YLs (CA174/2017) v REFUGEE AND PROTECTION OFFICER [2017] NZCA 582

YLs (CA174/2017) v REFUGEE AND PROTECTION OFFICER [2017] NZCA 582 [12 December 2017]NOTE: THE CONFIDENTIALITY OF THE NAMES OR IDENTIFYINGPARTICULARS OF THE APPELLANTS AND THEIR CLAIMS ORSTATUSES MUST BE MAINTAINED PURSUANT TO S 151 OF THEIMMIGRATION ACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDCA174/2017[2017] NZCA 582BETWEEN YLs (CA174/2017)AppellantsAND REFUGEE AND PROTECTIONOFFICERRespondentHearing: 23 August 2017Court: Miller, Winkelmann and Clifford JJCounsel: R E Harrison QC and C Curtis for AppellantsK G Stephen and R D Garden for RespondentJudgment: 12 December 2017 at 11 amJUDGMENT OF THE COURTA The appeal is allowed.B The High Court order is set aside.C The decision of the Immigration and Protection Tribunal granting theappellants refugee status is reinstated.D The respondent must pay the appellants costs for a standard appeal on aband A basis and usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Table of ContentsIntroduction [1]Background [4]The YLs' initial claim [4]The YLs' appeal to the Tribunal [8]The RPO's appeal to the High Court [11]The High Court's decision [16]This appeal [19]Background and submissions [19]The legislative scheme [23]Background and purpose [23]Refugee and protection status determinations [27]Appeals [38]Necessary implication? [44]The Refugee Convention [48]Alternative protection [64]Conclusion [68]The Lazarus principle [69]Result [71]Introduction[1] In November 2014, an Refugee and Protection Officer (RPO) declined theYLs' claim for refugee status.[2] The YLs appealed that decision to the Immigration and Protection Tribunal(the Tribunal). In February 2016, the Tribunal allowed that appeal and granted theYLs refugee status.1 With the leave of the High Court,2 the RPO then challenged thatdecision on a point of law. In February 2017, Fogarty J upheld that challenge, andremitted the YLs' claim for refugee status to the Tribunal for reconsideration in lightof his judgment.3[3] The YLs now appeal that judgment to this Court, leave to appeal having beengranted in the High Court by consent.41 YL [2016] NZIPT 800789-92 [Tribunal decision].2 A Refugee and Protection Officer v YL [2016] NZHC 1548.3 A Refugee and Protection Officer v YL [2017] NZHC 113 [High Court decision].4 A Refugee and Protection Officer v YL HC Auckland, CIV-2016-404-536, 21 March 2017.BackgroundThe YLs' initial claim[4] The YLs comprise a mother and three daughters. They arrived in New Zealandin 2014. With them were the family's husband/father and mother/maternalgrandmother.[5] The YLs are citizens of China and practitioners of Falun Gong. Together withthe maternal grandmother, the YLs claimed refugee status based on their fear ofpersecution if they returned to China or Singapore (where they, but not thematernal grandmother, were permanent residents).[6] The father made no claim for refugee status in New Zealand, and returned toSingapore in 2014.[7] The RPO granted the maternal grandmother's claim for refugee status: heaccepted that, as a practitioner of Falun Gong, she had a well-founded fear of beingpersecuted in China. But he declined the YLs' claim. Whilst they may have had awell-founded fear of being persecuted in China, the same could not be said ofSingapore. As permanent residents of Singapore, they therefore already had protectionsomewhere else than New Zealand.The YLs' appeal to the Tribunal[8] The YLs appealed to the Tribunal. After the Tribunal had heard the YLs'appeal, but before a decision had been issued, the YLs renounced their status aspermanent residents of Singapore. They advised the Tribunal of that fact.The Tribunal then decided the appeal on the basis that protection was no longeravailable to the YLs in Singapore and hence solely by reference to their predicamentif they were to return to China.[9] In line with previous decisions,5 the Tribunal concluded that there was asubstantive basis for finding that if either the mother or the eldest daughter were to5 AK (China) [2012] NZIPT 800202; and BO (China) [2015] NZIPT 800533-535.return to China, as members of Falun Gong they would come to the attention of thelocal authorities.6 There was a real chance they would be detained, questioned andthat while detained they would be subjected to cruel, inhuman or degrading treatment,punishment or torture which constituted serious harm amounting to persecution.7Those circumstances meant that the middle and youngest daughters would also cometo the attention of the Chinese authorities.8[10] The YLs were accordingly recognised as refugees.The RPO's appeal to the High Court[11] In reaching its decision, the Tribunal had observed:Credibility[40] There are aspects of the [YLs'] evidence that the Tribunal did not findcredible. In particular, their claim not to have permanent resident status inSingapore was disingenuous and contradicted by clear evidence to thecontrary. Likewise, the Tribunal does not accept that if returned to Singaporethe mother and the older daughter would, as they claimed, protest in Singaporein such a manner as to bring them into conflict with Singaporean authorities.However, in light of subsequent evidence relating to the relinquishing of theirresident status, such matters are no longer relevant to the assessment of theirappeals.[12] Implicit in that observation is the issue which is the focus of this appeal. Whena claim for refugee status is made, s 134 of the Immigration Act 2009 (the Act)requires an RPO to first determine whether to accept that claim for consideration. Asrelevant, s 134(1) provides:(1) In determining whether to accept a claim for consideration, a refugeeand protection officer may take into account whether,—(c) 1 or more of the circumstances relating to the claim werebrought about by the claimant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognition undersection 129.6 Tribunal decision, above n 1, at [61].7 At [61].8 At [62].[13] Section 134(3) then provides:(3) A refugee and protection officer must decline to accept forconsideration a claim for recognition as a refugee if the officer issatisfied that 1 or more of the circumstances relating to the claim werebrought about by the claimant—(a) acting otherwise than in good faith; and(b) for a purpose of creating grounds for recognition undersection 129.[14] The YLs' claims had already been accepted for consideration by an RPO whenthe Tribunal considered the YLs' appeal. The Tribunal therefore proceeded on thebasis that no further "good faith" inquiry was required into the YLs surrender of theirpermanent resident status in Singapore. In doing so, the Tribunal would appear tohave followed one of its earlier decisions, DY (Fiji).9 In DY (Fiji), the Tribunalcharacterised the good faith inquiry as a threshold issue. Accordingly, on appeal fromthe substantive decision of an RPO on an accepted claim, the Tribunal did not havejurisdiction to inquire into the good faith or otherwise of the applicant as a stand-aloneconsideration.10 Good faith could, however, go to the Tribunal's assessment of anapplicant's credibility.[15] The RPO considered the failure of the Tribunal to consider the good faith ofthe YLs surrender of their Singaporean residency was an error of law. He sought andwas granted leave to appeal to the High Court on the following question:Whether, in deciding to grant refugee status to the [YLs], the [Tribunal] failedto take into account a mandatory relevant consideration and materiallymisdirected itself by failing to consider whether any or all of the [YLs] actedotherwise than in good faith or acted in bad faith in unilaterally renouncingtheir Singapore residence status prior to the [Tribunal's] determination to grantthem refugee status in New Zealand.9 DY (Fiji) [2014] NZIPT 800375-380, 800419. The Tribunal followed DY (Fiji) in CH China[2016] NZIPT 80081, heard and decided after the RPO had been granted leave to appeal theTribunal's decision but before that appeal had been heard or determined.10 DY (Fiji), above n 9, at [96].The High Court's decision[16] Shortly after he heard the appeal, Fogarty J released a minute to the parties.That minute read:11[1] I am in the process of drafting my judgment in relation to thisproceeding.[2] I am currently minded to find that good faith is expressed as athreshold issue only in the Immigration Act 2009. This is for the reason thatthe text of the statute includes the term "good faith" in three specificprovisions that are limited to the refugee and protection officer's decisionwhether or not to consider a claim to refugee status.[3] However, on reflection, it seems to me that a principle of commonlaw, independent of the Immigration Act, might be of assistance to resolvingthe question of law in dispute. The principle of law is that articulated by LordDenning in Lazarus Estates Ltd v Beasley:No judgment of a court, no order of a Minister, can be allowed tostand if it has been obtained by fraud. Fraud unravels everything.[4] I am minded to the view that conduct demonstrating lack of good faithis always relevant to the exercise of a statutory discretion. There is no needfor each statute to state the same. The reason for three specific provisions inthe Immigration Act addressing the matter of good faith is in order to imposea severe statutory policy of declining a claimant's application where theclaimant is acting otherwise than in good faith. Absent the enactment of sucha specific provision, the decision maker has a discretion as to the consequenceof lack of good faith during the process, in any statute, including theImmigration Act.[17] The Judge sought and received written submissions. The RPO supported theapproach the Judge anticipated in his minute. The YLs argued to the contrary, pointingto the statutory scheme the Judge had already referred to.[18] The Judge released his judgment on 9 February 2017. As his minute hadanticipated, he reached the conclusion that the statutory consideration of good faithwas, in the Act, expressed as a threshold issue only.12 He then discussed the principlein Lazarus Estates Ltd v Beasley.13 In reliance on that decision, and a11 A Refugee and Protection Officer v YL HC Auckland CIV-2016-404-536, 1 November 2016(footnotes omitted).12 High Court decision, above n 3, at [27].13 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (CA).number of subsequent United Kingdom authorities,14 the Judge confirmed hispreliminary view that the principle of "fraud unravels everything" applied to theconduct of the YLs in renouncing their Singaporean permanent resident status.15 Thepossibility of their having acted otherwise than in good faith was therefore one which,in the circumstances, the Tribunal was required to consider. It had not.16 Accordingly,the appeal was allowed, and the decision remitted to the Tribunal for reconsideration.17This appealBackground and submissions[19] Given Fogarty J agreed with the Tribunal that statutory consideration of goodfaith was a threshold issue only, the YLs did not seek to challenge that part of hisdecision. They instead sought leave on the question of "whether the Tribunal erred inlaw in failing to investigate and determine whether they had acted otherwise than ingood faith in order to obtain refugee status". Leave was granted by consent. Althoughthe RPO supported Fogarty J's conclusion, the submission remained that the schemeof pt 5 of the Act mandates the consideration of good faith by the Tribunal,characterising Fogarty J's judgment as being consistent with that approach. Thosediffering perspectives were reflected in the way the parties presented what they termedwere the agreed issues to be determined on this appeal. Those issues were:(a) Whether, in deciding to grant refugee status to the YLs, the Tribunalwas required to take into account as a mandatory relevant considerationwhether any or all of the YLs acted otherwise than in good faith or actedin bad faith?(b) If so, whether, in deciding to grant refugee status to the YLs,the Tribunal erred in law by failing to consider whether any or all of theYLs acted otherwise than in good faith or acted in bad faith?14 R v Secretary of State for the Home Department, ex parte Hussain [1978] 1 WLR 700 (CA); R vSecretary of State for the Home Department, ex parte Choudhary [1978] 1 WLR 1177 (CA); andZamir v Secretary of State for the Home Department [1980] AC 930 (HL).15 High Court decision, above n 3, at [40].16 At [41].17 At [44].(c) If so, whether the YLs' refugee and protected person status appealsshould be remitted to the Tribunal in accordance with the directionsgiven by the High Court or otherwise.[20] In summary, the YLs say that good faith is a threshold issue only. Fogarty Jwas right to so conclude. The Judge, however, erred when he imported the Lazarusprinciple into the realm of New Zealand's international obligations (the performanceof which the Act provides for as a matter of domestic law). The question of good faithonly arises where the Act expressly so provides.[21] The RPO acknowledges that the good faith test is a derogation fromNew Zealand's international obligations. However, he submits Parliament, bynecessary implication, intended consideration of an absence of good faith to bemandatory. The circumstances of the YLs clearly demonstrated an absence of goodfaith; hence, the Tribunal had erred in its decision and Fogarty J was correct to remitthe matter to the Tribunal for further consideration.[22] The principal question we must answer is whether, under the scheme ofthe Act, good faith was a mandatory consideration for the Tribunal when it determinedthe YLs' appeal. This raises an issue of statutory interpretation. The well-knownprinciples apply.18The legislative schemeBackground and purpose[23] The explanatory note to the Bill that became the Act records:19Significant global changes have taken place since the Immigration Act 1987(the 1987 Act) was enacted. There are greater flows of people around theworld and greater global competition for skills, talent, and labour, especiallygiven ageing population demographics and skill shortages in manyOrganisation for Economic Co-operation and Development (OECD)18 We are to construe the relevant provisions, here principally found in pt 5 of the Act, in light of theplain meaning of the words used as understood in the context of the scheme and purpose of theAct as a whole, guided by the Act's legislative history. We are to check any interpretation wereach based on plain meaning for consistency with that scheme and purpose. Case law andacademic commentary can inform that analysis.19 Immigration Bill 2007 (132-1) (explanatory note).countries. There are heightened risks and pressures on the border.New Zealand needs to recognise these changes, and to adapt the immigrationsystem to ensure the best outcomes for this country.This reform modernises and simplifies the immigration system. It will giveNew Zealand a more robust and accountable system. It will also ensurecompliance with New Zealand's immigration-related international obligationsin a more transparent way.[24] As enacted, those general intentions are reflected in s 3 of the Act. Section 3has two parts. Subsection (1) sets out the overriding purpose of the Act: "to manageimmigration in a way that balances the national interest, as determined by the Crown,and the rights of individuals".[25] Subsection (2) provides an overview of the operative parts of the Act. Asrelevant, it provides:(2) To achieve this purpose, the Act establishes an immigration systemthat—(d) provides a process for implementing specifiedimmigration-related obligations; and[26] That process is found in pt 5 of the Act.Refugee and protection status determinations[27] Part 5 begins with its own purpose statement:124 Purpose of PartThe purpose of this Part is to provide a statutory basis for the systemby which New Zealand—(a) determines to whom it has obligations under the UnitedNations Convention Relating to the Status of Refugees andthe Protocol Relating to the Status of Refugees; and(b) codifies certain obligations, and determines to whom it hasthese obligations, under—(i) the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment:(ii) the International Covenant on Civil and PoliticalRights.[28] Those international law documents are defined in s 4 of the Act as theRefugee Convention, the Convention against Torture and the Covenant on Civil andPolitical Rights. We refer to them individually by those titles. We refer to themtogether as the Conventions and the Covenant.[29] Part 5 is a carefully drafted and complex scheme. Section 125 first establishesthe domestic law basis for that scheme:125 Refugee or protection status to be determined under this Act(1) Every person who seeks recognition as a refugee in New Zealandunder the Refugee Convention must have that claim determined inaccordance with this Act.(2) Every person who seeks recognition as a protected person inNew Zealand must have that claim determined in accordance with thisAct.(3) Every question as to whether a person should continue to berecognised as a refugee in New Zealand or as a protected person inNew Zealand must be determined in accordance with this Act.(4) Nothing in subsection (1) affects section 126.[30] In summary, an RPO must first decide whether or not to consider a claim forrecognition. That initial decision may be appealed to the Tribunal.20 If an RPO acceptsthe claim, or the Tribunal does so on appeal, that claim must be considered. Thedecision by an RPO on a substantive claim is also appealable to the Tribunal.21 Part 5also provides provisions whereby refugee or protected person status may cease, bewithdrawn or be cancelled.22 Where an RPO makes any such decision, rights of appealto the Tribunal apply.23 Decisions of the Tribunal on such matters may be appealedon a point of law to the courts (as here), or judicially reviewed.20 Immigration Act 2009, s 194(1)(a).21 Section 194(1)(c).22 Section 145.23 Section 194(1)(e).[31] More specifically, and relevant here, ss 129–131 provide the domestic lawbasis upon which such claims are to be recognised. They do so by reference to theterms of the relevant Convention or Covenant:129 Recognition as refugee(1) A person must be recognised as a refugee in accordance with this Actif he or she is a refugee within the meaning of the RefugeeConvention.130 Recognition as protected person under Convention AgainstTorture(1) A person must be recognised as a protected person in New Zealandunder the Convention Against Torture if there are substantial groundsfor believing that he or she would be in danger of being subjected totorture if deported from New Zealand.(5) In this section, torture has the same meaning as in the ConventionAgainst Torture.131 Recognition as protected person under Covenant on Civil andPolitical Rights(1) A person must be recognised as a protected person in New Zealandunder the Covenant on Civil and Political Rights if there aresubstantial grounds for believing that he or she would be in danger ofbeing subjected to arbitrary deprivation of life or cruel treatment ifdeported from New Zealand.(5) For the purposes of this section,—(a) treatment inherent in or incidental to lawful sanctions is notto be treated as arbitrary deprivation of life or cruel treatment,unless the sanctions are imposed in disregard of acceptedinternational standards:(b) the impact on the person of the inability of a country toprovide health or medical care, or health or medical care of aparticular type or quality, is not to be treated as arbitrarydeprivation of life or cruel treatment.(6) In this section, cruel treatment means cruel, inhuman, or degradingtreatment or punishment.[32] Section 127 further emphasises the importance of the Refugee Convention:127 Context for decision making(1) Every claim under this Part must be determined by a refugee andprotection officer.(2) In carrying out his or her functions under this Act, a refugee andprotection officer must act—(a) in accordance with this Act; and(b) to the extent that a matter relating to a refugee or a personclaiming recognition as a refugee is not dealt with in this Act,in a way that is consistent with New Zealand's obligationsunder the Refugee Convention.(3) The text of the Refugee Convention is set out in Schedule 1.[33] That general scheme is, as regards the centrality of the terms of theConventions and the Covenant to the determination of claims for refugee and protectedpersons status, similar to that which prevailed under the previous legislativeframework, the Immigration Act 1987 (the 1987 Act). There is an importantqualification to that observation. Section 129D(1) of the 1987 Act provided:In carrying out their functions under this Part, refugee status officers and theRefugee Status Appeals Authority are to act in a manner that is consistent withNew Zealand's obligations under the Refugee Convention.In contrast, and has been observed,24 s 127 appears to create a hierarchy requiringdecisions to be made by reference to the Act in the first place, and then only if a matteris not explicitly dealt with in the Act, by reference to the Refugee Convention. Theissue raised in this appeal relates to how that hierarchy operates as regards the issue ofgood faith when the Tribunal is making its substantive decision under pt 5.[34] A discretion or a requirement to consider whether an absence of good faithexists is now provided for at two points in pt 5:(a) As already noted, under s 134(1) an RPO considering whether to accepta claim for recognition may consider whether "one or more of thecircumstances relating to the claim were brought about by the applicant24 Johanna Commins "Good Faith in the Immigration Act" [2011] NZLJ 103 at 105.acting otherwise than in good faith and for a purpose of creatinggrounds for recognition under s 129". If an RPO finds suchcircumstances exist, they must decline to accept that claim forconsideration.25(b) Under s 140(1) an RPO must not consider a subsequent claim26 unlesssatisfied that there has been a material change in circumstances sincethe (initial) claim was finally determined, and that change incircumstances has not been brought about by the complainant acting"otherwise than in good faith".[35] Once a claim has been accepted for consideration, ss 136–138 provide how anRPO is to determine that claim. An RPO may seek information from any sourcefurther to that provided by the applicant, but is not required to do so. An RPO mustdetermine the matters set out in s 137:137 Matters to be determined by refugee and protection officer(1) For each claim accepted for consideration, a refugee and protectionofficer must determine, in the following order:(a) whether to recognise the claimant as a refugee on the groundset out in section 129; and(b) whether to recognise the claimant as a protected person on theground set out in section 130; and(c) whether to recognise the claimant as a protected person on theground set out in section 131.(2) For each claim accepted for consideration, a refugee and protectionofficer must also determine, as part of the process in respect of adetermination under subsection 1(b) or (c), whether there are seriousreasons for considering that the claimant has—(a) committed a crime against peace, a war crime, or a crimeagainst humanity, as defined in the international instrumentsdrawn up to make provision in respect of such crimes; or(b) committed a serious non-political crime outside New Zealandbefore entering New Zealand; or25 Immigration Act, s 134(1)(3).26 The Immigration Act distinguishes between claims and subsequent claims. Subsequent claims areclaims made under pt 5 by a person who has previously made a claim under pt 5 of the ImmigrationAct that has been finally determined.(c) been guilty of acts contrary to the purposes and principles ofthe United Nations.(3) To avoid doubt, a determination made under subsection (2)—(a) must not be used as grounds to refuse a claim by the personconcerned for recognition as a protected person; and(b) is relevant only if the person is recognised as a protectedperson; and(c) if answered in the affirmative, requires the Minister todetermine the immigration status of the protected person inaccordance with section 139.(4) For each claim accepted for consideration, a refugee and protectionofficer must also determine whether the claimant has the protection ofanother country or has been recognised as a refugee by anothercountry and can be received back and protected there without risk ofbeing returned to a country where he or she would be at risk ofcircumstances that would give rise to grounds for his or herrecognition as a refugee or a protected person in New Zealand.(5) To avoid doubt, a refugee and protection officer—(a) in determining the matters specified in this section, may makefindings of credibility or fact:(b) must determine all the matters described in subsections (1),(2), and (4), regardless of whether the claim was made onlyon 1 or 2 of the 3 grounds set out in sections 129 to 131.[36] Section 138 again takes the process and the decision-maker to the Conventionsand the Covenant:138 Decision on claim(1) A refugee and protection officer must recognise a person as—(a) a refugee if satisfied that the grounds for recognition insection 129 have been met:(b) a protected person if satisfied that the grounds for recognitionin section 130 or 131 (or both) have been met.[37] As can be seen, there is no reference to the good faith or otherwise of theapplicant in those provisions. Nor is the question of good faith mentioned further inpt 5.Appeals[38] Part 7 of the Act contains comprehensive appeal and review mechanisms.Sections 193–200 provide for appeals against decisions relating to refugee orprotection status.[39] Sections 194(1)(b) and 195(1)(a) provide, respectively, for appeals againstdecisions of an RPO declining to accept for consideration a claim or a subsequentclaim.[40] In the case of such a decision on a claim, s 197 provides:197 Determination of appeal against decision declining to accept forconsideration certain claims for recognition as refugee(1) Where an appeal is brought under section 194(1)(b), the Tribunalmust—(a) determine the matter de novo; and(b) determine whether 1 or more of the circumstances relating tothe claim were brought about by the claimant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognitionunder section 129.(2) For the purposes of determining the matter in subsection (1),the Tribunal must not treat the actions of any other person in relationto the claim or the claimant as a mitigating factor.(3) The Tribunal may dismiss or allow the appeal.(4) If the Tribunal allows the appeal,—(a) it must refer the claim back to a refugee and protection officerfor consideration; and[41] In the case of such a decision on a subsequent claim, s 200 provides:200 Determination of appeal against refusal or declining ofsubsequent claim for recognition as refugee or protected person(1) Where an appeal is brought under section 195(1)(a), the Tribunal mustfirst consider—(a) whether there has been a significant change in circumstancesmaterial to the appellant's claim since the previous claim wasdetermined; and(b) if so, whether the change in 1 or more of the circumstanceswas brought about by the appellant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognitionunder any of sections 129 to 131.(2) The Tribunal must dismiss the appeal if it determines that—(a) there is no significant change in circumstances; or(b) the change in 1 or more of the circumstances was broughtabout by the appellant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognitionunder any of sections 129 to 131.(3) The Tribunal must consider the claim for recognition in accordancewith section 198(1) if it—(a) determines that there is a significant change in circumstances;and(b) does not determine that the change in 1 or more of thecircumstances was brought about by the appellant—(i) acting otherwise than in good faith; and(ii) for a purpose of creating grounds for recognitionunder any of sections 129 to 131.[42] The way the Act provides for appeals against an RPO's substantive decisionson claims and subsequent claims for refugee status reflects the Act's scheme for themaking of those decisions in the first place. As relevant here:(a) By s 193(1) the Tribunal must determine those appeals "in accordancewith the Act". To the extent that an issue is not dealt with in the Act,the Tribunal must act in a way that is consistent with New Zealand'sobligations under the Refugee Convention.(b) By s 198(1) the Tribunal is directed on appeal to determine a claimde novo and by reference to the terms of the relevant Convention orCovenant:(1) Where an appeal is brought under section 194(1)(c), (d), or(e), the Tribunal must—(a) determine the matter de novo; and(b) determine, in the following order:(i) whether to recognise the person as a refugeeon the ground set out in section 129; and(ii) whether to recognise the person as a protectedperson on the ground set out in section 130;and(iii) whether to recognise the person as a protectedperson on the ground set out in section 131;and(3) The Tribunal may dismiss or allow the appeal, but may notrefer the claim back to a refugee and protection officer forreconsideration.(c) Under s 200, as has already been seen, the Tribunal on appeal is alsorequired to determine a subsequent claim de novo, both where theappeal challenges an RPO's decision not to accept a subsequent claimfor consideration and where, having considered a subsequent claim, anRPO refuses that claim. In the latter circumstances:(i) Section 195(2) creates the right of appeal:(2) A person may appeal to the Tribunal against adecision by a refugee and protection officer to declinea subsequent claim by the person to be recognisedunder any of sections 129, 130, and 131 as a refugeeor a protected person (whether or not the refugee andprotection officer recognised the person as a refugeeor a protected person under the grounds set out inanother of those sections, or both of those othersections).(ii) Section 200(7) requires the Tribunal to determine that claimunder s 198(1) (that is, on a de novo basis and by reference tothe relevant Convention or Covenant).[43] As can be seen, where an appeal is against an RPO's refusal of a claim or asubsequent claim which has been accepted for consideration, there is no reference tothe Tribunal having a discretion, or being required, to consider the good faith issue.Rather, it is only where the Tribunal on appeal is considering a decision of an RPO todecline to accept a claim or a subsequent claim for consideration, that the Tribunal isrequired to consider that issue.Necessary implication?[44] The RPO's argument was it was a necessary implication that Parliamentintended good faith to be a mandatory consideration on all appeals.27 The principaljustification for that conclusion was, the RPO argued, the scheme of the Act as awhole. Matters do not have to be explicit in statute for them to be mandatoryconsiderations. What is required is to determine the legislature's intention from thescheme and purpose of the legislation. The more obviously important theconsideration, the readier a court will be to find that Parliament must have meant it tobe taken into account.28[45] Here, the purpose of the Act (to manage immigration in a way that balancedthe national interest and the rights of individuals), the statutory place of good faith inthe scheme of the Act, and the Tribunal's de novo jurisdiction in relation to appealsagainst decisions declining refugee status, all supported that proposition. Having setout a good faith requirement as a necessary pre-condition to obtaining refugee status,there was, the RPO submitted, no logical reason why Parliament would have electedto prevent the Tribunal from considering good faith on appeal.27 In DY (Fiji), the RPO's argument was that the Tribunal had an implied power to consider the goodfaith question on appeal. Here the RPO takes this one step further: it is no longer his argumentthat there is an implied power, but rather that by necessary implication good faith is, on appealsgenerally, a mandatory consideration. It is also to be noted that the RPO did not appeal the decisionin DY (Fiji). Nor, in this appeal, did the RPO explicitly challenge, or indeed refer in any detail to,the Tribunal's reasoning in DY (Fiji).28 Citing CREEDNZ Inc v Governor General [1981] 1 NZLR 172 (CA) 183; and Attorney-Generalv New Zealand Māori Council [1991] 2 NZLR 129 (CA) at 140.[46] We acknowledge the general proposition that, in strong cases, a court mayconclude as a matter of necessary implication that Parliament's intention wasotherwise than as expressly provided.29[47] We are satisfied, however, that there is no room for necessary implication here.We reach that conclusion on the basis of the following considerations.The Refugee Convention[48] First and foremost is the way the Act expressly provides for the Tribunal todetermine appeals. The key section is s 193. As is the case with determinations of anRPO, there is a hierarchy by reference to which the Tribunal is to make itsdetermination. The Tribunal is first directed to determine the appeal in accordancewith the Act. To the extent that an issue is not dealt with in the Act, however,the Tribunal must act in a way that is consistent with New Zealand's obligations underthe Refugee Convention.[49] Here, the Act does not expressly provide for good faith to be considered oncea claim is accepted for consideration. The Tribunal, then, is to act in accordance withthe Refugee Convention as regards the relevance of good faith in that situation. Thereis no room for a necessary implication that good faith is to be dealt with otherwise.[50] The Refugee Convention does not make the good faith or otherwise of anapplicant a relevant consideration. The Refugee Convention can be seen as treatyexpression of the right recognised in art 14(1) of the Universal Declaration of HumanRights 1948, which provides: "everyone has the right to seek and to enjoy in othercountries asylum from persecution".[51] The Refugee Convention itself, therefore, is of an avowedly humanitariancharacter. Central to that character is the prohibition on refoulement. Article 33(1)provides:No contracting state shall expel or return ("refouler") a refugee in any mannerwhatsoever to the frontier of territories where his life or freedom would be29 RI Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015)at 319–329.threatened on account of his race, religion, nationality, membership of aparticular social group or particular opinion.[52] As observed in Refugee Protection in International Law:30 [W]ithin the scheme of the [Refugee Convention], the prohibition onrefoulement in art 33 holds a special place. This is evident in particular fromart 42(1) of the [Refugee Convention] which precludes reservations inter aliato art 33.[53] The prohibition on refoulement in art 33 is therefore a non-derogableobligation under the Refugee Convention. It embodies the humanitarian essence ofthe Refugee Convention. Moreover, non-refoulement is not limited to those formallyrecognised as refugees. The Refugee Convention does not define a refugee as being aperson who has been recognised as having a well-founded fear of persecution. Itsimply provides that the term shall apply to any person who "owing to a well-foundedfear of being persecuted" are outside their country of origin. That is, a person whosatisfies the conditions of art 1A(2) is a refugee regardless of whether he or she hasbeen formally recognised as such pursuant to a municipal law process.[54] That matter has been addressed authoritatively by the United Nations HighCommissioner for Refugees in the Handbook on Procedures and Criteria forDetermining Refugee Status as follows:31A person is a refugee within the meaning of the [Refugee Convention] as soonas he fulfils the criteria contained in the definition. This would necessarilyoccur prior to the time at which his refugee status is formally determined.Recognition of his refugee status does not therefore make him a refugee butdeclares him to be one. He does not become a refugee because of recognition,but is recognised because he is a refugee.[55] Accordingly, the generally accepted proposition is that good faith, or moreaccurately perhaps an absence of good faith, is not a requirement for recognition as arefugee. Penelope Mathew has written:3230 Elihu Lauterpacht and Daniel Bethlehem "The Scope and Content of the Principle ofNon-Refoulment" in Erika Feller, Volker Türk and Frances Nicholson (eds) Refugee Protection inInternational Law (Cambridge University Press, Cambridge, 2003) 89 at 107.31 United Nations High Commissioner for Refugees Handbook on Procedures and Criteria forDetermining Refugee Status HP/1P/4/Eng/REV.3 (1992).32 Penelope Mathew "Limiting Good Faith: 'Bootstrapping' Asylum Seekers and Exclusion fromRefugee Protection" (2010) 29 Australian Year Book of International Law 135 (footnotes omitted).Good faith is an important principle in international law. It underpins theobservance of treaties, and their interpretation. Good faith also has a roleoutside treaty law — for example, equitable principles such as the doctrine ofclean hands may be considered general principles of international law.However, as international law generally binds states rather than non-stateactors, the principle of good faith usually does not apply to individuals, evenwhen international law recognises individual rights. It would be worrying if"inalienable" human rights were dependent on the absence of wrong-doing.Individuals may be punished under the criminal law and deprived of certainrights in order to protect others — indeed, international law still tolerates thedeath penalty. However, human rights do no depend on a person having cleanhands.[56] Notwithstanding, and in a decision that attracted a degree of adverse comment,the Refugee Status Appeals Authority in Refugee Appeal No 2254/94, Re HBexpressed the view that, in the case of refugees sur place,33 those who had acted in badfaith (that is, those who, having no well-founded fear of persecution, deliberatelycreated circumstances exclusively for the purpose of subsequently justifying a claimfor refugee status) may thereby not be granted that status.34 That conclusion was notnecessary for the Authority's decision declining the relevant applicant refugee status:that decision was founded on the Authority's findings of fact that the central core ofthe applicant's case was entirely unsupported by evidence.35 In expressing thatopinion, and with reference to a range of international jurisprudence and academicopinion, the Authority concluded that a person:36 who, not being at risk of fundamental marginalisation ordisenfranchisement in the country of origin, wilfully creates a set ofcircumstances simply as a mean of accessing the benefits of theRefugee Convention cannot be said to be a refugee for the purpose of theRefugee Convention.[57] The Authority went on:37Our decision to interpret the Refugee Convention as requiring, implicitly,good faith on the part of the asylum seeking turns on a value judgment thatthe Refugee Convention was intended to protect only those in genuine needof surrogate international protection and that the system must be protectedfrom those who would seek, in a sur place situation, to deliberately manipulate33 A refugee sur place is a person "who claims to be a refugee as a result of political events in hishome country or because of his own actions that have taken place after his departure from saidcountry": Atle Grahl-Madsen The Status of Refugees in International Law (AW Sijthoff, Leiden,1966) at 94.34 Refugee Appeal No 2254/94, re HB [1995] IJLR 332 at 54.35 At 30.36 At 59.37 At 59.circumstances merely to achieve the advantages which recognition as arefugee confers. The sooner abuses of this kind are detected and eliminated,the longer the integrity of the refugee status determination procedures and theprotection afforded by the Convention will enable the bona fide asylum seekerto escape persecution. Clearly this is the underlying assumption of theConvention.[58] Re HB was decided under the 1987 Act. In two recent, strongly reasoneddecisions (neither of which the RPO appealed), the Tribunal has moved away fromthat interpretation.38 It has done so by rejecting the RPO's necessary implicationargument by reference to:(a) its analysis of the structure of the Act, and the implications thereof (tosimilar effect as the analysis we have set out);(b) academic commentary about good faith under theRefugee Convention;39 and(c) overseas case law.4038 In CH (China), above n 9, the Tribunal considered the issue afresh, given the RPO's indication inthe YL proceedings that he disagreed with the proposition that the statutory provisions relating togood faith were exhaustive.39 See generally James Hathaway and Michelle Foster The Law of Refugee Status (2nd ed,Cambridge University Press, Cambridge, 2014) at 75–90; and Guy Goodwin-Gill and JaneMcAdam The Refugee in International Law (3rd ed, Oxford University Press, Oxford, 2007) at65–67.40 In the United Kingdom, see Danian v Secretary of State for the Home Department [1999] EWCACiv 3000; YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360; TM(Zimbabwe) v Secretary of State for the Home Department [2010] EWCA Civ 916; and KS(Burma) v Secretary of State for the Home Department [2013] EWCA Civ 67. In Canada, seeYang v Canada (Minister of Citizenship and Immigration) 2012 FC 849; Li v Canada (Minister ofCitizenship and Immigration) 2012 FC 998; and Ghasemian v Canada (Minister of Citizenshipand Immigration) 2003 FC 1266. The approach in Australia has changed over time; for a recentdecision, see SZNIL v Minister for Immigration and Citizenship [2010] FMCA 470.[59] The first decision is DY (Fiji).41 As we noted above, in that case the Tribunalfound that, on appeal from the substantive decision on an accepted claim, it did nothave jurisdiction to inquire into the good faith or otherwise of the applicants as astand-alone consideration. While it was clear that Parliament had intended to reduceincentives for people to act otherwise than in good faith, the Act specifically providesfor a mechanism through which the good faith issue must be determined. The secondcase is CH (China).42 There, a differently constituted Tribunal considered the issueafresh in light of Brewer J's judgment granting the RPO leave to appeal to the HighCourt. The Tribunal agreed with the reasoning in DY (Fiji).43 While there used to bea broad good faith requirement, the new statutory scheme introduced in 2009"signalled a clear departure from such a broad application of a good faith principleand provided for specific, limited circumstances in which good faith could beconsidered".44 "As was comprehensively addressed in DY (Fiji)", this move "reflectsthe predominant international consensus on this issue, as articulated in both academiccommentary and jurisprudence from other jurisdictions".45 The Tribunal concludedthat:[74] The Act has codified the jurisdiction for refugee and protectiondetermination in New Zealand to the exclusion of implied powers which arenot inherent in the Tribunal's duty, where the Act is silent, to act consistentlywith the Refugee Convention. The existence of such an implied power wouldbe in breach of the Tribunals obligations under s 193(3), as it would beinconsistent with the Refugee Convention; a view supported by theoverwhelming weight of international opinion and jurisdiction.(Emphasis added.)[60] We agree. As there is no express power for the Tribunal to consider good faithon appeals against decisions of RPOs declining, after consideration, applications forrefugee status, the issue must, by virtue of s 193(3), be considered in accordance withthe Refugee Convention. It is inconsistent with the Refugee Convention to take thegood faith of the appellant into account.41 DY (Fiji), above n 9.42 CH (China), above n 9.43 At [54].44 At [57].45 At [64].[61] There is no room for necessary implication. To accept the RPO's "necessaryimplication" argument would be to recognise a further derogation from theRefugee Convention. But, given the terms of the Act itself, in order to derogate fromthe Refugee Convention in that way, Parliament would have had to expressly soprovide (as it has done in other parts of the Act).[62] This also explains the Tribunal's decision in AH (Egypt).46 There, the Tribunalwas faced with the question of whether it had the power to determine appeals on thebasis of the availability of protection elsewhere. The Act did not expressly address thematter. The RPO argued, as here, that the Tribunal had that power by necessaryimplication. The Tribunal agreed. It did so by reference to its statutory obligation toact consistently with the Refugee Convention as regards matters not expressly dealtwith by the Act. In contrast to its finding on the issue of good faith, the Tribunal foundthat it was consistent with the Refugee Convention to determine the appeal on the basisof protection elsewhere. Accordingly, and as a matter of "necessary implication fromthe express wording of s 193(3)", it had the power to determine the appeal in thatway.47[63] As our analysis demonstrates, the centrality of New Zealand's internationalobligations to the Act's scheme, and the recognition that the introduction of a goodfaith test in the process is a derogation from those international obligations, supportsthe YLs' argument that, when the good faith provisions were introduced, Parliament'sintention was limited to those specific provisions and the Act cannot now beinterpreted in the way the RPO argues for.Alternative protection[64] One other aspect of the scheme of the Act, relating to the way in which theavailability of a place of alternative protection is to be considered when decisions arebeing made, precludes the RPO's interpretation. The Refugee Convention providesthat a person who is already entitled to protection in another jurisdiction will not be46 AH (Egypt) [2013] NZIPT 800268-272.47 At [50].granted refugee status in a second jurisdiction because of an existing threat ofpersecution in their home country:In the case of a person who has more than one nationality, the term "thecountry of his nationality" shall mean each of the countries of which he is anational, and a person shall not be deemed to be lacking the protection of thecountry of his nationality if, without any valid reason based on well-foundedfear, he has not availed himself of the protection of one of the countries ofwhich he is a national.[65] That principle is incorporated in each of ss 130 and 131, as regards recognitionas a protected person in the following terms:130 Recognition as protected person under Convention AgainstTorture(2) Despite subsection (1), a person must not be recognised as a protectedperson in New Zealand under the Convention Against Torture if he orshe is able to access meaningful domestic protection in his or hercountry or countries of nationality or former habitual residence.131 Recognition as protected person under Covenant on Civil andPolitical Rights...(2) Despite subsection (1), a person must not be recognised as a protectedperson in New Zealand under the Covenant on Civil and PoliticalRights if he or she is able to access meaningful domestic protection inhis or her country or countries of nationality or former habitualresidence.[66] That principle is further reflected in s 138(2) of the Act:(2) Despite subsection (1), a refugee and protection officer may refuse torecognise a person as a refugee or a protected person if he or she issatisfied that the person has the protection of another country or hasbeen recognised as a refugee by another country and can be receivedback and protected there without risk of being returned to a countrywhere he or she would be at risk of circumstances that would give riseto grounds for his or her recognition as a refugee or a protected personin New Zealand.[67] In AH (Egypt), the Tribunal considered the significance of that principle, whilstat the same time recognising the different ways various jurisdictions had responded toit. The RPO's argument, of necessary implication, faces the very specific difficultyhere that it is at least arguable that on the basis of AH (Egypt) the Tribunal could haveconsidered the YLs' action in renouncing their status as permanent residents ofSingapore as going to the credibility of their claim for refugee status in New Zealand.That is, through the lens of s 138(2) of the Act, the Tribunal could have inquired as tothe effect of that renunciation: for example, whether it is irrevocable, particularlygiven the father's continued residence in Singapore. The Tribunal did not do that, andthe RPO did not seek to challenge its decision on that basis. The only point raised onappeal was that good faith was a mandatory consideration in all appeals, with the effectthat Fogarty J had been correct to remit that matter back (albeit on the wrong basis).Conclusion[68] For all those reasons, we reject the RPO's argument that it is a necessaryimplication of the purpose and scheme of the Act that good faith is a mandatoryconsideration for the Tribunal on all appeals against a decision of an RPO declining,after consideration, an application for refugee status.The Lazarus principle[69] Finally, and as neither the RPO nor the YLs supported this aspect of Fogarty J'sreasoning, we record briefly our reasons for concluding that Fogarty J erred in usingthe Lazarus principle in the way that he did.[70] As the YLs persuasively argued, doing so cuts across a carefully draftedlegislative scheme. The significance of good faith or lack thereof has been dealt withexpressly. This is not surprising given that consideration of good faith is a derogationfrom New Zealand's international obligations. In those circumstances, there is noroom for the application of some general common law principle in a way that neitherthose international obligations, nor their expression in domestic law, calls for.48Result[71] For those reasons, we allow the appeal.48 The general rule is that common law principles cannot be imported into a statute where a contraryintention is apparent: Oliver Jones Bennion on Statutory Interpretation (6th ed, LexisNexis,London, 2013) at 929.[72] The High Court order is set aside.[73] The decision of the Immigration and Protection Tribunal granting theappellants refugee status is reinstated.[74] The respondent must pay the appellants costs for a standard appeal on a band Abasis and usual disbursements. We certify for second counsel.Solicitors:Marshall Bird & Curtis, Auckland for AppellantsCrown Law Office, Wellington for Respondent