Last Updated: Monday, 28 July 2014, 16:37 GMT

O & L v. Refugee Status Appeal Authority

Publisher New Zealand: High Court
Author High Court of New Zealand
Publication Date 16 March 2004
Citation / Document Symbol CIV-2003-404-5724; CIV-2003-404-5725
Cite as O & L v. Refugee Status Appeal Authority, CIV-2003-404-5724; CIV-2003-404-5725 , New Zealand: High Court, 16 March 2004, available at: http://www.refworld.org/docid/413d79ef4.html [accessed 28 July 2014]
Comments 4 February 2004; 16 March 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.

High Court Auckland CIV-2003-404-5724 & CIV-2003-404-5725
4 February 2004; 16 March 2004
Harrison J

Judicial review - credibility findings - implausibility - finding of - principles of review
Judicial review - deference to RSAA - challenge on grounds of unreasonableness
Judicial review - implausibility - finding of - principles of review
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
Refugee Status Appeals Authority - credibility assessment - cultural factors - significance of decision-maker not having first hand experience of social, political and economic circumstances in country of origin
Refugee Status Appeals Authority - deference - when decision challenged on grounds of unreasonableness
 
The plaintiffs, nationals of Iran and also brothers-in-law, arrived in New Zealand in September 2002 and March 2003 respectively. Both applied for refugee status on the ground that though Muslims, they had associated with members of the Baha'i faith.  The Refugee Status Appeals Authority (RSAA) found that each of the plaintiffs' accounts was implausible on a number of independent grounds and found that neither faced a real chance of being persecuted in Iran.  On judicial review the question was whether the plaintiffs could establish that the relevant decision of the RSAA was one which no reasonable tribunal could have reached on the evidence before it.  

Held:

1.    The plaintiffs' rights were strictly circumscribed by well-settled rules relating to judicial review which is very much a process-based remedy.  The High Court has no jurisdiction to revisit the facts or the substance of the decisions (except in very limited circumstances, if any factual mistakes are so fundamental as to constitute an error of law) (see para [6]).

U & V v Refugee Status Appeals Authority (High Court Auckland, CIV2003-404-002530, 30 September 2003, Harrison J) and Zhan v Refugee Status Appeals Authority (High Court Auckland, M47/95, 8 March 1996, Morris J) followed and applied.

2.    Axiomatically, those who sit on the RSAA to determine appeals against decisions of the Refugee Status Branch are unlikely to have firsthand experience of the social, political and economic circumstances currently prevailing in a Muslim state.  The qualities of rationality, common sense and judicial knowledge which Authority members bring to the critical task of drawing inferences from an uncontradicted factual account cannot be devalued simply because they are determining the alleged effect of an alien political regime and unfamiliar religious and cultural norms upon an individual from that society.  That factor does not diminish their evaluative abilities or provide a presumptive springboard for impugning their decisions as unreasonable.  Authority members enjoy specialist expertise in this area of law and their analytical techniques must inevitably be supplemented by a body of knowledge acquired from an incremental familiarity with the reasons given by asylum seekers.  And, ultimately, in cases like these, explanations for certain conduct normally stand or fall on a robust evaluation of its plausibility judged according to norms universally applicable to human behaviour, taking account where appropriate of allowances for social, political and cultural differences.  However it must be stressed that those differences must always be viewed within the factual context and should not be elevated into an immutable factor which of itself will necessarily influence the result of an appeal (see para [23]).

3.    Axiomatically, also, the RSAA acts in an evidential vacuum in the sense that it does not have a competing or opposing factual base against which to measure an appellant's account.  It must rely upon an assessment of the credibility of his or her story in the absence of a comparative yardstick.  Again that factor does not disqualify the Authority from undertaking the very determinative function for which it is appointed.  Once it has followed that course, and weighed up all the evidence, a Judge asked to exercise powers of review cannot interfere unless satisfied that the decision, and the grounds on which it relied, was not reasonably open (see para [24]).

4.    In both cases the findings of implausibility were reasonably open to the RSAA (see paras [25] & [63]).

Applications for Review dismissed

No other cases mentioned in Judgment

Counsel

Simon Laurent for the plaintiffs
Dave Colbert for the defendants

HARRISON J

Introduction

[1] L and O are Iranian males.  They are also brothers-in-law; L is married to O's sister.  O arrived in New Zealand on 3 September 2002; L flew here in March 2003.

[2] Upon arrival O and L applied for recognition as refugees under the 1951 Convention and its 1967 protocol.  Each is a Muslim but their applications were based upon associations with members of the Baha'i faith.  The Refugee Status Branch ("RSB") of the New Zealand Immigration Service rejected the applications.  Each then appealed to the Refugee Status Appeals Authority ("RSAA" or "the Authority").  The Authority was constituted by the same two members for both appeals.  On 30 September 2003 it issued separate decisions, dismissing each.

[3] O and L challenged both decisions.  They seek judicial review.  Both allege that the Authority acted unreasonably, erred in law, or made mistakes of fact.  O's application is restricted to four grounds; L's runs to eight grounds.  Ultimately, though, the issues for determination coalesce into this solitary question as posed by Mr David Colbert, counsel for the RSAA: are either of the applicants able to establish that the relevant decision was one which no reasonable tribunal could have reached on the evidence before it.

Legal Principles

[4] Counsel for both parties accepted this summary of the relevant principles applying to applications for judicial review of RSAA decisions (U & V v Refugee Status Appeals Authority and The Attorney-General, CIV-2003-404-002530, Auckland Registry, 30 September 2003 at para 13):

(a)    A decision of the RSAA is final (s 129Q(5) Immigration Act).  An applicant has no right of appeal.  Accordingly, his only avenue of redress is by way of application for judicial review under the Judicature Amendment Act 1972, to be determined on standard grounds relating to the decision making process, not to the merits of the decision itself;

(b)    The HIgh Court will only interfere with a credibility finding made by a specialist tribunal on the ground of unreasonableness if it is proven to be perverse, capricious or without any factual basis (this last category may also constitute an error of law);

(c)    A tribunal's discrete finding of implausibility may be more vulnerable to challenge but not if it is reasoned and based upon the orthodox judicial decision making process of drawing inferences available from proven facts by applying logic, common sense and experience;

(d)    A conclusion based upon a detailed examination of irrelevant or peripheral issues is unsatisfactory, as is one which obviously fails to make allowance, where appropriate, for the applicant's cultural background and previous social experiences.

[5] Also, Mr Colbert relied on these observations found in U & V at para 14:

The practical context is this.  The Authority's members are barristers, trained and experienced in the art of human evaluation.  They enjoy specialist expertise in this important area of the law, and a working familiarity with the reasons variously given by those wanting asylum.  That is not to suggest that the approach adopted by its members is clouded by cynicism, but to recognise the value of their knowledge and insight which a Judge on review cannot hope to replicate.  Accordingly, the RSAA's factual decisions are entitled to particular respect, and a person challenging them faces a high hurdle in proving unreasonableness.

[6] I must emphasise again that the applicants' rights are strictly circumscribed by the well settled rules relating to judicial review.  It is very much a process based remedy.  I have no jurisdiction to revisit the facts or the substance of the decisions (except in very limited circumstances, if any factual mistakes are so fundamental as to constitute an error of law).  I respectfully adopt the observations of Morris J in Zhan v Refugee Status Appeals Authority (M47/95, Auckland Registry, 8 March 1996 at p 12):

Under this head the applicant is really asking me to overturn a finding of credibility made by a judicial body which has the inestimable advantage of hearing and assessing the principal witness, namely the applicant.  This Authority, as with any other judicial body, must have full jurisdiction to determine plausibility and/or creditworthiness of witnesses.  As long as inferences drawn by it are reasonable, having regard to the evidence before it, this Court should not interfere with its findings.  Where, as here, the reasons for the findings are clearly spelled out in a considered and detailed judgment, and the reasons are founded in evidence, to successfully overturn a finding of credibility is almost an impossible task.

[7] The RSAA had the benefit of seeing and hearing each applicant.  The Authority's decisions carefully summarised the relevant evidence before recording a conclusion and spelling out reasons.  In each case it found that the applicants' account of events in Iran leading to his departure from that country was implausible on a number of independent grounds.  As a consequence, the Authority held that there was no real chance that either O or L would suffer persecution if he returned to Iran and they were not refugees within the meaning of Article 1A(2) under the Refugee Convention 1951 and its 1967 protocol.

[8] I need only summarise the decisions in this way to emphasise the difficulties which O and L face in succeeding on these applications.  I shall discuss each in turn.

(1)    "O"

(a)    RSAA's decision

[9] The Authority heard evidence on 13 February, 17 March and 16 April 2003 and delivered its decision on 30 September 2003.  It summarised the relevant background (paras 1-12) before outlining O's case (paras 13-84).

[10] It would be futile for me to go into the same detail in this judgment.  What follows is a summary of O's account of events given to the RSAA.  O is one of two children born of Iranian nationals.  His older sister, M, is now in New Zealand, and has been granted refugee status.  O himself is married; his wife and two young children remain in Iran.

[11] After leaving school O sold fabric in a bazaar and then worked as a motor mechanic before undertaking military service.  He lived abroad, mainly in Japan, from February 1990 to mid 1993.  On returning to Iran O purchased a home and set up a shop selling ladies handbags and children's shoes.  He gave evidence of encounters with the Basiji in the mid 1990s.  In early 2001 he met an old friend, MR, who came from a Baha'i family.  They renewed their acquaintance.  Between March and May 2001 O was twice arrested by the Basiji and the Komiteh, allegedly on the grounds of his association with MR.

[12] Nevertheless, despite the adverse interest which their association attracted from the policing arms of the Iran state, O continued to see MR.  They decided to set up a business together making samovars or kettles.  MR's brother, Amin, was also involved.  Occasionally the Basiji would interrogate O and MR, asking questions disclosing a suspicion that MR was converting or proselytising O to the Baha'i faith.

[13] In January or February 2002 MR's father died.  O attended a special ceremony which was held to mark his passing.  The Basiji apprehended and arrested him while he was leaving.  They subjected him to physical punishment and inquired about his association with Baha'is.  To secure his release from custody O had to promise that he would sever contact with MR and his family and not attend their community. He was forbidden from leaving the city for two months and directed to close his business within that time.

[14] On 12 June 2002 O was in the shop alone when MR appeared but not in his work uniform.  Amin joined him.  They said they would be unable to work for a time as they had to go elsewhere to take care of business. Coincidentally a crowd started to gather outside the shop entrance.  Amin referred to the presence of the authorities.  MR took a gun from his bag.  O heard officials calling out the names of all three through a loud hailer, indicating knowledge that they were present and directing them to come out onto the street.

[15] O heard a shotgun fire.  He saw a bullet land in the wall next to the shop.  MR then directed O and Amin to leave.  They exited through the back door and escaped on a motorbike to a suburb in another city.  They remained there for 14 or 15 days. In this time Amin advised O that he and MR had been promoting their religion, apparently by way of explanation for the confrontation.

[16] While in hiding O contacted his wife.  She advised that the officials had gone to his parents' home searching for him.  They beat his father.  He was also told that his half sister, F, had disappeared without trace.

[17] Through one of Amin's associates, O made contact with an agent who obtained a false passport for him.  He left Iran on 27 June 2002.  After travelling through Thailand and Malaysia, O arrived in New Zealand on 3 September 2002.  In this interim period he had no contact with anybody else in Iran.  But he has spoken with his wife and stepmother subsequently.  They told him that the authorities had visited his in-laws'  home in January 2003.  They had also been to his father's home twice.  His father died in October 2002.  O has learned that MR was arrested and killed by the authorities and Amin has gone missing without trace.  He has also been told that the authorities have sealed his former business premises.

[18] O gave evidence at the hearing.  So too did his sister, M, her fianc é, SA, and his brother-in-law, L. whose appeal the Authority determined separately.

[19] The RSAA then identified the two principal issues for determining whether O was a refugee in terms of the Convention: first, was there a real chance of O being persecuted if he was returned to his country of nationality; and, second, if so, is there a Convention reason for that persecution?  It then noted the necessity of assessing O's credibility, summarising its conclusion in these terms:

[88]    For the following reasons, the Authority finds that [O's] account of operating a business with his friend MR and his account of being arrested and pursued by the authorities because of that association, is false and not credible.

[89]    The Authority has carefully assessed the evidence of [O] and the other witnesses over three full hearing days.  The Authority has found a number of aspects of the account put forward to be implausible.  None of these matters taken on their own in isolation would lead the Authority to reject the credibility of the account given.  However, when considered cumulatively and looked at in the whole the Authority has found that it is satisfied the account put forward is false.
[20] The RSAA then identified six separate grounds for rejecting O's account.  Of them, three fell within the realm of findings of implausibility in O's evidence, another related to evidential inconsistencies, and the other two were based upon L's evidence (paras 90-132).  The Authority concluded in these terms:
[133]    Counsel submitted that the Authority should exercise a high degree of caution in rejecting [O's] credibility because of aspects of the account that are implausible.  Counsel referred the Authority to a judgment of a Canadian court in support of this proposition.  Counsel urged that this is especially the case if the decision maker is to apply Western paradigms to an assessment of [O's] behaviour as described by [O] in his account of events.

[134]    The Authority always exercises caution in rejecting the credibility of a witness.  The Authority has considerable experience in determining Iranian appeals and recognises cultural differences to the extent that they are relevant.  However the authority is of the view that for the reasons given above the accounts put forward by [O] and [L] are implausible in the Iranian or for that matter whatever context.  In addition, the Authority has relied on [O's] inconsistency with prior testimony regarding the period between these two very important events in his account namely the search of his family home and the shooting incident.  Added to that is the vagueness of [L] all of which lead the Authority to the conclusion it has reached.

[135]    For the reasons given above the Authority finds that [O's] account of his friendship with MR, operating a business with him and his arrests and harassment because of that association, is false and not credible.  The Authority also finds the account of [L's] wife's friendship with a Bahai person and his claims that the authorities are pursuing him and his wife to be also false and not credible.

...

[138]    Accordingly, there is no credible evidence before the Authority as to the circumstances and manner in which [O] departed from Iran.  As there is no credible evidence that he remained of interest to the authorities after the occasion on which he was arrested for attending a ceremony held by university students there is not a real chance he will suffer persecution if he returns to Iran.     

[21] These passages all serve to amplify the Authority's satisfaction that O's account was so implausible as to defy belief, and lead irresistibly to an inference of fabrication.  Equally importantly, they record the Authority's appreciation of the importance of the factor of allowing for cultural differences when drawing inferences of implausibility which underpins O's attack on its decision.  Nevertheless, Mr Simon Laurent, with characteristic skill, submitted that the RSAA's findings were not reasonably open to it on the evidence.  I shall now deal with each of his grounds of challenge.

(b)    Grounds of Challenge

(i)    Continuing to run business with Baha'i

[22] The Authority's third ground for its finding of implausibility provided the first ground of Mr Laurent's attack.  The RSAA concluded that it was highly improbable O would be willing to continue to operate a business with MR after being arrested and seriously mistreated on two occasions because of their association (paras 107-112).  It gave a number of reasons for this conclusion.  However, Mr Laurent submitted that the RSAA paid only lip service to its duty by relying on its evaluation based on seeing and hearing witnesses.  He submitted that the Authority acted unreasonably by substituting its own view of what would have been reasonable behaviour for O's account, which had the benefit of a basis upon the "awareness of social conditions, economics, personal emotion and a history of past dealings with Muslim-Baha'i businesses in Iran".  By contrast, Mr Laurent submitted the RSAA drew its own inferences, without any or proper basis in personal experience or factual evidence.  He complained that it applied what he called "a form of cultural arrogance".

[23] I do not accept this submission.  Axiomatically, those who sit on the Authority to determine appeals against RSB decisions are unlikely to have firsthand experience of the social, political and economic circumstances currently prevailing in a Muslim state.  The qualities of rationality, common sense and judicial knowledge which Authority members bring to the critical task of drawing inferences from an uncontradicted factual account cannot be devalued simply because they are determining the alleged effect of an alien political regime and unfamiliar religious and cultural norms upon an individual from that society.  That factor does not diminish their evaluative abilities or provide a presumptive springboard for impugning their decisions as unreasonable.  Authority members enjoy specialist expertise in this area of law and their analytical techniques must inevitably be supplemented by a body of knowledge acquired from an incremental familiarity with the reasons given by asylum seekers.  And, ultimately, in cases like these, explanations for certain conduct normally stand or fall on a robust evaluation of its plausibility judged according to norms universally applicable to human behaviour, taking account where appropriate of allowances for social, political and cultural differences.  But I  must stress that those differences must always be viewed within the factual context and should not be elevated into an immutable factor which of itself will necessarily influence the result of an appeal.

[24] Axiomatically, also, the Authority acts in an evidential vacuum in the sense that it does not have a competing or opposing factual base against which to measure an appellant's account.  It must rely upon an assessment of the credibility of his or her story in the absence of a comparative yardstick.  Again that factor does not disqualify the Authority from undertaking the very determinative function for which it is appointed.  Once it has followed that course, and weighed up all the evidence, a Judge asked to exercise powers of review cannot interfere unless satisfied that the decision, and the grounds on which it relied, was not reasonably open.

[25] In this case the Authority rejected a number of specific elements of O's account.  It is not my function to traverse each of its specific grounds of rejection.  It is sufficient to record that it was not unreasonable for the RSAA to reject O's account of his reasons for remaining in business with MR and Amin given his evidence about the extent to which the association imperilled his safety and liberty.  It was entitled to start from a premise of improbability.  Mr Laurent accepted that to succeed he would have to establish illogicality and perverseness.  I find no evidence of either failing on the Authority's part.

(ii)    Failure to confer with MR and Amin

[26] Mr Laurent's second ground of challenge amalgamated the first two grounds on which the Authority relied.  The RSAA found it was implausible that O would not inquire of MR about difficulties which he and his family had encountered including arrest or detention by the authorities and the reasons for it (paras 90-106).  The importance of this factor lay in O's knowledge that Baha'is were poorly regarded by the Iranian government.  Mr Laurent accepted that the RSAA referred to each of O's explanations for his admitted omission to make these inquiries.  But, he submitted, it unreasonably discounted his evidence because of a:

... lopsided treatment of a complex human situation, complicated further by the dynamics of a society quite different to that of New Zealand. [27] This argument was very similar to the first, based upon an alleged failure to make allowances for O's background and circumstances.  I have read all the transcript references to which Mr Laurent referred but they do not support his argument.  They recite O's various reasons for not making inquiries.  I repeat that the RSAA took all of them into account.  It had the benefit of seeing and hearing O, which I do not enjoy.  I cannot say that its identification of O's failure to inquire of MR and Amin about historical problems was an unreasonable ground for its decision or that its rejection of his explanation falls into the same category.  To the contrary, based on the record the Authority's finding was very reasonably open to it.  I dismiss this ground of appeal.

(iii)    Rejection of RF's evidence

[28] In support of his appeal O submitted a statement from RF, a Baha'i who has resided in New Zealand since fleeing Iran in 1986.  RF advised that many Muslim families discretely assist Baha'is out of sympathy for the injustice and oppression they face.  He said it was also common for Baha'is to go into business with Muslims; and that the official reaction to this practice is not uniform.  Furthermore, he said Iranians have a cultural aversion to inquiring of each other about problems which they have had with the regime for reasons of shame.  He said that Baha'i members would normally deny any inquiries about proselytising.

[29] Mr Laurent identified a separate ground of challenge based upon the Authority's rejection of RF's evidence (paras 97-99, 105-106).  I can deal with this challenge very briefly.  I do not read the decision as dismissing RF's evidence.  Instead the RSAA clearly rejected a submission from O's counsel, based in part upon RF's evidence.  The two are different concepts.  The Authority was not bound to rely on RF's statements about general practices, which, after all, would be of limited weight given that he fled Iran in 1986, to displace its particular rejection of O's account.  More fundamentally, on analysis RF's statement does not address the critical question of O's reasons for remaining in business with MR and Amin after the association attracted adverse official attention.  His evidence would have had little, if any, value in those circumstances.

(iv)    Mistake of fact

[30]
As I have noted, O's brother-in-law, L, who is the subject of a contemporaneous application for review, gave evidence at the appeal.  One of the grounds for the Authority's decision was its conclusion that L's claimed diffidence and lack of interest in the nature of his wife's friendship with MR's sister, who is also a Baha'i, was inherently implausible (paras 123-129).  In particular the RSAA rejected as implausible L's failure to ask his wife about her meetings with MR's sister, whether the sister had attempted to convert his wife, and whether MR's sister had had trouble with the authorities.  It also referred to the vagueness of L's evidence about the frequency of the meetings between the two women. [31] Mr Laurent submitted that the RSAA made two mistakes of fact.  I have read all the transcript references to which Mr Colbert referred in answer.  Mr Laurent relied on two brief passages.  He submitted that they showed a clear set of responses of an unequivocal nature.  Accordingly, he submitted, the Authority profoundly misunderstood passages about the internal dynamics of a marriage relationship implied in L's evidence.  In summary Mr Laurent submitted that any vagueness on L's part arose out of a lack of knowledge borne in turn by a lack of communication with his wife. [32] With respect to Mr Laurent, there is nothing in this point.  L's evidence had little, if any, determinative effect, whether viewed in isolation or in conjunction with other factors.  It was of marginal relevance to O's account.  I am satisfied that the Authority had an appropriate basis for rejecting it in any event.

Decision

[33] It follows from my rejection of each of Mr Laurent's grounds of challenge that O's appeal must fail.  I add that one ground for the RSAA's decision was its finding of material inconsistencies between his evidence given at the appeal hearing and on two previous occasions; once in a lengthy and detailed statement lodged with the RSB and later during an interview with the RSB officer.

[34] This conclusion may have been sufficient on its own to justify the RSAA's decision.  Unfortunately it left the finding in a vacuum. The Authority did not attempt to use the finding, as it would have been entitled, as a discrete basis for concluding that O was not a credible or reliable witness.  Of itself, such a finding would have provided a proper ground for dismissing the appeal.  Instead the Authority treated the inconsistency as supporting the different ground of implausibility of account (para 134).  I have treated the finding in that way.

(2)    "L"

(a)    RSAA's Decision

[35]
The Authority's decision was delivered on 30 September 2003, contemporaneously with its decision on O's appeal.  L's application for review will inevitably be affected by my decision on O's application for the reason that the RSAA did not accept L's evidence when given in support of O's appeal.  Indeed, L's counsel relied upon O's evidence at L's hearing and described the nature of the two appeals as 'inseparable'.  The Authority itself agreed that they were 'integrally linked'.

[36] In summary, L's account was as follows.  He is 31 years old.  He comes from Tehran in Iran.  His parents and siblings still live there.  His wife is currently in Malaysia.

[37] In 1993 L graduated from a tertiary institution with a bachelors degree in commercial management.  In 1995 he started work with an export company.  In 1997 he was promoted to the position of commercial manager.  His wife, F, worked for the same company. They met there and married in July 2000..

[38] L and F are Muslims.  F's brother is O.  Since childhood F had been friends with P, a woman from a Baha'i family.  P's brothers are MR and Amin, O's long time friends.  P attended L and F's engagement celebration and wedding.  L did not learn that P was a Baha'i until some two or three months later.  L then became concerned about F's friendship with a Baha'i.  He was aware of other Muslims who had encountered difficulties with authorities for this reason.  He knew that the authorities were likely to suspect that Muslims who associated with Baha'is were committing apostasy - that is, they were abandoning their faith and religious principles.

[39] L communicated to F his opposition to her friendship with P.  He asked her to see P less frequently.  L did not, however, ask F whether she had experienced any problems as a result of the friendship.  Nor did he discuss with her at that time whether she appreciated the risks of such a relationship.

[40] In 2000 F encountered difficulties when O returned to Tehran and started business there with MR and Amin.  The local Basiji started to harass F but not L directly.  However, L warned F to be careful, and repeated his suggestion that she should reduce her contact with P.

[41] P's father died in early 2002.  F attended the family's secret funeral ceremony with O.  L was unable to dissuade F from attending; she felt it was her duty to support F.  Both O and F were arrested.  The authorities held F overnight in a detention centre and questioned her about her relationship with P's family.  She was beaten and suffered bruising to her face and nose.  She was released the next day.

[42] Following this event L told his wife that she should not continue seeing P.  F and P did not meet again until the New Year in March 2002 when the former went to the latter's house.  Further contact continued including a visit from P and her mother to L and F's home in April 2002.

[43] Several days later the authorities searched L's house.  They assaulted L and F.  They questioned them about the practice of proselytising with Baha'is.  In May 2002 the authorities arrested F following a visit from P.  Again she was held in a detention centre overnight.  Shortly afterwards she had a miscarriage attributed to official mistreatment.

[44] In June 2002, while P and F were at work, L's landlord phoned to advise that the authorities had visited his home and were asking questions.  They had carried out another search.  After learning that the authorities were staking out their respective parents' houses, L and F went into hiding for three months.  During this time they learned of O's conflict with the authorities and of his departure from Iran.  They learned also from L's parents that the authorities' interest in them had apparently abated.

[45] In October 2002 L returned to Tehran to verify whether it was safe for he and F to live there.  As a result he learned that the authorities had not made any visits for 45-50 days.  Shortly afterwards L learned that he and his wife had been dismissed from employment for "political reasons".  Two days later L and his father were arrested by the authorities and taken to a detention centre. They were accused of associating with Baha'is and assisting them to proselytise.  L was also accused of apostasy.  He was physically mistreated and suffered a serious injury to his arm.  L was released from detention the next day on condition that he promise to locate F, P, MR and Amin.

[46] L returned immediately to the rural village where he and his wife had hidden for three months.  F was still there.  They decided to leave Iran for reasons of safety.  They travelled by boat to Dubai and then flew to Malaysia.  At that time F advised L that P and her family had been proselytising.  L concluded F was obviously affected by her contact with the Baha'is.

[47] L last saw F in Malaysia in March 2003.  She was then due to depart for Singapore.  He has not spoken directly with her since then.  On 12 March 2003 L arrived in New Zealand, travelling on a false passport.  Two days later he applied for refugee status.

[48] Since arriving in New Zealand, L has been in contact with his parents in Tehran.  They have advised him that the authorities have continued to search for L and F since they left.  The authorities have made repeated visits to his parents' house.  On one occasion the authorities detained and interrogated L's father for about three days.  Recently L's parents have been reluctant to provide him with further information.  He infers that they have been subjected to ongoing harassment from the authorities.

[49] L fears that if he returns to Iran he will be seriously mistreated by the authorities because of the activities of F and O.  He also fears serious mistreatment because he failed to comply with the terms of his own conditional release from detention.

[50] In orthodox fashion the Authority then identified the two principal issues: first, on the facts as found was there a real chance of L being persecuted if returned to Iran; and, second, if so, is there a Convention reason for that persecution?  It then assessed the appellant's case, identifying credibility as the key issue.  The RSAA summarised its findings in these terms:

[64]    The principal issues fall to be determined in this case by an assessment of [L's] credibility.  Credibility is the critical issue in this case.

[65]    The Authority finds that the basic account given by [L] is wholly lacking in credibility.  In particular, the Authority rejects the claims that the wife and [L] encountered difficulties because of their association with P and the Bahai family, and that it was necessary to flee Iran as a result of such difficulties.  Similarly, the Authority does not accept that [O] was in conflict with the authorities, and that this contributed to [L's] problems.

[66]    The Authority finds a number of the critical aspects of [L's] claim to be implausible.  In addition, there was a major inconsistency in the evidence for which no adequate explanation was given.  Taken cumulatively, the concerns about [L's] evidence lead to the conclusion that the account given is a fabrication.

[67]    The major concerns the Authority has about the plausibility of the appellant's claims arise from some fundamental gaps in his knowledge about crucial elements of the claim.  As a matter of common sense and ordinary human experience, the Authority would have expected [L] to have been in a position to provide us with information on some of these issues, had the experiences actually been lived.  None of the explanations put forward as to why [L] did not know of these matters were at all convincing.
[51] The Authority later observed:[122]    It is the cumulative effect of the concerns the Authority had about [L's] evidence which has led us to reject his claim as lacking in credibility.  In particular, it is the overall combined effect of the implausibilities that lead us to this finding.  A number of the implausible accounts, when viewed in isolation, might not in themselves have been decisive.

[123]    This is not a case where the Authority could properly extend to [L] the benefit of the doubt, and thus accept his account as credible.  Our concerns about credibility are too numerous and do not leave us in any doubt.
The RSAA then found that there was no tenable basis for a valid claim by L to refugee status.  As a consequence it answered both of the determinative issues in the negative and dismissed L's appeal.  It found that he was not a refugee (paras 130-131).

[52] As with O, Mr Laurent subjected L's decision to a sustained challenge, much of it on the same or similar grounds to O's application.  He relied on four grounds, the last embracing seven findings of implausibility.  I shall deal with each.

(b)    Grounds of Challenge

(i)    Inconsistent evidence

[53]
In contrast to its decision on O's appeal, the Authority relied first upon material inconsistencies in L's evidence between his original written statement to the RSB on 9 April 2003, a little less than a month after his arrival, and his evidence separately given at both appeal hearings.  In his written statement L asserted that the Basiji began to harass F in the area in early 2002, following the death of P's father.  By contrast, in evidence given in support of O's appeal L said that F told him before they were married, in July 2000, that the local Basiji were harassing her because of the friendship and accusing her of converting to the Baha'i faith.  Separately, at the hearing of his own appeal, L said that F's harassment began when O returned to Tehran from rural Iran in early 2001, about a year before P's father's death (paras 69-78).

[54] Mr Laurent submitted that the Authority had overstated or exaggerated the position.  He referred to two passages from the transcript to support a submission that the inconsistencies were not as striking as the RSAA found.  Mr Laurent argued that a finding of major inconsistencies was not warranted given demonstrable uncertainties in L's evidence, whether arising through misunderstanding or misinterpreting a language barrier.

[55] I have since read all passages from the transcript covering L's answers to questions from the Authority, identifying and seeking explanations for the inconsistencies.  I am satisfied that it had a proper basis for rejecting L's explanations.  I agree with Mr Colbert that the record clearly shows inconsistencies which were significant and deserved their characterisation as major.  Consequentially, there was no mistake of fact in the RSAA's decision.

[56] Again, though, as in O's decision, the Authority did not treat the inconsistencies, as it was entitled, as a foundation for concluding that L was not a credible witness whose evidence justified rejection on this ground alone.  Plainly the RSAA had a proper basis for taking this step.  Its failure to differentiate the effect of this adverse character finding from a discrete inferential finding of implausibility of L's account is confusing.  I can only assume that the Authority was meaning to make an adverse character finding unrelated to the separate question of the inherent implausibility of O's story.  It appears as though the Authority was meaning to say that it did not believe his evidence.  If that is the case, it would spell an immediate and absolute end to this challenge.  However, in case my assumption is wrong, I must consider the other grounds of Mr Laurent's challenge.

(ii)    Plausibility more significant than consistency

[57]
Within the rubric of its finding about inconsistent evidence, the RSAA recorded a submission from L's counsel that there was "an overwhelmingly high degree of consistency in relation to the evidence" given on both appeals.  The use of the word 'in relation to the evidence' is ambiguous.  However, on reading the passage as a whole, I am satisfied the RSAA was referring to consistencies in the evidence of both appellants (para 77).  It then observed that consistency of accounts was of little use where L and O could not provide information on crucial subjects.  It was more significant that gaps in the evidence of each led to conclusions of implausibility.

[58] Mr Laurent used this passage to mount an argument that the RSAA's approach was 'logically insupportable' in preferring a collection of implausible aspects ahead of 'accounts which hold together almost impeccably'.  With respect, I have struggled to follow the genesis of this submission.  The Authority was saying no more than that consistency of accounts was of little use where both suffered from the common thread of implausibility.  This argument does not assist L's application.

(iii)    Cumulative implausibilities

[59]
The RSAA identified seven discrete implausibilities in L's account.  Mr Laurent challenged six findings as unreasonable. However, he properly concedes that the seventh, listed in the Authority's decision as the fourth, cannot be impugned.  He accepted that it was allowable on the evidence.

[60] The exempted finding is that in June 2002, when L and F were advised by fellow employees that the authorities were searching for them, they seriously contemplated as a first option going to F's parents' house to hide or to seek assistance (paras 93-95).  The Authority held that the maternal parents' home would have been the last place which the couple could seriously have contemplated as offering a safe refuge, given the authorities' recent search and its physical location close to P's family and the mosque.  The RSAA dismissed L's explanation of the couple's proposal in forthright terms.  Having done so, and having rejected as inherently implausible L's evidence on O's appeal about this diffidence and lack of interest in the nature of F's friendship with P, and having identified major inconsistencies between his evidence on appeal and other statements, I am satisfied that the Authority would have been acting perversely in accepting his account of other key elements as plausible.

[61] In these circumstances I do not intend to subject each of the six remaining findings of implausibility to careful analysis. All of them relate to and derive from the RSAA's rejection of L's evidence of his state of inadequate knowledge of previous problems which she had encountered because of her relationship with P (para 84), including his failure to make inquiries about very significant issues for a long time (paras 85-87), the fact that he did not learn of F's friendship with P until two or three months after their wedding (paras 88-92), and his ignorance of P's proselytising to F and others until they had escaped Iran and reached Malaysia (paras 107-113). Without meaning any disrespect to Mr Laurent's careful arguments to the contrary, I have no doubt whatsoever that these findings were reasonably open to the RSAA on the evidence.  In blunt terms L's story has a ring of absolute implausibility about it and, even if it was true, in my judgment it fell well short of constituting sufficient evidence of a real chance that L would be persecuted if he returned to Iran.

[62] As with O's appeal, Mr Laurent mounted a sustained attack upon the RSAA's decision.  He submitted that the sheer scale of implausibilities found by the Authority was evidence that it fundamentally applied itself to the facts.  He submitted that it indicated a predisposition to find a means to disbelieve and ultimately decline the appeals.  However, Mr Laurent disclaimed any suggestion of bias.  In this respect he was wise.

[63] I am not satisfied that any of the RSAA's findings of implausibility of L's account were not reasonably open to it or that it was guilty of demonstrable errors of fact.  To the contrary, I am satisfied that the Authority acted logically in drawing adverse inferences from L's account.  It follows that I dismiss L's application also.  By agreement between the parties there is to be no order as to costs.

[64] I wish to express my appreciation to both counsel for their skill and industry in arguing these applications. 
   


Solicitors for the plaintiffs: Laurent Law (Auckland)
Solicitors for the defendants: Meredith Connell (Auckland)

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