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Sakran v. Minister of Immigration

Publisher New Zealand: High Court
Author High Court of New Zealand
Publication Date 22 December 2003
Citation / Document Symbol CIV 2003-409-001876
Cite as Sakran v. Minister of Immigration, CIV 2003-409-001876, New Zealand: High Court, 22 December 2003, available at: http://www.refworld.org/docid/40cec2f87.html [accessed 1 October 2014]
Comments 18 November 2003; 22 December 2003.
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.

Sakran v Minister of Immigration
High Court Christchurch CIV 2003-409-001876
18 November 2003; 22 December 2003
William Young J

Credibility findings – errors of fact – materiality – whether serious errors of fact a breach of the rules of fairness


Judicial review – mistake of fact – materiality – whether serious errors of fact a breach of the rules of fairness

Refugee Status Appeals Authority – errors of fact in decision – materiality – whether serious errors of fact a breach of the rules of fairness


Refugee Status Appeals Authority – credibility assessment – circumstances in which credibility not critical to the claim to refugee status

The plaintiff, a Coptic Christian and a Sudanese national, left Sudan in 1989 following a coup d'état. He lived in Kenya until 1998 when he travelled to the Republic of South Africa and from there to New Zealand. His refugee claim was based on his religion and on his wish to avoid conscription in circumstances where he would be pressured to convert to Islam. In the course of making an adverse credibility finding the Refugee Status Appeals Authority (RSAA) found that in 1997 the plaintiff had returned to Sudan. This finding was based on stamps in the plaintiff's passport which the RSAA said the plaintiff had been unable to explain. The RSAA also found that the plaintiff had concealed the fact that he had been registered as a refugee claimant while in Kenya. As to the first point, the transcript of the hearing established that the plaintiff had not in fact been questioned on this issue by the RSAA and was thus never given the opportunity to advance an innocent explanation for the re-entry stamps. As for the second point, the refugee application in Kenya had in fact been disclosed to the refugee status officer at the time of the initial interview and indeed was referred to in the decision of the refugee status officer which was the subject of the appeal to the RSAA.

Held:

1 It was clear that in the two respects complained of by the plaintiff there were serious and material errors of fact and an associated breach of natural justice on the part of the RSAA (see paras [34] & [50]).

Observations:

1 There seemed to have been an over-emphasis on the credibility of the plaintiff. His case did not turn on anything special to him. He did not allege that he was particularly at risk of being persecuted in Sudan for reasons specific to him. Rather, he asserted that he belonged to a group (conscription-avoiding Christians) exposed to the risk of being persecuted. Obviously the credibility of his assertions as to his Christianity and that he had left Sudan to avoid conscription were fundamental to his claim to refugee status. But once those assertions were accepted (as the RSAA had) it was not obvious why his credibility as a whole was critical to his claim to refugee status. A conclusion that he was not a credible witness did not in itself justify the conclusion that his persecution as a Christian conscription-avoider was unlikely. The likelihood of such persecution was best assessed by reference to the objective evidence (the country information). If a risk of being persecuted could be shown to be substantial, it would be difficult to resist the plaintiff's contention that he was in fear of such persecution; this despite a possible tendency on his part to embellish his evidence (see paras [42] & [43]).


2 In the circumstances, the court may have been receptive to an argument, had it been advanced, that the focus on credibility in this case diverted the RSAA from the considerations which were in fact primarily relevant to the plaintiff's claim to refugee status (see para [44]).


Application for review allowed

Cases referred to

Nil

[Editorial Note: As to the Observations, the Court referred with approval to Professor James C Hathaway, The Law of Refugee Status (Butterworths, 1991) at 3.1.4 and 3.2.2. Of particular significance is the statement by Professor Hathaway at p 86 of the text that even clear evidence of a lack of candour does not necessarily negate a claimant's need for protection.


To the extent that the judgment at [41] and [43] refers to "well-founded fear" as suggestive of a subjective state of mind, the RSAA has explicitly rejected the argument that a refugee claimant is required to establish both subjective fear as well as an objective risk of harm. The Refugee Convention requires only that the objective risk be established. See for example Refugee Appeal No. 70074/96 (17 September 1996); [1998] NZAR 252, 260-263 and Refugee Appeal No. 72635/01 (6 September 2002); [2003] INLR 629 at [56] & [57]. These authorities may not have been brought to the attention of William Young J.]


Counsel
JN Williamson for the plaintiff
IC Carter for the defendant


WILLIAM YOUNG J

INTRODUCTION

[l] On 26 May this year the Refugee Status Appeals Authority dismissed an appeal by the plaintiff from the decision of a refugee status officer determining that he was not a refugee.

[2] The plaintiff now challenges the decision of the Refugee Status Appeals Authority by way of review under the Judicature Amendment Act 1972.

STATUTORY SCHEME

[3] New Zealand is a party to the United Nations Convention Relating to the Status of Refugees and the 1967 Protocol to that Convention. I will refer to them collectively as the "Convention".

[4] Part VIA, Immigration Act 1987 gives effect to New Zealand's obligations under the Convention. Under this part of the Act, claims to recognition as a refugee are dealt with by departmental employees who are designated as refugee status officers. Their primary function is to determine whether claimants are refugees within the meaning of the Convention.

[5] For the purposes of the present case, it is sufficient to note that the Convention defines a "refugee" as including a person who:-


... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . . .

[6] Where a refugee status officer has decided not to recognise a particular claimant as a refugee, that claimant has an entitlement to appeal to the Refugee Status Appeals Authority by reason of s 129M of the Act.

[7] There is no right of appeal from a decision of the Refugee Status Appeals Authority. But there is, of course, a right to challenge a decision of that body by way of application for review under the Judicature Amendment Act 1972.

FACTUAL BACKGROUND – GENERAL


[8] The plaintiff is now 42. He is a Sudanese national and he lived in Sudan until 1989.

[9] Sudan has been wracked by political instability since the late 1950s and, since the early l980s, by civil war.

[10] These difficulties have been driven by tensions associated with racial and religious differences. There are two main racial groups within Sudan, Arabs who live predominantly in the North and Africans who tend to live in the South. Most of the Arab population is Muslim whereas Christianity is much stronger in the South.

[11] In the early 1980s aspects of the Shari'a were adopted. This was a contributing cause to the current civil war. Between 1985- 1989 a government led by Sadiq al-Mahdi was seeking to move Sudan towards multi-party democracy and the replacement of the Shari'a with a new legal code. A June 1989 coup led by Brigadier Omar Hassan Ahmad al-Bashir (now President al-Bashir) resulted in a government which included members associated with or sympathetic to Islamic fundamentalism.

[12] The Sudanese Government regards Islam as the state religion and despite controversy, to say the least, the Shari'a remains the basis for law in the country. Material produced in relation to this litigation shows that there is discrimination against and sometimes persecution of Christians in Sudan, particularly in government controlled areas of the South and also in relation to foreign missionaries and foreign religiously-orientated organisations. The government is said to be less restrictive of the activities of Christian organisations which have historically had a presence in Sudan, including Coptic Christians.

[13] A system of conscription has been in place since 1972. This system was refined in 1992 albeit that, at least for some time, enforcement was patchy. The material before the refugee status officer indicated that by May 1995 only 26,000 of some 2,500,000 men liable for conscription under the 1992 legislation had reported for duty. The material I have seen suggests that recently enforcement has been more rigorous. Students who have not completed their national service cannot obtain an exit visa and will not be issued with examination certificates.

[14] Conscripts come from Christian minorities in the South and those living in the North as well as the Arab majority population in the North. Christians who are recruited are often humiliated on account of their religion and also put under pressure to convert to Islam.

FACTUAL BACKGROUND – THE PLAINTIFF'S CLAIM TO REFUGEE STATUS

[15] The plaintiff's claim to refugee status arises in this way.

[16] He is a Coptic Christian. He says that he went to Kenya in early 1989 at a time when conditions for Christians in Sudan were reasonably good. He claims that by the time he returned to Sudan later in 1989 there had been a change of government (presumably a reference to the al-Bashir coup) and that conditions for Christians had become more difficult. He felt this when he lost his job as a result of what he says was anti-Christian discrimination by the new Muslim owner of the factory in which he had been employed. He was also, according to him, not inclined to serve in the Sudanese armed forces. On his evidence he left Sudan again after paying a significant bribe at the airport and returned to Kenya.

[17] There is, unfortunately, some confusion as to the evidence. There is no official proof of the dates of the plaintiff's movement between Sudan and Kenya in 1989. The dates which the plaintiff has nominated suggest that he returned to Kenya before the al-Bashir coup. Another possibility, of course, is that the plaintiff has simply got dates of his trips to Kenya wrong.

[18] The plaintiff lived in Kenya until June 1998. Between 1989 and 1998 he left Kenya twice to travel to Egypt (on one occasion to marry his Egyptian wife). As will become apparent, the Authority would appear to have concluded that the plaintiff also travelled to Sudan on one occasion; this in 1997 to renew his passport. I will discuss this shortly.

[19] While the plaintiff was living in Kenya he applied to the United Nations Human Rights Committee for refugee status. This was in March 1992. He was placed in a camp but found the living conditions there unacceptable and left.

[20] In June 1998 the plaintiff left Kenya and travelled to South Africa. He left South Africa in early July 1998 and travelled to New Zealand. In August 1998 he applied to be recognised as a refugee.

THE DECISION BY THE REFUGEE STATUS OFFICER

[21] The refugee status officer issued a decision declining the plaintiff's application for refugee status on 12 April 2002. This decision proceeded on what, to me, was a surprising basis.

[22] In the course of the interview by the refugee status officer, the plaintiff was cross-examined as to his Christian beliefs. He was asked to identify his "favourite passage from the Bible". He was asked also to identify one of his "favourite stories from the Bible". Having said that he had attended mass recently he was asked to say what the priest had been talking about. The plaintiff's responses to these questions were recorded in the decision of the refugee status officer in these terms:-


... As such, this line of enquiry did not uncover any evidence in favour of Mr Sakran's purported Christian beliefs. On the contrary, it may be commented that the evidence suggested that Mr Sakran was dishonest and evasive, traits that one would not expect of a person holding strong Christian beliefs. To enlarge on this point, Mr Sakran claimed strong beliefs, but could not provide any evidence about the Bible, and, instead, forwarded excuses as to why he should not be expected to answer the broadly stated questions put to him. Further, when asked about what the priest had said at a
recent mass, Mr Sakran did not pause even momentarily before responding that he did not know. This suggests that he did not attend mass at all, and was, again, conducting himself in a dishonest manner. This evidence points against Mr Sakran being a Christian.

[23] The refugee status officer also rejected the plaintiff's claim that any attempts had been made by the Sudanese Government authorities to conscript him into the army. Having referred to some evidence which might be thought to point to the plaintiff being an economic migrant, the refugee status officer then concluded:-


In summary therefore, it is concluded that Mr Sakran is not a Christian as claimed, and that there were no attempts made by Sudanese authorities to physically conscript him. It is also concluded that Mr Sakran's motives for coming to New Zealand relate more to that of an economic migrant than that of a refugee.

...

For the reasons set out above, it is considered that there is not a real chance that Mr Sakran will be persecuted if he returns to Sudan now. His fear of persecution is not therefore considered to be well-founded.

THE PROCEEDINGS BEFORE THE REFUGEE STATUS APPEALS AUTHORITY

[24] The plaintiff's appeal to the Refugee Status Appeals Authority was heard on 22 August 2002. In a decision delivered on 26 May 2003 that appeal was dismissed. Two members who comprised the Refugee Status Appeals Authority for the purpose of this appeal conducted an informal hearing which involved the plaintiff giving evidence on oath and being interviewed by the members of the Authority. The appellant was represented by counsel.

[25] In the course of the hearing the Authority made it clear that it accepted that the plaintiff was a Christian. He was, however, questioned extensively on his general narrative.

[26] The key findings of fact made by the Authority were as follows:-


1. The plaintiff's claim that the Sudanese Government had changed by the time he returned from Kenya to Sudan in 1989 was "patently false". This was because, on the dates nominated by the plaintiff, he returned to Sudan before
the 30 June 1989 Al-Bashir coup.

2. The plaintiff had returned to Kenya before 30 June 1989 "in order to avoid conscription".

3. The Authority went on to say:-

It follows, therefore, that the Authority does not accept that the cessation of the appellant's employment was as a result of his religious faith or his political opinion. The Authority does not accept that his departure from Sudan was driven by his religious faith or his political opinion. The Authority does, however, accept the appellant's evidence that he left Sudan so as to avoid conscription into the army.

4. The Authority was doubtful as to the veracity of his account as to how he came to leave the Sudan:-

The Authority found it unusual that the appellant had no recollection of how much money he had to pay to secure his unlawful exit from Sudan. The lack of this, or any other, detail about his departure cast doubt on the veracity of this part of the appellant's account.

5. The Authority also did not accept the plaintiff's claim as to how he came to renew his Sudanese passport. This is what the Authority said:-

The assertion that the appellant had been able to renew his passport with the assistance of a friend in the Sudanese embassy in Nairobi was tested by the Authority. It is clear on the face of the renewed passport (which was a replacement for an earlier passport) that it had been issued in Khartoum on 30 November 1997. A re-entry pass to Kenya dated 19 December 1997 and an entry visa stamp to Kenya at Nairobi of the same date was not able to be explained by the appellant. He denied having left Sudan or re-entered Kenya at this time but was unable to explain the stamps on his passport. It appears to the Authority, from its examination of the passport, the appellant had travelled to Sudan to renew his passport at Khartoum and had then returned to Nairobi where his entry permit was further extended until November 1998. It appears plausible to the Authority from its examination that the more likely scenario, than that of the appellant's evidence, was that a friend in Nairobi had assisted him with the renewal. The version of events recounted by the appellant in this regard lacked any detail and, when tested, the appellant was
unable to explain the apparent contradictions between the passport itself and the evidence he was giving.

6. The Authority also referred to the fact that the plaintiff had undoubtedly given incorrect evidence as to the number of times he had visited Egypt:-

The appellant claimed to have had only one visit to Egypt during the period that was material to his refugee claim. He claimed that the only visit was for the purpose of his marriage in July 1995. When
the visitor's visa was put to the appellant he maintained that, although he had wanted to go, he had not done so. He continued to maintain that he had made only the one visit to Egypt at any material time. When the stamps showing exit and entry to Egypt were put to the appellant he conceded that he had gone to Egypt to visit his wife but had forgotten about this trip. The Authority finds this to be disingenuous and concludes that the appellant was deliberately misIeading the Authority with his earlier evidence.

7. The Authority then dealt with the plaintiff's evidence about the nature of his marriage and the arrangements which he and his wife have in terms of travel arrangements, his intentions when he went from Kenya to South Africa and how this trip was funded.

8. The Authority went on to discuss the position as to a prior application for refugee status:-

The appellant told the Authority that he had never previously made an application for refugee status. He then modified this evidence and said that he had made an application in Kenya. He explained to the Authority that he had been sent to a refugee camp outside Nairobi but had run away from there because "it was not fit for a human being". He showed the Authority a document dated 12 March 1992 which recorded that the appellant had applied for refugee status but which was not, in itself, a grant of refugee status. ... Despite previous requests for information about where the appellant had lived while in Kenya he had not disclosed to the RSB, or to the Authority, that he had been in a refugee camp. The Authority finds the withholding of this information unsatisfactory especially so because it related to an earlier effort to obtain refugee status approximately three years into his residence in Kenya and disturbed the narrative that the appellant had previously provided. He could provide no explanation as to why this information had not been disclosed earlier.

9. The Authority also addressed the plaintiff's contention that he will face persecution if he returned to Sudan given his departure to avoid conscription:-

It was the appellant's evidence that the military continued to look for him for conscription. The last time they had done so had been the beginning of 2002. According to the appellant's evidence to this Authority, his mother had told him that people had come to the house looking for him, once a year. He agreed that this had happened every year since his departure thirteen years earlier. When it was put to the appellant that the National Service Law 1992 only made men aged 18 – 33 liable for conscription and that he was now outside of that age bracket, he commented that this did not matter they would still conscript older men. Further when country information which suggested that although a law requiring conscription had been in force from 1972 but it did not begin to be enforced until 1992 (ie after his departure from Sudan) and that of the 2,500,000 men eligible for conscription between 1992 and May 1995, only about 26,000 conscripts had reported, he nevertheless maintained his position that his own failure to report would result in persecution should he return to Sudan. The Authority finds it fanciful that he would be at risk of persecution 13 years later for failing to conscript when over 90% of the population eligible for conscription had done likewise. The Authority notes, too, that his statement to the RSB was the that military authorities had come to his mother's house on only one occasion and that this was about one month after he left for Kenya. The appellant could not explain this discrepancy in his evidence, but maintained at the appeal hearing that they had come once a year since he had left. The Authority considers this to be an example of the appellant embellishing his claim.

10. Against that background the Authority expressed its conclusion in these terms:-

Taking these factors cumulatively, the Authority can find no credible basis for the appellant to have a well-founded fear of being persecuted. ... While the Authority accepts that the civil war has not been resolved and is still in existence, that fact by itself is not significant here in terms of an application for refugee status as there is on the facts, no credible linkage to any of the Convention reasons.

THE ARGUMENT FOR THE PLAINTIFF

[27] The plaintiff's arguments focussed on two aspects of the decision of the Authority:-


1. The alleged return to Sudan for the purpose of passport renewal in 1997;

2. The plaintiff's "failure" to disclose that he had been registered as a refugee claimant while in Kenya.

[28] In relation to the first point the plaintiff's evidence in this Court (by affidavit) was that the re-entry pass to Kenya dated 19 December 1997 and an entry visa to Kenya at Nairobi of the same date were simple endorsements in his passport which
merely verified his lawful status in Kenya. He denied that he had been required to return to Sudan to renew the passport. There is no stamp indicating that the plaintiff left Sudan on or about 19 December 1997.

[29] So the plaintiff says that his evidence to the Authority as to renewing the passport from Kenya was accurate. He complains about the rejection of his evidence, and as well, in relation to the renewal of the passport point, an associated breach of the rules of natural justice. This is because, despite the reference in the Authority's decision to the plaintiff's inability "to explain the stamps on his passport", a perusal of the transcript makes it clear that the plaintiff was not in fact questioned on this issue by the Authority and was thus never given the opportunity to advance an innocent explanation for the re-entry stamps.

[30] On the second point, the "failure" to refer previously to the application for refugee status made while the plaintiff was in Kenya, the plaintiff's position was that the Authority was simply wrong. The application was in fact disclosed to the refugee status officer at the time of initial interview on 27 February 2002 and indeed this is referred to in the decision of the refugee status officer which was the subject of the appeal to the Refugee Status Appeal Authority.

ARGUMENT FOR THE FIRST DEFENDANT

[31] For the first defendant Mr Carter noted that the key passages from the decision of the Authority in relation to the 1997 renewal of the passport were not clear in their meaning. He sought to argue that the Authority was merely postulating a hypothesis as to how the appellant came to renew his passport different from that advanced by the plaintiff. So his argument, in effect, was that there was no adverse finding of fact made against the plaintiff on this point.

[32] Mr Carter accepted that the Authority was wrong in relation to its conclusion that the appellant had not previously disclosed his application to the United Nations.

[33] Mr Carter's primary argument was that such errors as were made by the Authority were not material to its decision.

DISCUSSION

Were there mistakes of fact and a breach of the rules of natural justice


[34] I think it is perfectly clear that in the two respects complained of by the plaintiff there were serious errors of fact and an associated breach of natural justice on the part of the Authority.

[35] I accept that there are ambiguities in the way in which the Authority has expressed its conclusions on the manner in which the passport was renewed. But it is important to note that the fundamental thesis of the Authority was that the plaintiff was "a vague, hesitant and mobile witness ... who "moulded his evidence and changed his evidence in an effort to explain earlier inconsistencies". In that context, the Authority's comments on the manner in which the passport came to be renewed were plainly adverse to the plaintiff.

[36] As well, it is clear enough that there was a breach of the rules of natural justice very much for the reason complained of by the plaintiff. This is because, contrary to the way in which the decision was couched, the plaintiff was not given an opportunity to comment on the re-entry stamps when he was giving evidence.

[37] As indicated, Mr Carter for the first defendant acknowledges that the Authority was wrong in relation to the second of the two matters complained of by the plaintiff.

Materiality – general

[38] Does this make any difference?

[39] It is trite that a decision may still be regarded as valid for review purposes despite the decision maker having made errors of fact or, in relation to a particular issue, not having complied with the rules of natural justice. So this is why Mr Carter sought to argue before me that the errors made by the Authority could not fairly be regarded as material in the relevant sense given the overwhelming rejection by the Authority of the plaintiff's evidence.

[40] I confess to regarding this issue as troubling. One of my difficulties, however, is that I am far from persuaded that the plaintiff's credibility was as fundamental to his particular claim to refugee status as the refugee status officer and the Authority seem to have believed.

Credibility as the fundamental consideration

[41] It is often said that the first task of a decision-maker assessing a claim to refugee status is to determine the credibility of the claimant. Frequently claims to refugee status turn on whether events as alleged by the claimant have in fact actually occurred. It is in the nature of refugee applications that there will often be an absence of independent corroborative evidence and this means that such claims will often stand or fall on the credibility of the evidence advanced in support. Since such evidence usually only comes from the claimant, the credibility of the claimant is, often enough, fundamental. As well, a subjective element seems to be implicit in the
concept of a "well-founded fear". Evidence as to the subjective state of mind of a claimant for refugee status can, practically, usually only come from the claimant.

[42] Notwithstanding these considerations, my concern with this case, from the outset, was that there seemed (to me at least) to have been an over-emphasis on the credibility of the plaintiff. I am conscious, however, that it is almost axiomatic in refugee cases that the credibility of the claimant is fundamental and this led me to wonder whether my doubts about the case were well placed.. Having read a little more widely, I am now left with the view that my concerns on this score are not entirely heretical, see for instance Hathaway, The Law of Refugee Status, at paras 3.1.4 and 3.2.2.

[43] The present case does not turn on anything that is special to the plaintiff. In other words, the plaintiff does not allege that he is particularly at risk of persecution in Sudan for reasons that are specific to him. Rather, he asserts that he belongs to a group (ie conscription-avoiding Christians) who are exposed to the risk of persecution. Obviously the credibility of his assertions as to his Christianity and that he had left Sudan to avoid conscription were fundamental to his claim to refugee status. But once those assertions were accepted (as the Authority did accept them) it is not obvious to me why his credibility, as a whole, was critical to his claim to refugee status. A conclusion that the plaintiff is not a credible witness does not in itself justify the conclusion that his persecution as a Christian conscription-avoider is unlikely. The likelihood of such persecution is best assessed by reference to
objective evidence (or, as it is described in this area of the 'law, "country information") as to the likelihood of such persecution. If there is, on the basis of such material, no reasonable basis for fearing persecution, then the plaintiff's claim would rightly fail; this despite his own assertions as to his subjective assessment of the risk. But, if on the other hand, a risk of persecution can be shown to be substantial, then it would be difficult to resist the plaintiff's contention that he is in fear of such persecution; this despite a possible tendency on his part to embellish his evidence.

Materiality – revisited

[44] As will be apparent from what I have said, I am troubled by the heavy emphasis placed by the Authority on the appellant's credibility (or lack of credibility); this to the point that I may have been receptive to an argument, had it been advanced, that the focus on credibility in this case diverted the Authority from the considerations which were in fact primarily relevant to the plaintiff's claim to
refugee status.

[45] Accepting, however, for the moment and for present purposes the logic of the Authority's approach, how material were the errors of fact and breach of natural justice which I have identified?

[46] I accept that there were a number of reasons why the Authority was unimpressed by the credibility of the plaintiff. On that basis, it might be thought to be likely enough that the Authority would have reached the same view as to the plaintiff's credibility irrespective of the problems associated with the renewal of the passport and the application for refugee status in Kenya. This has given me the
occasion to pause carefully on this aspect of the case.

[47] The conclusion I have reached is that the approach the Authority took in relation to the renewal of the passport must be regarded as material.

[48] If it was truly the case that the plaintiff had returned to Sudan in late 1997 then this not only would be relevant to his credibility but would also impeach the fundamental thesis of the plaintiff's argument that he has been in such well-founded fear of persecution that he cannot reasonably be required to return to Sudan. If he had sufficient confidence to return to Sudan in 1997 and was able to obtain a passport from the authorities there, this might be thought to suggest that he is not likely to be persecuted in Sudan. So if the plaintiff truly had returned to Sudan in late 1997 to renew his passport, this cast a heavy shadow over his claim to refugee status.

[49] The issue whether the plaintiff had made a claim to refugee status while in Kenya is of less significance. This could be relevant only to his credibility. If the error as to this had stood alone, I might not have seen it as material. However, it does not stand alone and it is of at least some significance in a cumulative sense.

CONCLUSIONS

[50] For the reasons given, I am satisfied that there were errors of fact of a substantial nature and an associated breach of the rules of natural justice which cumulatively and particularly in relation to the suspected 1997 return visit to the Sudan were material to the conclusion by the Authority that the plaintiff's appeal ought to be dismissed.

[51] In those circumstances, the application for review is allowed. The decision of the Authority is set aside. The case is remitted to the Refugee Status Authority for reconsideration. The plaintiff is entitled to costs on a 2B basis.

Solicitors for the plaintiff: Kundig Associates (Christchurch
Solicitors for the first defendant: Crown Law Office (Wellington)

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