN v Refugee Appeals Tribunal.12(c) The RPO erred in relying on the earlier negative credibility findings to simply reject the combined report, instead of considering whether the report may be capable of undermining those findings or casting them in a different light. The RPO adopted a back-to-front approach and relied on the credibility findings to reject the report. I refer here toBelahmar v Canada from the Federal Court in Canada, where Martineau J said:13The RPD essentially performed its analysis backwards:instead of using the medical reports to assess the applicant'scredibility, the RPD drew conclusions about credibility and then used those conclusions to reject the reports.12 AMN v Refugee Appeals Tribunal [2012] 1 EHC 393.13 Belahmar v Canada (2015) FC 812 at [8].In Vijayarajah v Canada, the Board having first found the claimant not credible, then gave little weight to the medical evidence. On review, Tremblay-Lamer J said:14 where there is relevant evidence, that does not emanatefrom the claimant's testimony and that can link the claimantto the persecution, the Board must consider it.The combined report is independent evidence that E may have been tortured and is suffering from PTSD. It may cast doubt on theAuthority's findings. It may explain, at least in some respects, E'sdifficulty in giving consistent and coherent testimony. I do not need to consider what impact the combined medical report might have onE's substantive claim, but the report is evidence that should beproperly considered.(d) The report is "new" in that it post-dates the Tribunal's determination of E's second claim, contains new evidence by independent experts ofhigh international standing in assessing torture injuries, and ismaterial to E's claim. It appears that E could not by exercising reasonable diligence have provided this evidence at an earlier stage and that the delay was not his fault. Both the Tribunal and Venning Jreferred to the unsuccessful efforts of E's former counsel, Ms Curtis,to procure the combined report much earlier.[40] The RPO appears to have committed a reviewable error in rejecting the combined report, instead of properly considering it. This provides potential grounds of review, including error of law and Wednesbury unreasonableness. It is strongly arguable that the stringent s 140(3) test was not met.Conclusion[41] Overall, taking into account my finding that the delay was relatively short, there is some excuse for it and the merits are strong enough to cross the preliminary14 Vijayarajah v Canada (1999) FC 8116 at [18].merits threshold, I conclude there are "special circumstances" and I grant anextension of time under s 247(1) of the Act.-------------------------------------------------Hinton J