S v Chief Executive of the Department of Labour
|Publisher||New Zealand: Court of Appeal|
|Publication Date||8 May 2007|
|Citation / Document Symbol||CA18/06;  NZCA 182|
|Cite as||S v Chief Executive of the Department of Labour, CA18/06;  NZCA 182, New Zealand: Court of Appeal, 8 May 2007, available at: http://www.refworld.org/docid/46d445882.html [accessed 30 August 2015]|
|Disclaimer||This 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.|
Court of Appeal, Wellington CA18/06;  NZCA 182
18 April 2007; 8 May 2007
Hammond, Ellen France and Wilson JJ
Persecution - meaning of - violation of basic human rights other than risk to life or other violence
Procedure of RSAA - burden of proof - whether a burden of proof on refugee claimant
Procedure of RSAA - responsibility to establish refugee claim - whether matter stands out as requiring decision - Immigration Act 1987, ss 129G(5) and 129P(1)
The appellant, a citizen of Iraq and an Assyrian Christian had based his claim to refugee status on risk to his life and safety in Iraq but had been unsuccessful before the Refugee Status Appeals Authority (RSAA) which had found that the claimed risk was not well-founded. A challenge to that decision in the High Court failed. See S v Chief Executive of the Department of Labour  NZAR 234 (Keane J). In the Court of Appeal it was argued that the RSAA had erred in not considering (or not adequately considering) whether, although there was no risk to life or other violence, there was nonetheless a risk of serious harm arising from systemic violation of other basic human rights. The High Court had erred in similarly approaching the matter in terms of life and death and had not come to grips with the question whether the RSAA had dealt with persecution in its broader sense.
1 It cannot be an error of law for a tribunal considering a matter properly before it to fail to rule on some particular aspect of the matter if that matter is not raised with it by the interested party and if it does not stand out as requiring decision (see para ).
Butler v Attorney-General  NZAR 205 at 215 (CA) and Jiao v Refugee Status Appeals Authority  NZAR 647 at  (CA) applied.
2 The question of "persecution" in the broader sense was not one which stood out in the manner described in Butler as requiring decision. The point now advanced had not been emphasised before the RSAA nor before the High Court. Rather the focus in the High Court to some extent had been on the application of the real chance test. The appeal could be dismissed on that basis (see paras  & ).
3 On the assumption that it is correct to say that to constitute "persecution" the harm threatened need not be that of loss of life or liberty and that other forms of harm short of interference with life or liberty may be sufficient and measures in disregard of human dignity may in appropriate cases, constitute persecution, there was nothing in the evidence before the RSAA sufficient to meet the "stand out as requiring decision" test in Butler and Jiao (see paras  to ).
Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) at 430 referred to.
Other cases mentioned in the judgment
Refugee Appeal No. 75248 (19 May 2005)
S v Chief Executive of the Department of Labour  NZAR 234 (Keane J)
T v Refugee Status Appeals Authority  NZAR 749 (Durie J)
DJ Ryken & IM Chorao for the appellant
IC Carter & KM Howard for the first respondent
[Editorial note: There in no mention in the judgment of the fact that the jurisprudence of the RSAA on the "being persecuted" element of the refugee definition has moved beyond the now dated decision in Chan. In Refugee Appeal No. 74665/03  NZAR 60;  INLR 68 the RSAA adopted a human rights understanding of "being persecuted". That is, refugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard. In other words, core norms of international human rights law are relied on to define forms of serious harm within the scope of "being persecuted". Those core norms are to be found in the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights, 1966, the Convention on the Elimination of All Forms of Racial Discrimination, 1966, the Convention on the Elimination of Discrimination Against Women, 1979 and the Convention on the Rights of the Child, 1989. The RSAA decision also emphasises that the Convention text uses "being persecuted", not "persecution". The difference is important. Among other things, the phrase "being persecuted" draws attention to the fact of exposure to harm rather than to the act of inflicting harm. This is a significant point, especially in the context of causation.]
A The appeal is dismissed.
B In terms of s 40(4) of the Legal Services Act 2000 an award of costs of $3,000 plus usual disbursements would have been made if s 40 of that Act had not affected the appellant's liability.
C The appellant is to be referred as 'S' in this Court's judgment, including intituling, and any other court document produced in future.
D Facts redacted in the decision of the Refugee Status Appeals Authority including the name of the appellant's village and places visited by the appellant are to be similarly redacted in any judgment of this Court.
E This Court's file is not to be searched without prior leave of a Judge, after first hearing from the parties to the appeal.
(Given by Ellen France J)
Table of Contents
High Court judgment
The appellant's case
Result and costs
 The appellant, an Iraqi national and a Chaldean (Assyrian) Christian, came to New Zealand in December 2001, initially on a nine months visitor's permit. In October 2002, the appellant claimed refugee status. On 31 May 2004, the Refugee Status Branch ("RSB") declined his claim. His appeal to the Refugee Status Appeals Authority ("the Authority") was dismissed on 19 May 2005: Refugee Appeal No 75248. The Authority accepted Iraq remained a "generally violent place" and that there was an increasing level of anti-Christian violence in the relevant parts of Iraq. However, the Authority concluded there was nothing in the available material to show that the appellant had a well-founded fear of persecution.
 The appellant sought judicial review of the Authority's decision. In a decision delivered on 19 December 2005 and now reported as S v Chief Executive of the Department of Labour  NZAR 234 (HC), Keane J dismissed the application for judicial review.
 The primary focus of the appellant's claim for refugee status was on the risk to his life and safety on a return to Iraq. The appellant now says that there is a risk of persecution through serious harm of a lesser kind due to problems the appellant will have in terms of matters such as employment and the ability to practice his religion.
 The appellant submits that the Authority erred in not considering the risk of persecution in this broader sense and that Keane J, in turn, erred in his approach by not addressing this aspect.
 The issues have been substantially refined from the way in which the matter was put in the notice of appeal and in written submissions. This refinement has meant we do not need to consider matters raised in the written submissions such as the intensity of review. Further, the appellant did not pursue an argument that Keane J's reasons were inadequate. It follows that the only issue for us is whether Keane J erred in concluding that matters had to fall within the case as presented. Implicit in this issue is a question about the scope of the duty on the Authority.
 The Authority, the second respondent, took no part in the appeal.
 We largely adopt the description of the facts in the decision of the Authority.
 The appellant was born in the late 1960s in X, a village near Mosul, in northern Iraq. He lived there with his family - his parents and siblings. There are some seven or eight thousand people in X, the majority of whom are Yezidi, described at  by the Authority as a "distinct ethno-religious group of Kurdish origin". Muslims form the next largest population group in X, comprising 25 per cent of the population. Of this group, 17 per cent are Kurds and the remaining 8 per cent are Arabs. The Chaldean Christians make up the rest of the population. There is no Turkoman population in X. The appellant comes from the Chaldean Christian community.
 The Authority observes at  that this demographic composition is "unusual" in the area. Other villages nearby were overwhelmingly populated by one ethnic group or the other. "Indeed", the Authority notes at  that, "some villages to the east of X are well-known because they are populated solely by Christians". The Authority continues:
 X was spared the policy of Arabisation of the former Ba'ath regime under which non-Arab ethnic populations were forcibly displaced or made to adopt Arab ethnicity so as to change the demographic composition of the area. There was, however, an ill-fated attempt by the Ba'ath party in the mid 1980s to have Christians in X read the Quran. They objected and the leader of the Assyrian Christian church went to see the relevant minister. Following this meeting, the plan was not pursued.
 The Authority records at  that in general inter-communal relationships were good and the appellant experienced no specific problems in growing up.
 In 1985 the appellant was conscripted into the Iraqi Army. He was discharged in 1990. During this time he was harassed by non-Christian soldiers who would mock him and laugh at the prayers he said before eating his meals.
 After discharge from the Army, the appellant worked for two companies in Mosul for brief periods of time. There he was verbally harassed by co-workers who would call him derogatory names and would mock his religious beliefs. The appellant did not want to continue working in this environment and in 1993 he started to work for his father.
 The Authority says that the appellant's family was well known in X being an Assyrian Democratic Movement ("ADM") family. His father had been a member of the ADM, an ethno-political party in Iraq, for many years. From at least 1980, the appellant's father had been elected the local leader for X. The appellant became involved in the ADM in the late 1980s. The Authority explains as follows:
 The ADM was not allowed to have an office in X. Rather, the appellant's father spoke to local ADM members in public places frequented by Christians, giving instructions as to what needed to be done. The ADM members in X, were all instructed by the appellant's father to keep watch over their community. Thus, if any Christian person was arrested, this had to be brought to his father's attention. Similarly, if there was any movement by Iraqi military or security units through the X area, this too would be reported to his father.
 As a local leader the appellant's father was required to report to the overall ADM leader in D. The appellant occasionally went with his father to such meetings. After the establishment of the Kurdish Autonomous Region (KAR) in the aftermath of the first Gulf War, the ADM opened an office in D with the consent of the regional Kurdish leadership and the appellant became involved in ferrying information from X to the leadership at this office. This required him to frequently travel over what was the de facto border between the KAR and that part of Iraq under Ba'ath Party control. He carried out such activities until he left Iraq. While the appellant's father had ceased being a local leader in the late 1980s he remained active in the ADM and in the community.
 The Authority records that the appellant had no trouble until early 2001. At that point, the police came to his house asking for him. He was in D at the time. A relative came to see him in D and told him about the police visit. He waited in D for a few days and then he went back to X. Two months later, on coming home with his family, the appellant was told by a neighbour that the police had come to the house looking for him.
 There was a further visit by the police in late 2001. The appellant's house was raided at night and the appellant was taken to a local police station where he was held for four days. During that time he was questioned each day about his involvement in the ADM. The questioning would last for about an hour to an hour and a half. The appellant was assaulted with a hose and punched in the face. The appellant's father obtained his release by paying a bribe. After this, the appellant stopped all his activities and kept a low profile, staying at home.
 The Authority then records that the appellant left Iraq towards the end of 2001. He initially entered New Zealand on the basis of a temporary permit granted because he was engaged to an Iraqi woman who has permanent residency in New Zealand. The appellant made his claim for refugee status when the engagement did not lead to marriage.
 After the appellant left Iraq, his family moved from X to another town although they returned to X with the fall of the Ba'ath party. Whilst in New Zealand the appellant has maintained regular telephone contact with his family. He learnt from them that the authorities visited the family home as an order had been issued requiring all young men of his age to report back to the Army. The Authority continued:
 [The appellant] has learnt that the situation for Christians in Iraq has deteriorated since the fall of the regime. Many churches in Iraq have been bombed and his family have told him that the church in X has closed out of fear. He fears he will be targeted by either Muslims or Kurds because he is a Christian. He fears the fact that his family were well-known in the area for being an ADM family, will increase the prospect of him being targeted at some stage.
 After the hearing of the appellant's appeal, the Authority undertook some research of its own. The Authority provided the material it obtained from its research to counsel for the appellant and sought counsel's submissions on it. Further submissions were received from the appellant's counsel along with further country information.
 The Authority's decision dismissing the appeal was delivered on 19 May 2005 and the judicial review proceedings followed. A consent order was made by the High Court to the effect that the appellant's temporary permit continues until disposal of the judicial review proceedings.
 The United Nations Commission for Refugees ("UNHCR") in its advisory report dated 18 December 2006 recommended to member states that there be no forcible repatriation of Iraqis back to Iraq until the security situation in Iraq improves. The first respondent, the Chief Executive of the Department of Labour, advises that the New Zealand position is that, in general, forcible repatriation to Iraq is suspended but the government reserves its right to make decisions on a case by case basis.
High Court judgment
 Keane J approached the matter on the basis that the case was one of "high stakes" for the appellant and, as such, warranted a "close" look by the Court on review (at ). The Judge said at  that the "final point of reference" was the risk to the claimant for refugee status. The Court referred to the discussion of the broader definition of "persecution" by McHugh J in Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 to which we return later in this judgment.
 However, Keane J concluded that, absent new evidence, the issue on review was on how the Authority resolved the case as it was. The focus of the case before the Authority was on the risk to the safety and life of the appellant and that is what the Authority had to assess. In that context, the Judge said the Authority had asked itself the right question, as the appellant accepted. On that basis, there was no error of law and the Authority's decision was not unreasonable.
The appellant's case
 The appellant says that the Authority erred in not considering or not adequately considering whether, although not amounting to persecution because of risk to life or other violence, there was nonetheless a well-founded fear of persecution because of the risk of serious harm arising from systemic violation of basic human rights. The appellant argues that the failure to consider or to adequately consider this matter was critical for the appellant especially as he is a refugee sur place, that is, a person who whilst already away from their country of origin, determines that he or she cannot or will not return to that country. The contrast is with the person who flees his or her country because of a risk of persecution, Hathaway The Law of Refugee Status (1991) at 33. The effect of that status is that the appellant has not lived under the current regime in Iraq and does not have personal knowledge of it. In that context, the appellant is critical of what Mr Ryken described as the backward or historical nature of the Authority's consideration.
 The appellant says that the Authority should have considered the implications arising out of the fact that the appellant belonged to a class of persons whose religious buildings were being systematically destroyed to a larger extent in Baghdad and to a lesser extent (but to an extent) in northern Iraq. Reference to previous discriminatory treatment to the appellant in the past was not sufficient. Hence, the appellant in his written submissions submits that the Authority "failed by and large to grapple with the ultimate issue because it got side tracked".
 Against that background, the appellant says that the High Court erred in similarly approaching the matter in terms of life and death and did not come to grips with the question of whether or not the Authority had dealt with persecution in its broader sense.
 The appellant in oral argument initially focused on what Mr Ryken described as the need for "shared" decision-making involving both the appellant and the Authority. Ultimately, however, the appellant accepted that the position is as set out in Butler v Attorney-General  NZAR 205 at 215 (CA) and reiterated in Jiao v Refugee Status Appeals Authority  NZAR 647 at  (CA):
As this Court said in Butler v Attorney-General at p 215, it cannot be an error of law for a tribunal considering a matter which is properly before it to fail to rule on some particular aspect of the matter if that matter is not raised with it by the interested party and if it does not stand out as requiring decision.
 The Court in Jiao at  expressly disagreed with the interpretation in T v Refugee Status Appeals Authority  NZAR 749 at  (HC) where Durie J said, obiter, that the "responsibility of an appellant to establish the claim" in s 129P(1) of the Immigration Act 1987 "can be no more than a responsibility to establish what the claim is". Durie J had said at  that s 129P(1) "cannot by itself deprive the Authority of its role as a Commission of Inquiry with all the attendant duties to fully inquire into such claims as are presented to it".
 The approach in Butler and Jiao reflects the statutory framework although Butler pre-dates the enactment of Part 6A of the Immigration Act. Part 6A is designed to provide "a statutory basis for the system by which New Zealand ensures it meets it obligations" under the United Nations Convention Relating to the Status of Refugees 1951 (s 129A). Refugee claims are determined in the first instance by a refugee status officer (s 129E) and then there is a right of appeal to the Authority (s 129O). There is also an ability, in terms of s 129J, to seek to have a further claim for refugee status considered where circumstances in the applicant's home country have changed "to such an extent that the further claim [for refugee status] is based on significantly different grounds to the previous claim".
 The procedure on appeal to the Authority is set out in s 129P which relevantly provides as follows:
(1) It is the responsibility of an appellant to establish the claim, and the appellant must ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority before it makes its decision on the appeal.
(2) The Authority
(a) May seek information from any source; but
(b) Is not obliged to seek any information, evidence, or submissions further to that provided by the appellant; and
(c) May determine the appeal on the basis of the information, evidence, and submissions provided by the appellant.
 The appellant's argument essentially is that the question of persecution in the broader sense was one which stood out in the manner described in Butler as requiring decision. The relevant information was before the Authority or was found in the Authority's other decisions on other claims for refugee status by Iraqi Christians and did not need emphasis by the appellant.
 Giving the judgment of the High Court in this case a fair reading, it is implicit that the Judge had in mind the concern that the Authority should have considered the broader aspects of persecution. That is apparent, for example, from Keane J's description of the appellant's case (at ). We accept that this matter was not emphasised by the Judge but in our view this was because the point was not emphasised before the Authority, nor indeed at the High Court. It is apparent that the matter has not previously had the emphasis it has now been given. Rather, the focus in the High Court to some extent was on the application of the "real chance" test (used to determine whether or not there was a well-founded fear of persecution) when really what the appellant says is that a relevant matter has just not been considered or not considered adequately.
 The appeal can be dismissed on this basis. However, given the importance of the decision to the appellant acknowledged by the High Court and decision-makers in the area generally, we have gone on to consider what was available to the Authority against the appellant's broader claim. For these purposes the parties, and indeed Keane J, were content to approach the matter on the basis set out by McHugh J in Chan. There, at 430, McHugh J stated:
Moreover, to constitute "persecution" harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may in appropriate cases, constitute persecution: Weis, "The Concept of the Refugee in International Law", Journal du Droit International, (1960), 928 at p. 970.
 Further, at 431, McHugh J said:
Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason: Goodwin-Gill, pp. 38 et seq.
 Assuming that approach is the correct one, we turn then to the evidence available to the Authority. First, there was the appellant's evidence. In terms of his direct evidence the appellant did not point us to any material supporting the broader claims. The appellant is in regular telephone contact with his father but there was nothing from that contact to which we were directed on this aspect. In terms of the other material, we accept the submissions of the first respondent that there is nothing which stands out in the Butler and Jiao sense as requiring consideration. The evidence amounted to short passages in lengthy reports and is not enough to meet the "stand out as requiring decision" test.
 The other material includes the Home Office's Iraq Country Report (April 2004), the UNHCR Country Report of August 2004, the further material obtained by the Authority, and the additional information from the appellant.
 That material shows the parlous nature of the civil state and of the economy in Iraq. However, the information is more general and does not, as the first respondent says, get distilled down to the circumstances of the appellant's home village or the surrounding area.
 It is apparent from this information that there are very high rates of unemployment but no targeting of or restricted access to employment to Chaldean Christians. Some of the material shows some improvements, for example, in terms of access to education and access to health and medical services. Other than material about the general level of violence, the effect on the right to worship in the appellant's home area is not addressed.
 As to the approach in other cases where the Authority has granted refugee status to Iraqi Christians, the first respondent is correct that in those cases there were particular factors which helped those claimants to qualify for refugee status.
 For these reasons, we do not consider either the Authority or the High Court erred in their approach.
 Section 129T of the Immigration Act provides that confidentiality as to the identity of a refugee claimant and as to the particulars of their case must at all times, "both during and subsequent to the determination of the claim" be maintained by refugee status officers, the Authority and various other persons.
 Against that background, the first respondent sought suppression orders. The appellant agreed that suppression orders in the form sought by the first respondent should be made and we made orders in that form in the course of the hearing accordingly.
Result and costs
 The appeal is dismissed.
 The appellant is legally aided. The first respondent sought an order under s 40(4) of the Legal Services Act 2000 specifying what order for costs would have been made against the appellant if s 40 of that Act had not affected the appellant's liability. We make an order in terms of s 40(4), namely, that an award of costs of $3,000 plus usual disbursements would otherwise have been made.
 Finally, we record that we made orders requiring that:
(a) The appellant is to be referred to as "S" in this Court's judgment, including intituling, and any other court document produced in the future;
(b) The facts redacted in the decision of the Refugee Status Appeals Authority including the name of the appellant's village and places visited by the appellant, are similarly to be redacted in any judgment of this Court; and
(c) The Court of Appeal file is not to be searched without prior leave of a judge, after first hearing from the parties to the appeal.
Solicitors for the appellant: Ryken and Associates (Auckland)
Solicitors for the first respondent: Crown Law Office (Wellington)