WK v REFUGEE AND PROTECTION OFFICER [2018] NZCA 258

WK v REFUGEE AND PROTECTION OFFICER [2018] NZCA 258 [17 July 2018]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF HIS CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATIONACT 2009.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA150/2018[2018] NZCA 258BETWEEN WKAppellantAND REFUGEE AND PROTECTION OFFICERRespondentHearing: 17 May 2018Court: Asher, Venning and Mander JJCounsel: R S Pidgeon for AppellantS Jerebine and M Majeed for RespondentJudgment: 17 July 2018 at 3 pmJUDGMENT OF THE COURTA The application for leave to adduce further evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The appellant, WK, is a Turkish national who has made successive claims forrefugee and protected person status in New Zealand. After having considered threeprior claims, a Refugee and Protection Officer (the RPO) refused to consider WK'sfourth claim on the basis it repeated earlier claims and was otherwise manifestlyunfounded and clearly abusive.1[2] WK's application for judicial review of the RPO's decision was dismissed byWoodhouse J.2 He now appeals the High Court's decision.Applicable legal principles[3] Before turning to the grounds upon which WK brings his appeal, it is necessaryto first set out aspects of the relevant statutory framework and refugee law.[4] Part 5 of the Immigration Act 2009 (the Act) regulates the process by whichclaims for refugee and protection status are to be determined. It provides the statutorymeans by which this country gives effect to its international obligations as set out in anumber of instruments.3[5] Section 129 defines who may be recognised in New Zealand as a refugee: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 theRefugee Convention.(2) A person who has been recognised as a refugee under subsection (1)cannot be deported from New Zealand except in the circumstances setout in section 164(3).[6] Article 1A(2) of the United Nations Convention Relating to the Status ofRefugees (the Refugee Convention) provides that a refugee is a person who: owing to well-founded fear of being persecuted for reasons of race,religion, nationality, membership of a particular social group or politicalopinion, is outside the country of his nationality and is unable or, owing tosuch fear, is unwilling to avail himself of the protection of that country; orwho, not having a nationality and being outside the country of his former1 Immigration Act 2009, s 140(3).2 WK v Refugee and Protection Officer [2018] NZHC 514.3 Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951,entered into force 22 April 1954); Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984,entered into force 26 June 1987); and International Covenant on Civil and Political Rights 999UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).habitual residence as a result of such events, is unable or, owing to such fear,is unwilling to return to it.[7] The approach to be taken to whether a person is a refugee is a matter of settledlaw. The issue turns on whether objectively there is a real chance of the claimant beingpersecuted if returned to the country of his or her nationality for reasons of race,religion, nationality, or membership of a particular social group or political opinion.4The concept of "being persecuted" equates to sustained or systemic violation of corehuman rights, demonstrative of a failure of state protection.5 It means the infliction ofserious harm, coupled with the absence of state protection.6 Such a risk of persecutionmust be "well-founded" in the sense of there being a real as opposed to a remote orspeculative chance of it occurring; the standard is entirely objective.7[8] Subject to the limitations imposed by s 140 of the Act, successive claims canbe made for refugee and protection status. That provision provides:140 Limitation on subsequent claims(1) A refugee and protection officer must not consider a subsequent claimfor recognition as a refugee or a protected person unless the officer issatisfied—(a) that there has been a significant change in circumstancesmaterial to the claim since the previous claim was determined;and(b) the change in 1 or more of the circumstances was not broughtabout 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—4 Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA 173,[2014] NZAR 688 at [14] and [21].5 At [15].6 BV v Immigration and Protection Tribunal [2014] NZHC 283, [2014] NZAR 415 at [7].7 Teitiota v Chief Executive of Ministry of Business, Innovation and Employment, above n 4, at [15].(a) is manifestly unfounded or clearly abusive; or(b) repeats any claim previously made (including a subsequentclaim).[9] An RPO has no jurisdiction to consider a subsequent claim unless there hasbeen a significant change in circumstances material to the claim since the previousclaim was determined. Subsection (3) provides a RPO with the discretion to refuse toconsider a subsequent claim if satisfied it is manifestly unfounded, clearly abusive, orrepeats previous claims. Whereas there is a right of appeal to the Immigration andProtection Tribunal (the Tribunal) against an RPO's finding that he or she is withoutjurisdiction under s 140(1), there is no general right of appeal against a refusal toconsider a subsequent claim under s 140(3).8[10] Also relevant to the present appeal is s 141(2) of the Act which entitles an RPOto rely on earlier findings by the Tribunal: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.Background[11] WK has made a series of claims for refugee and protected persons status inNew Zealand. These need to be reviewed in some detail before dealing with his fourthclaim which is the subject of this appeal.First claim[12] After arriving in New Zealand on 24 April 2011, WK lodged his first claim on9 January 2012. WK had converted to Christianity in 2001. He feared he would bekilled or seriously harmed by his Muslim relatives and persecuted by ultra-nationalists8 Immigration Act, s 195(1)(a) and (b).and state agents if he returned to Turkey. The RPO accepted that WK had facedpressure from his family, experienced harassment when in the army, and possiblediscrimination from the police following his conversion to Christianity. However, therisk of harm to WK was considered to be "speculative or remote". His fear ofpersecution was held not to be well-founded.[13] On appeal from that finding, the Tribunal found some aspects of WK's claimwere not credible. It considered that while there was a risk WK could faceemployment discrimination, it did not reach the threshold of "persecution".The Tribunal dismissed his appeal on 19 July 2013.9Second claim[14] WK lodged a second claim on 8 October 2013, approximately 12 weeks afterdelivery of the Tribunal's decision on the first claim. WK claimed a fear of returningto Turkey because he wanted to be a Christian pastor and had posted comments onFacebook criticising Turkish nationalism and the Turkish government. He claimed hismother had told him he was wanted by Turkish police for questioning and possibledetainment.[15] On 14 February 2014, the RPO declined the claim. He found there were newelements to WK's original claim, but it was not accepted there was a credible linkbetween WK's Facebook comments and the visits by Turkish police. The RPO founda large number of people were making similar posts and that the limited number ofprosecutions for that activity and for blasphemy suggested WK did not face a risk ofharm from his online comments.[16] Before the Tribunal on appeal, WK raised an additional ground based on hisconversion to the Church of Christ of the Latter Day Saints in October 2013.He claimed he had a well-founded fear of being persecuted in Turkey because of hisMormon faith and his political dissent.9 AE (Turkey) [2013] NZIPT 800344 [First Tribunal decision].[17] After reviewing extensive material regarding the treatment of religious andpolitical viewpoints in Turkey, the Tribunal dismissed his appeal on 14 January 2016.10The Tribunal held there was only a speculative and remote possibility that WK wouldface serious harm as a consequence of his online criticism, and it was unable toconclude he would face persecution because of his religious practices.[18] WK also claimed alcohol abuse and related mental health issues along with hisconversion to Mormonism as constituting exceptional humanitarian circumstancesthat would make it unjust or unduly harsh for him to be deported to Turkey.11The Tribunal held that neither WK's personal circumstances nor his membership ofthe Mormon Church reached the threshold for exceptional circumstances of ahumanitarian nature.12Third Claim[19] After the Tribunal dismissed his appeal on 14 January 2016, WK lodged a thirdclaim on 1 April of that year. In written submissions filed on WK's behalf by his legalcounsel, it was recognised that WK would need to satisfy the RPO that he was notrepeating an earlier claim and that the RPO had jurisdiction to hear this subsequentclaim.13 WK's third claim was based on his fear of returning to Turkey because of hissexuality, his political opinions, and his opposition to the Turkish government. WKclaimed this risk of harm had increased following an attempted coup d'état in Turkey.[20] The RPO found there had been no significant change in circumstances materialto WK's claim. After reviewing material sourced from the media andnon-governmental organisations such as Amnesty International and Human RightsWatch, the officer observed that, while the attempted coup might itself constitute asignificant change in circumstances, no clear evidence had been provided indicatingthat event was material to WK's claim. The RPO observed:[WK's] evidence at interview was that he held firm pro-communist oranarchist political views and he would engage with leftist and pro-Kurdishpolitical parties if he returned to Turkey. [WK] had provided evidence in his10 AN (Turkey) [2016] NZIPT 800664 [Second Tribunal decision].11 Immigration Act, ss 194(5) and (6), and 207.12 WK [2016] NZIPT 501784.13 Immigration Act, s 140(1).previous claims that he was active on Facebook and an online website using apseudonym. This aspect of [WK's] claim must itself be contextualised againstthe fact that [WK] has provided no evidence of previous engagement inpolitical parties or organisations. Also, given his stated anti-social disposition,it also seems highly unlikely that he would actively engage in any politicalorganisation.While it is accepted that [WK] holds genuine political views in opposition tothe government, and put these forward as an element in his basis of claim, ithas previously been found by the Tribunal that these views would not put himat risk of serious harm in Turkey. Section 141(2) of the Immigration Act 2009entitles the RPO to rely on these findings.While it is acknowledged that the internal situation is not without itschallenges, previously cited country information does not indicate that [WK]belongs to any of the main groups identified in the current purge of suspectedGulenist sympathisers; [WK] has not provided any evidence that he has hadany association with the judiciary, teaching, media, or been active in the armedservices since 2005. It is noted that [WK] is without a profile in Turkey.(Footnotes omitted.)[21] On appeal, the Tribunal accepted that the RPO did not have jurisdiction toconsider WK's third claim.14 There had not been any significant change incircumstances material to WK's claim since his previous one. However, it wasaccepted that new information WK presented to the Tribunal was materially differentto that earlier provided to the RPO. This included a claim of risk arising from hisonline activity, and in particular online statements made by WK against the Turkishgovernment and against Islam on a blog "Anti-Islam Turkey" and on Twitter, in whichhe had made derogatory remarks about the Turkish President, Islam and the Turkishpolice. In relation to this new claim, evidence was also received of the Turkishgovernment's responses to anti-government and anti-Islam statements on social media.[22] Having accepted this information did constitute a significant change incircumstances material to WK's claim since the determination of his previous claim,the Tribunal proceeded to make a further substantive assessment of WK's claim forrefugee and protected persons status. Of relevance to the decision the subject of thisappeal, WK's association in Turkey with an American pastor and his blogging andTwitter activity were assessed.14 WK (Turkey) [2017] NZIPT 801067 [Third Tribunal decision].[23] The Tribunal concluded the aspect of WK's claim relating to the pastor waswithout foundation. There was nothing before it to establish that persons such as WK,who had only a "low-level" association with the pastor and who ceased attending hischurch some fourteen years previously, would be of any interest to the Turkishauthorities, nor that a former association with the pastor would give rise to anyinvestigation of him. There was no country information before the Tribunal toestablish that persons with a limited, historical connection with the pastor were beinginvestigated, let alone arrested or detained. WK's claims were described as entirelyspeculative and gave rise to no real chance of serious harm.[24] As a result of a detailed review of material relating to restrictions of freedomof expression in Turkey since the July 2016 attempted coup, the Tribunal noted thatmore than 10,000 Turks had been investigated in respect of their social media use, ofwhom 1,656 had been arrested. Despite these numbers, there were few reports ofconvictions arising as a result of social media postings. The Tribunal observed thatseveral cases had been documented where people had been given suspended sentencesfor expressing various forms of online dissent. The evidence before the Tribunal wasthat WK had no followers on Twitter and that between 14 and 32 people had read postshe had made on a blog. In any event, the country information indicated that ratherthan large scale arrests and prosecutions, the Turkish government was largelycombating dissent on social media by blocking websites. There was no informationestablishing that Turkish citizens returning to their country were screened regardingtheir use of social media.[25] The Tribunal concluded that WK's social media activity did not give rise to awell-founded fear of persecution, and that there was no real chance of him beinginvestigated or arrested by the authorities as a result of his online activity. Even ifinvestigated or arrested, the Tribunal did not consider the potential consequences thatwould follow would constitute serious harm. In summary, the Tribunal held:15The appellant has a profile on social media that could at best be described asminimal. Given the statistics referred to above concerning the number ofarrests and prosecutions for social media activity, the chance of the appellantbeing investigated or arrested by authorities as a result of his social mediapostings insulting President Erdogan and Islam does not rise to the level of a15 At [91].real chance. Even should this occur, the Tribunal does not consider theconsequences that would follow constitute serious harm. As noted earlier, theTribunal is aware of two recent convictions for insulting President Erdoganon social media (apart from a third one which was associated with thepromotion of a terrorist organisation). Both of these convictions resulted insuspended sentences.[26] WK's third claim was declined by the Tribunal on 27 February 2017 and hewas issued with a Deportation Liability Notice on 6 March.Refusal to consider a fourth claim[27] On 21 March 2017, WK made a fourth claim which was again based on WK'sonline activities.16 In support of this further claim, WK provided informationregarding his online activities since the third Tribunal decision, namely:(a) His popularity on social media had increased with there having been,by the time of his fourth claim, 864 views of his blog, of which 105were from Turkey.(b) People had sworn at him on Twitter and he had received an abusivemessage.(c) A former acquaintance of WK had allegedly emailed the Turkish policeto inform them of WK's social media activities. WK was copied intothe email.[28] Additionally, WK challenged the earlier (third) Tribunal decision, claiming ithad failed to appreciate the extent of his political profile and underestimated the riskhe would face if he returned to Turkey.[29] In response to this fourth claim, the RPO, being satisfied the claim was clearlyabusive, manifestly unfounded and repeated previous claims, exercised his discretionunder s 140(3) of the Act and refused to consider it.16 Allegations that an interpreter had gossiped about his case to Turkish refugees in New Zealandand a concern that he would be identified by the publication of the first and second Tribunaldecisions on the Tribunal's website were not pursued before the High Court. They are withoutfoundation.[30] The RPO was satisfied that WK's continued assertion that his online activitieswould bring him to the attention of the Turkish authorities repeated the "claimspreviously made" regarding his fear of harm. Furthermore, the RPO was satisfied thispart of WK's claim was "manifestly unfounded". In reaching that decision, the RPOrelied upon previous findings by the Tribunal that WK's profile on social media wasminimal and that there was no real chance of him being investigated or arrested; evenif this should occur, the consequences would not constitute serious harm.[31] In relation to the additional information provided in WK's fourth claim, theRPO considered the number of views of WK's blog was still relatively small, so thefinding there was no real chance of investigation or arrest continued to apply.In relation to WK's statement that the Turkish police had been informed of his onlineactivities, the RPO observed that the Tribunal had found that any investigation of WKwould not result in serious harm.[32] The RPO considered that WK's fourth claim was "clearly abusive" being atactic to forestall his deportation. It was noted the claim had been lodged less than amonth after the Tribunal had declined WK's third claim, at which point he had becomeliable for deportation.Judicial review of the RPO's decision[33] On WK's application for review, Woodhouse J found the RPO's decision thatthe claim was clearly abusive was reasonably open to him, and that the officer had noterred in holding WK's fourth claim repeated earlier claims. In particular, he foundthat the risk of harm to WK because of his statements on social media constituted arepetition of WK's second and third claims.17[34] Woodhouse J declined to admit further information that was not before theRPO about the number of views WK's blog had received and other material forwardedafter the hearing of the review application. WK also sought to support his applicationfor review by arguing the arrest and charging of the pastor constituted a new event.Woodhouse J noted that information now being relied upon had not been placed before17 WK v Refugee and Protection Officer, above n 2, at [67].the RPO, but that, in any event, the conclusions contained in the Tribunal's thirddecision, that the pastor's arrest did not support WK's claim, were not open tochallenge. There is no complaint on the present appeal regarding that finding.[35] The Judge held the RPO was also entitled to conclude that WK's fear of harmarising from his online activity was manifestly unfounded. It was noted the RPO hadcome to that conclusion because of the Tribunal's findings in its third decision that therisk of WK being investigated or arrested did not rise to the level of a real chance andthat, even if such an event occurred, the Tribunal did not consider the consequencesthat would follow would constitute serious harm.18[36] In light of these conclusions, Woodhouse J held there was no basis to find theRPO's refusal to consider WK's claim was unreasonable.The appeal[37] In support of WK's challenge to the dismissal of his judicial reviewapplication, Mr Pidgeon on behalf of WK identified three main grounds of appeal.They are as follows:(a) The High Court failed to correctly interpret s 140(3) in accordance withNew Zealand's international obligations, and in particular art 33 of theRefugee Convention (the principle of non-refoulement).(b) Had s 140(3) been correctly interpreted, WK's fourth claim could nothave been found to have been manifestly unfounded, clearly abusive,or to be a repeat of a previous claim. In support of that ground threefactual changes were relied upon:(i) increased third party views of WK's social media blog;(ii) changes to the country information relating to Turkey whichincreased the likelihood of his persecution; and18 At [72].(iii) the recent email from his former acquaintance to the Turkishpolice informing of his statements on social media.(c) The High Court erred in refusing to allow further evidence to beintroduced in support of WK's judicial review application.[38] On the present appeal, WK also sought leave to adduce further countryinformation.The application of the principle of non-refoulementThe argument[39] In support of WK's appeal, Mr Pidgeon placed considerable reliance onart 33(1) of the Refugee Convention (the principle of non-refoulement) whichprovides as follows:No Contracting State shall expel or return ("refouler") a refugee in any mannerwhatsoever to the frontiers of territories where his life or freedom would bethreatened on account of his race, religion, nationality, membership of aparticular social group or political opinion.[40] Mr Pidgeon submitted that s 140(3) is required to be read in a manner whichis consistent with art 33(1), and that any subsequent claim would necessarily have tobe assessed against the likelihood of refoulement. Mr Pidgeon argued that"limitations" placed on the consideration of a claim of the type provided in s 140(3)were potentially inconsistent with the principle of non-refoulement with whichNew Zealand is obliged to adhere under the Refugee Convention. Accordingly, the"most anxious scrutiny" must be afforded to a claim falling for determination unders 140 of the Act, and subs (3) should be applied "with caution and not zeal", and onlyexercised "sparingly".19[41] Mr Pidgeon was critical of the approach taken by Woodhouse J because, in hissubmission, the Judge failed to take into account New Zealand's internationalobligations when interpreting s 140(3) and making his decision.19 AO (Afghanistan) [2015] NZIPT 800797 at [30], citing AG (Sri Lanka) [2011] NZIPT 800092at [9].Decision[42] We do not consider Mr Pidgeon's submission is sustainable. As observed byWoodhouse J, the function of s 140 is to give effect to New Zealand's obligation topermit sur place claims under the Refugee Convention, namely claims based oncircumstances or events that have occurred after the claimant has left their country oforigin. By allowing successive or "subsequent" claims in relation to events andcircumstances that have arisen after the claimant has left their homeland, the Act giveseffect to this country's obligations under the Refugee Convention and the overarchingobligation of non-refoulement.[43] Inherent in the application of s 140 to a subsequent claim is the assessment ofany new risk identified by the claimant in that subsequent claim. This may include achange in circumstances in the refugee's country of origin, an intensification ofpre-existing factors that increase the risk of persecution, or where an individual'sconduct has heightened their risk of persecution. As was submitted by Ms Jerebine onbehalf of the RPO, s 140(1) allows sur place claims to be considered (subject to a goodfaith test), while s 140(3) prevents an ongoing cycle of repeated, groundless claims.There is no statutory limit on the number of claims a person can make, nor any timelimitation on when a claim can be made.[44] We accept consideration of New Zealand's international obligations may berelevant to the exercise of a domestic statutory power.20 However, s 140 was draftedfor the very purpose of ensuring New Zealand meets its obligations under theRefugee Convention, including the principle of non-refoulement. It is the means bywhich a proper balance can be achieved to guard against the risk of refoulement andprevent abuse of the system. So long as the subsequent claim is not repetitive,manifestly unfounded or clearly abusive, and there has been a significant change incircumstances material to the person's claim for refugee or protected person's statussince a previous claim, s 140 will not prevent that subsequent claim from beingconsidered.20 Attorney-General v Zaoui [2005] NZSC 38, [2006] 1 NZLR 289.[45] Mr Pidgeon's repeated references to the principle of non-refoulement inrelation to each aspect of his argument do not advance WK's appeal. Whether therehas been compliance with art 33(1) of the Refugee Convention turns on whethers 140(3) has been correctly applied by the RPO in refusing to consider WK's fourthclaim. New Zealand's international obligations, and in particular that of art 33 of theRefugee Convention, are incorporated with the plain meaning of the words of s 140.No further gloss is required.The interpretation and application of s 140(3)Repetition of claim[46] Section 140(3)(b) confers a discretion on a RPO to refuse to consider asubsequent claim that "repeats any claim previously made". In AR v Refugee andProtection Officer, Edwards J held that s 140(3)(b) requires a comparison to be madebetween the first claim and the subsequent claim to see whether it is essentially thesame claim.21 The parties accept that this formulation, which was adopted byWoodhouse J, correctly reflects the test to be applied. We also accept it represents thecorrect approach.[47] Mr Pidgeon submitted that what is "essentially the same" is to be judged bywhether the risk of refoulement remains essentially the same as the previous claim.We do not consider that adds anything to the statutory test. If there has been a previousdetermination in respect of an earlier claim of there being no real risk of persecution,a subsequent claim that restates the same basis for refugee and protection status, andrelies on the same material circumstances, will inevitably result in "essentially thesame" risk of refoulement.[48] WK, in support of his fourth claim, relied upon an increased number of "hits"on his social media blog, an email he had received demonstrating he had been reportedto the Turkish police, and a change to the country information relating to Turkey.Mr Pidgeon submitted that these developments constituted a change in the "intensity"of the risk faced by WK should he be returned to Turkey. Mr Pidgeon was particularly21 AR v Refugee and Protection Officer [2016] NZHC 2916 at [50].critical of the RPO's treatment of the evidence of WK having been reported to theTurkish police.[49] We, like Woodhouse J, do not consider the RPO made any reviewable error inhis assessment of this information when he concluded that WK's fourth claimessentially repeated his previous claim. The primary basis for WK's fourth claim wasthat he was at risk of harm from the Turkish authorities because of his anti-Islamcomments on his blog and, in particular, the derogatory online statements he had madeabout the Turkish President and Islam. However, the Tribunal had previously rejectedWK's claim of being at risk of harm from his "Anti-Islam Turkey" blog and thestatements he had made on Twitter regarding the Turkish President, Islam and theTurkish police.[50] Mr Pidgeon sought to rely upon the increased number of third party views ofWK's social media blog and his Twitter account. We consider the RPO was entitledto conclude that the change in the number of views was overall insignificant and didnot realistically change WK's risk of investigation or arrest, which the Tribunal hadpreviously assessed as not rising to the "level of a real chance".22[51] The RPO did take into account the email sent to the Turkish police. The RPOnoted the Tribunal had in its third decision considered the consequences should WKbe investigated, and that, by reference to recent convictions, where suspendedsentences had been imposed for insulting the Turkish President on social media, sucha consequence would not constitute serious harm. We accept the submission for theRPO that WK's complaint effectively amounts to a criticism of the weight afforded bythe RPO to the email to the Turkish police and the increased views of his blog. We donot consider the RPO's weighing of that material could be considered to beunreasonable in the Wednesbury administrative law sense. In that regard, we note that22 Third Tribunal decision, above n 14, at [91].this Court has held that Wednesbury remains the governing test of unreasonablenessin an immigration context.23[52] We consider the conclusions reached by the RPO were reasonably available tohim. It follows from those findings, based as they were on the earlier conclusions ofthe Tribunal, that the material provided in support of the fourth claim did notessentially disclose any different or, importantly, any greater risk of persecution shouldWK be returned to Turkey than his previous claim. It therefore essentially repeatedthat earlier claim.Manifestly unfounded[53] Mr Pidgeon submitted the test for "manifestly unfounded" in s 140(3)(a) washigh. Again, by reference to the principle of non-refoulement, he suggested a numberof formulae in amplification of the words used in the section. These included that itmust be shown the claim is "bound to fail", or has "no realistic prospect of success",and that a claim can only be found to be manifestly unfounded where there is noreasonable risk of refoulement "whatsoever".[54] Mr Pidgeon submitted that guidance could be drawn from the interpretation ofs 94 of the United Kingdom's Nationality, Immigration and Asylum Act 2002 whichemploys the similar wording of "clearly unfounded". A claim which is considered tobe "clearly unfounded" will attract a certificate precluding any appeal before anapplicant can be expelled to that person's country of origin. The House of Lords hasopined in relation to s 94 that "[i]f any reasonable doubt exists as to whether the claimmay succeed then it is not clearly unfounded".2423 BV v Immigration and Protection Tribunal, above n 6, at [20]; Puli'uvea v Removal ReviewAuthority (1996) 14 FRNZ 322 (CA) at 334; Huang v Minister of Immigration [2008] NZCA 377,[2009] 2 NZLR 700; Singh v Minister of immigration [2011] NZCA 532 at [33]–[36]; Zhang vAssociate Minister of Immigration [2016] NZCA 361, [2016] NZAR 1222 at [25]–[39]; Jiao vRefugee Status Appeals Authority [2003] NZAR 647 (CA) at [35]; Singh v Chief Executive ofMinistry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93; and Kaurv Minister of Immigration [2018] NZHC 1049. There is some conflicting High Court authority,including in the refugee context, suggesting greater intensity of review: Wolf v Minister ofImmigration [2004] NZAR 414 (HC) at [47]; A v Chief Executive of the Department of LabourHC Auckland CIV-2004-404-6314, 19 October 2005 at [30]; MPR v Refugee Status AppealsAuthority [2012] NZHC 567 at [14]; and T v Immigration and Protection Tribunal [2012] NZHC1871 at [22].24 ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348at [23] per Lord Phillips.[55] The English Court of Appeal also emphasised the "very high threshold" thatwas required to be met before a claim could be characterised as "manifestlyunfounded" in relation to s 72(2)(a) of the Immigration and Asylum Act 1999 (nowrepealed):25The Secretary of State cannot lawfully issue such a certificate unless the claimis bound to fail It is not sufficient that he considers that the claim is likelyto fail on appeal, or even that it is very likely to fail. Moreover, as theHouse of Lords explained in Yogathas, the Court will subject the decision ofthe Secretary of State to "the most anxious scrutiny".[56] Care is required before drawing on the interpretation of the words of a statutefrom a different jurisdiction. However, we consider a standard whereby an officermust be sure that a claim will fail, which appears to be the approach taken by theEnglish courts, is well within the terms of the statutory test of being "manifestlyunfounded". We consider "manifestly unfounded" denotes a high standard, somethingwhich is self-evident from the particulars on which the claim relies, and is unfoundedor untenable.26[57] Woodhouse J held the RPO was entitled to rely on the findings contained inthe Tribunal's third decision that the risk of WK being investigated or arrested did notrise to the level of a real chance and that, even if this did occur, the potentialconsequences would not constitute serious harm. We consider that Woodhouse J wascorrect in his conclusion. In that regard, we note the RPO's findings that the numberof views on WK's blog remained relatively small and that the Tribunal had previouslyconsidered the possibility of WK coming to the attention of the authorities. To theextent that risk may have heightened, it was immaterial in light of the previousdetermination by the Tribunal that any investigation or arrest in relation to WK'sonline activities would not result in serious harm. Because we are satisfied theseconclusions were reasonably available to the RPO, it follows that he made noreviewable error.25 R (on the application of Razgar) v Secretary of State for the Home Department [2003] EWCA Civ840, [2003] INLR 543 at [111], aff'd R v Secretary of State for the Home Department ex parteRazgar [2004] UKHL 27, [2004] 2 AC 368.26 See AO (Afghanistan), above n 17, at [31].Clearly abusive[58] Woodhouse J considered it preferable in approaching the issue of whetherWK's fourth claim was "clearly abusive" to take "[a]ll relevant factors" into account,rather than to define that term by reference "to a set of circumstances" or"synonyms".27 The Judge accepted that a "clearly abusive" claim could include onethat is lodged to prolong the appeal or deportation process, but that the circumstancesin which a clearly abusive claim may arise were not exhaustive.28[59] Mr Pidgeon submitted that Woodhouse J erred in finding that it was reasonablyopen to the RPO to conclude that WK's fourth claim was "clearly abusive" based onits timing and apparent objective of avoiding deportation. He submitted thatnotwithstanding the motives of the claimant, if the claim gave rise to a chance ofrefoulement the presence of other motives could not render the claim "clearlyabusive". Mr Pidgeon submitted that only where the statutory system has beenmisused can an abuse clearly arise, and that cannot be the case if the claim genuinelygives rise to the risk of refoulement.[60] The RPO concluded that WK's fourth claim was "clearly abusive". Thatfinding rested on the history of WK's claims and the timing of his fourth claim.The Tribunal's third decision was issued on 27 February 2017. WK was issued witha deportation liability notice on 6 March, and he became liable for deportation on13 March. WK lodged his fourth claim two days later, on 15 March. The RPO foundthe timing of WK's fourth claim, "in the context of [WK's] immigration history",which included three previous claims and findings by the Tribunal of him havingprovided false evidence, was for the purpose of forestalling the deportation process.[61] We consider that such a conclusion would not have been available to the RPOunless, as Woodhouse J observed, "[a]ll relevant factors" had been taken intoaccount.29 In the circumstances of the present case, the relevant factors wouldnecessarily include the particulars of the subsequent claim. The effect of the RPO's27 WK v Refugee and Protection Officer, above n 2, at [57].28 At [57]. Doug Tennent, Katy Armstrong and Peter Moses Immigration and Refugee Law (3rd ed,Lexis Nexis, Wellington, 2017) at 394.29 WK v Refugee and Protection Officer, above n 2, at [57].assessment was that WK's fourth claim based on his social media activities did notgive rise to any essentially different risk of refoulement. It follows in thosecircumstances that, even on the test contended for by Mr Pidgeon, the RPO waspermitted to draw an adverse inference from the timing of WK's fourth claim toconclude it was clearly abusive. This is particularly so when set against the history ofhis previous claims and the unmeritorious nature of WK's subsequent claim. In thecircumstances, we, like Woodhouse J, consider that the RPO's finding was reasonablyavailable to him.Refusal to admit further evidence before the High Court[62] Mr Pidgeon submitted that Woodhouse J erred by not allowing WK to adducefurther evidence, both at and following the hearing of his judicial review application.WK sought to introduce information that had not been before the RPO regarding thenumber of views on his blog, and following the hearing forwarded further informationand submissions to the Court which he requested be taken into account.[63] Woodhouse J refused to take this new information into account. The Judgeconsidered his task was to assess whether the RPO had made any reviewable error.30Because it could not be an error for a decision-maker to fail to take into accountevidence that was not before it, the evidence was irrelevant to the application beforehim. Woodhouse J observed that an application for judicial review generally proceedson the basis of evidence available to the decision-maker at the time the decision wasmade.31[64] Mr Pidgeon acknowledged that judicial review will generally proceed on thebasis of evidence available to the decision-maker. However, he submitted that inproceedings where an individual's human rights were at stake and New Zealand'sinternational obligations in issue, in particular with regards to the principle ofnon-refoulement, a different approach was required.30 At [68].31 At [68].[65] Orthodox principles apply to an application for judicial review of a decisionby either the Tribunal or the RPO.32 The refugee context does not change theapproach. The High Court's function is to correct jurisdictional, procedural, and othererrors of law.33 The Court should be mindful of the refugee context and ensure highstandards of fairness were followed by the decision-maker, but the same rules andprinciples are to apply.[66] The standard for the admission of additional evidence in judicial reviewproceedings is high. Because of the nature of judicial review, which is to assess thelawfulness of the decision-making process rather than the merits of the decision, thetask of the reviewing court is to assess whether a decision was reasonably available tothe maker on the basis of the evidence before them.34 As this Court has held, additionalevidence may only be permitted for particular circumscribed purposes:35The task of the reviewing court should be to assess whether, in light of theevidence before the decisionmaker at the time, the decision was one that areasonable decision-maker could come to. The only use of the subsequentevidence should be to decide whether or not the material actually before thedecision maker met that standard. Where a decision maker has made adefective inquiry, a court may find it necessary to refer to further evidence thatwould have been considered had a proper enquiry been made.[67] That approach has also been followed in immigration cases. In D vImmigration and Protection Tribunal, it was held that:36[J]udicial review generally proceeds on the basis of the evidence available tothe decision-maker at the time of the decision The attempted introductionof material after the event, especially for the purpose of casting doubt on thesubstantive reasonableness of the decision in question, is generallyinappropriate. Judicial review should not be seen as a further opportunity topresent or supplement evidence.[68] In the present case, the additional evidence sought to be adduced before theHigh Court related exclusively to developments that occurred after the RPO's32 See BV v Immigration and Protection Tribunal, above n 6, at [18]; X v Refugee Status AppealsAuthority [2009] NZCA 488, [2010] 2 NZLR 73 at [6]; and Attorney-General v Tamil X [2010]NZSC 107, [2011] 1 NZLR 721 at [45].33 MN v Refugee Status Appeals Authority HC Auckland CIV-2007-404-7932, 26 August 2008 at [4];and Attorney-General v Tamil X, above n 25, at [45].34 Chief Executive Land Information New Zealand v Te Whanau O Rangiwhakaahu Hapu CharitableTrust [2013] NZCA 33, [2013] NZAR 539 at [117].35 At [117] (footnotes omitted).36 D v Immigration and Protection Tribunal [2014] NZHC 3017 at [24] (footnotes omitted).decision. It did not demonstrate a significant change in circumstances material to theprevious claim. Nor has it been established how the information would have alteredthe reasonableness of the conclusions reached by the RPO.[69] In the circumstances of the present case, we do not consider there was a properbasis upon which the High Court could have allowed further evidence to be adduced.37We do not therefore consider Woodhouse J erred in declining to consider the furtherinformation on the hearing of the review application.The application to introduce evidence on the present appeal[70] WK also sought to have admitted for the purposes of his appeal an affidavitattaching further country information, although Mr Pidgeon accepted that WK'sappeal does not turn on this additional material. For substantially the same reasonswhy we do not consider Woodhouse J erred in declining to receive further information,we also refuse leave to admit this new evidence.[71] In any event, we do not consider the updated country information is cogent tothe issues we have earlier addressed. Furthermore, we do not consider it establishesany significant change in circumstances material to WK's fourth claim insofar ass 140(1) of the Act may still be considered as being in play.[72] Both the Tribunal and subsequently the RPO were aware, in February andMay 2017 respectively, that insulting either the President of Turkey or Islamconstituted a crime punishable by imprisonment. WK's claim is based upon theperceived risk he faces should he return to Turkey arising from the inflammatory viewshe has expressed online. However, the new evidence does not address that question.The material is focussed on the risk to those promoting legitimate discourse such asjournalists or human rights activists.37 CD (CA27/2015) v Immigration and Protection Tribunal [2015] NZCA 379, [2015] NZAR 1494at [37].[73] As was observed in AL v Immigration and Protection Tribunal, in relation tocountry information which had not been before the Tribunal:38Unprocessed generic information about a particular country will be of littleweight if it is not directed to the specific circumstances of the parties underconsideration, and unless in terms of date and quality it is demonstrated thatit warrants consideration.[74] We do not consider the information sought to be admitted on the appealadvances the information already known as it relates to WK's circumstances, includingthe fact that it is a crime to insult the President. Furthermore, the information is notrelevant to WK's claim, based as it was on him having made derogatory and abusiveremarks about the Turkish President, and Islam in general.[75] There is nothing in the proposed new evidence which would have potentiallyaffected the approach of the Tribunal in its third decision, or the conclusions of theRPO that WK's claim is repetitive, or manifestly unfounded. Any change ofcircumstances that may be able to be taken from this new country information impactsupon journalists and other persons seeking to factually report events and engage inconstructive political discourse, rather than those who are primarily involved inexpressing derogatory speech using social media. The potential ramifications fromsuch conduct remain unchanged from the time the Tribunal, in February 2017,assessed WK's position and when the RPO made his decision to exercise his discretionunder s 140(3) of the Act in May of that year. Accordingly, WK's application to admitfurther evidence is declined.Result[76] The application for leave to adduce further evidence is declined.[77] The appeal is dismissed.Solicitors:Integritas Law Firm, Auckland for AppellantCrown Law Office, Wellington for Respondent38 AL v Immigration and Protection Tribunal [2014] NZHC 1810, [2014] NZAR 1079 at [42](footnote omitted).