Last Updated: Friday, 19 December 2014, 09:55 GMT

T v. Refugee Status Appeals Authority (No. 2)

Publisher New Zealand: High Court
Author High Court of New Zealand
Publication Date 5 April 2004
Citation / Document Symbol CIV 2003-485-1848
Cite as T v. Refugee Status Appeals Authority (No. 2), CIV 2003-485-1848, New Zealand: High Court, 5 April 2004, available at: http://www.refworld.org/docid/40cec3c94.html [accessed 19 December 2014]
Comments 24 March 2004; 5 April 2004
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

T v Refugee Status Appeals Authority (No. 2)

High Court Wellington CIV 2003-485-1848
24 March 2004; 5 April 2004
Miller J

Judicial review – credibility findings – whether notice must be given of a proposed adverse credibility finding


Judicial review – fairness – whether notice must be given of proposed adverse credibility finding


Judicial review – review not an appeal – whether grounds of challenge relate to merits of RSAA decision and not to manner in which it was made


Judicial review – transcript – whether failure to supply a transcript a breach of fairness


Procedure of RSAA – inquisitorial procedure – whether duty to take inquisitorial approach


Procedure of RSAA – transcript – whether failure to supply a transcript a breach of fairness


The plaintiff, a national of Vietnam, arrived in New Zealand in November 1997. He was granted a permit to study English. That permit expired on 12 May 1998 but he remained in New Zealand. On 11 October 2000 he applied for refugee status on grounds which he later admitted were false. Before the Refugee Status Appeals Authority (RSAA) he advanced a new claim to refugee status, namely that he had been baptised as a Jehovah's Witness and proselytised his faith. He asserted that should he return to Vietnam and continue preaching and promoting his faith, he would be persecuted, prosecuted and sent for re-education. The RSAA concluded that the plaintiff lacked credibility. It rejected his claim that he would actively promote Jehovah's Witness teachings in Vietnam. On judicial review it was complained that the RSAA had erred in law by failing to treat the plaintiff fairly or to give him a proper opportunity to explain concerns held by the RSAA regarding his faith and by failing to keep a proper recording of the hearing (the tape recorder had broken down during the course of the hearing). The court had, however, been supplied with a transcript of that part of the hearing which had been recorded and counsel supplied the balance from their notes.

Held:

1. Natural justice requires that the RSAA should act in good faith and give both sides a fair hearing. A fair hearing involves notice of the matter in issue, disclosure of relevant material and an opportunity to be heard. Those requirements do not ordinarily extend to an oral hearing although the latter may be required where credibility is in issue as it was here (see para [18]).


Daganayasi v Minister of Immigration [1980] 2 NZLR 130, 141 (CA) applied; Evans v Bradford [1982] 1 NZLR 638 referred to.


2. The plaintiff had appeared before the RSAA in person and by counsel. The Authority had been entitled to test his assertions with respect to his religious beliefs, particularly in circumstances where those beliefs had only recently been advanced as the justification for his appeal. The Authority would have been remiss had it not done so, since his assertions regarding his religious beliefs were at the heart of the appeal. While the plaintiff complained that he did not appreciate that credibility findings were likely, it must have been obvious that credibility was in issue, both from the nature of his appeal and the manner in which the Authority conducted the hearing (see para [14]).


Khalon v Attorney-General [1996] 1 NZLR 458 applied.


3. The statute envisages that the RSAA will take an inquisitorial approach. That is almost inevitable in circumstances where assertions as to religious belief, or other matters that are only within the knowledge of the refugee claimant, are being tested. It would not be surprising that the claimant should perceive that as somewhat adversarial. The question was whether the plaintiff was heard and whether the matters in issue were drawn to his attention. On the facts the plaintiff had been made aware of the evidence on which the RSAA had concluded that the plaintiff lacked commitment to his faith. Second, while the RSAA had commented adversely upon the plaintiff's inability to name the twelve disciples or to recognise the name Pontius Pilate, the Authority had acknowledged that this was a limited test of the plaintiff's Bible knowledge and it did not weigh significantly with the Authority. It was simply held to be compatible with the other indicators of "less than significant dedication" to his faith (see paras [19] & [20]).


4. It was necessary to bear in mind that this was an application for judicial review, not an appeal. The plaintiff had been on notice of the issues and was able to comment on the facts on which the decision was based. He had also been given two weeks after the hearing to provide any further information that he had wished the Authority to consider. The findings attacked by the plaintiff were credibility findings that were plainly open to the Authority on the evidence (see para [23]).


5. The Authority controlled its own procedure. Under s 129Q of the Immigration Act 1987 it must give reasons but there is no requirement to prepare a transcript. In those circumstances, an obligation to produce a transcript should not lightly be inferred. It was hard to accept that the failure to supply a transcript after the hearing can in itself show that the hearing was unfair. It was necessary to bear in mind the purpose for which a transcript may be required. The High Court is not conducting an appeal by way of rehearing and there is no statutory obligation to keep a transcript. There is no right of appeal from decisions of the Authority. It is one thing to anticipate that a record will be kept in cases where there is an appeal by way of rehearing, and quite another to assume that it is required where there is no such appeal (see paras [26] & [27]).


SCFP Local 301 v Quebec Conseil de Service Essentiels [1997] 1 SCR 793 (SC:Can), Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 (FC:FC) and Douglas v CIR and Taxation Review Authority (High Court Wellington, CP 34/98, 8 November 2000, Wild J) referred to.


Application for Review dismissed

Other cases mentioned in Judgment

Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA)
Kathiresan v Minister for Immigration and Multicultural Affairs (VG 305 1997, 4 March 1998, Gray J)


Counsel

JS Petris for the plaintiff
I Carter for the defendants

MILLER J [1] This is an application for judicial review of a decision of the Refugee Status Appeals Authority. The Authority dismissed an appeal by the plaintiff against a decision of a refugee status officer declining the grant of refugee status to the plaintiff, who is a Vietnamese national.


Factual Background

[2] The applicant arrived in New Zealand in November 1997 with a student visa granted for the purpose of allowing him to study English. The permit was valid to 12 May 1998. Following its expiry he stayed on in New Zealand and worked, and continues to do so.

[3] On 11 October 2000 the plaintiff applied for refugee status because his permit had expired. The claim for refugee status was based on an allegation that his father had been in prison in Vietnam and was in trouble with Vietnamese authorities for protesting about corruption. He said that he had fled Vietnam because the police and authorities were seeking him for assisting his father.

[4] Before the Authority, the plaintiff explained that this claim was false. He advanced an alternative basis for seeking refugee status, which is that he has been baptised as a Jehovah's Witness. As such he practises proselytising by visiting homes in an attempt to convert people to the Jehovah's Witness faith. He says that should he return to Vietnam and continue preaching and promoting his faith, he will be persecuted, prosecuted, and sent away for re-education.

[5] The Authority concluded that the plaintiff lacked credibility. It rejected his claim that he would activity promote Jehovah's Witness teachings in Vietnam.

[6] The Authority recognised that Article 1A(2) of the 1951 Convention relating to the status of refugees allows a person to acquire refugee status if there is a well-founded fear of being persecuted for reasons of religion and that person is outside the country of his nationality by reason of such fear. The Authority identified the principal issues as:


a) Whether objectively, on the facts as found, there was a real chance of the plaintiff being persecuted if returned to Vietnam;

b) If the answer is yes, was there a Convention reason for that persecution.

[7] The plaintiff did not contend that the Authority misdirected itself with respect to the issues or the Convention. Rather, his claim was that the Authority erred in law in several respects. Those respects were:


a) Placing an onus on the plaintiff to establish he was truthful. This claim was abandoned before me.
b) Failure to treat the plaintiff fairly or to give him a proper opportunity to explain his concerns regarding his faith.
c) Failure to keep a proper recording of the hearing in breach of its own procedures and its advice to the plaintiff.

[8] The latter two grounds are better characterised as breaches of natural justice.

[9] The Authority admitted that it required the plaintiff to establish his claim. It admitted that the tape recorder used by the Authority broke down during the course of the hearing, but denied a breach of natural justice.

Statutory Context

[10] Paragraph 129N of the Immigration Act 1987 provides that there continues to be a body called the Refugee Status Appeals Authority, the main functions of which include the hearing of appeals from determinations by refugee status officers not to recognise a claimant as a refugee. Under s.129N(8) and Schedule 3C of the act, the Authority has the powers of a Commission of Inquiry, and it is free to set its own procedure subject to the Act and any regulations made under it.

[11] The statute expressly provides that it is the responsibility of an appellant to establish his or her claim, and to ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority; s.129P(1). The Authority is entitled to determine the appeal on the basis of the information, evidence, and submissions provided by the appellant. Further, in any appeal involving a subsequent claim, the claimant may not challenge any finding of credibility or fact made by the Authority in relation to a previous claim.

[12] The Court of Appeal has held that s.129P(1) requires that an appellant to bear the onus of proving his or her claim before the Authority; Jiao v Refugee Status Appeals Authority [2003] NZAR 647. Recognising difficulties in obtaining evidence and the risks potentially faced by refugees should they be repatriated, the benefit of the doubt should be given where doubt remains after all available evidence has been checked and the tribunal is satisfied as to the applicant's general credibility.

Natural Justice

[13] The Authority is bound by the requirements of natural justice. However, the Authority is not obliged to give the appellant advance warning of adverse finding as to credibility, since credibility will normally be in issue; Khalon v Attorney-General [1996] 1 NZLR 458. The Authority also advised the plaintiff that such findings might be made at the commencement of the hearing.

[14] The plaintiff appeared before the Authority in person and by counsel. The Authority was entitled to test his assertions with respect to his religious beliefs, particularly in circumstances where those beliefs had only recently been advanced as the justification for his appeal. The Authority would have been remiss had it not done so, since his assertions regarding his religious beliefs were at the heart of the appeal. He complains that he did not appreciate that credibility findings were likely, but it must have been obvious that credibility was in issue, both from the nature of his appeal and the manner in which the Authority conducted the hearing.

[15] The plaintiff complains that he was not treated fairly. In his submissions, Mr Petris contended that certain observations of the Authority and its reasons were not put to the plaintiff for comment. He relied upon a reference to the plaintiff's lack of religious initiative outside the structured framework of weekly congregational activities. Similarly, it is suggested that the finding of a lack of religious commitment was not put to the plaintiff for comment. It is suggested that the plaintiff was treated as an adversary.

[16] Mr Petris added that the Authority failed to take care, when considering adverse credibility findings, to discount any problems of language or translation or culture. He also asserted that the plaintiff was not given credit for confessing that his previous grounds for claiming refugee status were false.

[17] As Mr Petris recognised, the statute envisages that the Authority will take an inquisitorial approach. That is almost inevitable in circumstances where assertions as to religious belief, or other matters that are only within the knowledge of the appellant, are being tested. It is not surprising that the appellant should perceive that as somewhat adversarial. However, bias is not alleged. The question is whether the plaintiff was heard, and whether the matters in issue were drawn to his attention.

[18] Natural justice requires that the Authority should act in good faith and give both sides a fair hearing. A fair hearing involves notice of the matter in issue, disclosure of relevant material, and an opportunity to be heard; Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 141. Those requirements do not ordinarily extend to an oral hearing although the latter may be required where credibility is in issue as it was here; Evans v Bradford [1982] 1 NZLR 638.

[19] I turn to deal with the plaintiff's specific complaints. First, Mr Petris submitted that the finding of the Authority to the effect that the plaintiff lacked commitment to his faith outside the structured framework of weekly congregational activities was never put to the plaintiff. I reject this submission. He was specifically asked to provide details of the other activities that he undertook. The Authority's finding is a conclusion drawn from the evidence as a whole, and I do not accept that it was required to put its conclusion to him. It is sufficient that he was made aware of the evidence on which it was based and the fact that his commitment to his faith was in issue.

[20] Second, Mr Petris complained how the Authority commented adversely upon the plaintiff's inability to name the twelve disciples or recognise the name Pontius Pilate. He pointed out that this technique must be used with considerable care; Kathiresan v Minister for Immigration and Multi-cultural Affairs (Federal Court of Australia VG 305 1997, Gray J, 4 March 1998). I accept that many practising Christians might struggle to name the 12 disciples from memory, particularly when giving evidence under some pressure. However, the Authority acknowledged that this was a limited test of the plaintiff's Bible knowledge, and it did not weigh significantly with the Authority. It was simply held to be compatible with the other indicators of "less than significant dedication" to his faith.


[21] Third, Mr Petris pointed to the Authority's findings that Mr T had been willing to lie and manipulate people and the New Zealand immigration and refugee assessment system, and that his parents support his efforts to remain in New Zealand and are not critical of his methods. Mr Petris submitted that the point regarding his parents' attitude was not put to him. However, the plaintiff was asked whether it did not matter to his parents how he got permission to stay so long as he did get permission, and he confirmed that was correct. In any event, the attitude of his parents appears to have carried little if any weight with the Authority.


[22] Fourth, Mr Petris complained that the Authority failed to give credit to the plaintiff for telling the truth before the Authority. It was said that the plaintiff's confession indicates that his evidence ought to have been believed. I accept Mr Carter's submission that some scepticism was justified. The original false claim had not been a spontaneous claim made at the airport. It had been made two years after his arrival in New Zealand. He recanted only at the last moment. The Authority saw and heard Mr T and was entitled to conclude, having regard to the whole of the evidence and his demeanour, that he was not credible. I acknowledge, as Mr Petris submitted, that care is needed in assessing demeanour where the witness comes from a different cultural background to that of the decision-maker. Difficulties in assessing demeanour may be exacerbated in circumstances where the Tribunal is in a position of authority with respect to the witness. However, there is noting to show that the Authority erred in this respect. The Tribunal noted that it had had the advantage of seeing and hearing the plaintiff, but did not base its decision on demeanour.


[23] It is necessary to bear in mind that this is an application for judicial review, not an appeal. The plaintiff was on notice of the issues, and was able to comment on the facts on which the decision was based. I add that he was given two weeks after the hearing to provide any further information that he wished the Authority to consider. The findings attacked are credibility findings that were plainly open to the Authority on the evidence.


[24] The plaintiff also complained about the absence of a transcript. The Authority indicated that it would record the evidence but the machine broke down. In the result, only part of the hearing (one hour) was recorded. I was supplied with a transcript of that part and counsel supplied the balance from their notes. They were agreed that the resulting transcript was accurate.


[25] The Authority controls its own procedure. Under S.129Q it must give reasons but there is no requirement to prepare a transcript. In those circumstances, an obligation to produce a transcript should not lightly be inferred.


[26] Mr Carter responsibly drew my attention to SCFP Local 301 v Quebec Conseil de Service Essentiels [1997] 1 SCR 793, a decision of the Supreme Court of Canada in which the Court accepted at para 76 that lack of a transcript may be a breach of natural justice where it leads to the applicant being deprived of grounds of review. However, the Court observed that there will be no breach of natural justice where the decision facing the tribunal could be made on the basis of evidence established through other means. Even where the statute creates a right to a transcript, the applicant must show a serious possibility of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review.


[27] Like Wild J in Douglas v CIR and Taxation Review Authority (High Court Wellington CP34/98 8 November 2000) and the Federal Court of Australia in Oldfield v Secretary, Defence Department (1988) 78 ALR 717, I find it hard to accept that the failure to supply a transcript after the hearing can in itself show that the hearing was unfair. It is necessary to bear in mind the purpose for which a transcript may be required. This Court is not conducting an appeal by way of rehearing and there is no statutory obligation to keep a transcript. There is no right of appeal from decisions of the Authority. It is one thing to anticipate that a record will be kept in cases where there is an appeal by way of rehearing, and quite another to assume that it is required where there is no such appeal.


[28] An analogy can be drawn with the giving of reasons. Natural justice does not invariably require that reasons be given, although failure to do so may more readily encourage a conclusion that a decision was arbitrary or unfair; R v Awatere [1982] 1 NZLR 644. Reasons are strongly desirable, even necessary, in order to promote public confidence in the administration of justice, but that is a different point. Reasons were of course given in this case. I add that the analogy is limited, in that the case for giving reasons is stronger than the case for preparing a transcript. Reasons record what the tribunal decided, and why.


[29] In any event, the claim fails on its facts. There is nothing in the point that the Authority said it would record the evidence but then failed to do so. The failure to keep a transcript was due to a breakdown of the equipment that went unnoticed at the time. The parties were able to provide this Court with a transcript, and there was no suggestion that the course of the hearing before the Authority was affected in any way.

Result

[30] The application is dismissed.

Costs

[31] Counsel may file memoranda.


Delivered at 11.00 am this 5th day of April 2004.


Solicitor for the plaintiff: J S Petris (Wellington)
Solicitor for the defendants: Crown Law Office (Wellington)

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