Refugee Appeal No. 2017/94 Re DRD

REFUGEE APPEAL NO. 2017/94
DRD
AT AUCKLAND

Before:	R P G Haines (Member)
Solicitor for the Appellant:	J Petris
Date of Decision:	23 August 1996

INTRODUCTION

The appellant is a Fiji Indian and is a citizen of the Republic of Fiji.

The appellant arrived in New Zealand on 28 April 1991. His application for refugee status was not lodged until 11 August 1992. The essence of the claim was that he faced a real chance of serious harm at the hands of a group of ethnic Fijians with whom he was in dispute over civil matters, a dispute which escalated when one of the Fijians was killed by a relative of the appellant during an altercation. Animosity towards the appellant personally remained when a subsequent criminal prosecution against his relative resulted in an acquittal.

Following an interview, the appellant's refugee application was declined by the Refugee Status Branch by letter dated 30 September 1993.

By letter dated 13 October 1993, the appellant, through an immigration consultant, lodged an appeal to this Authority. Owing to the backlog of cases then before the Authority, it was not possible to allocate a date of hearing for some time.

The appeal was eventually heard by the Authority on 8 September 1994. The appellant appeared in person together with his immigration consultant. Following regrettable delay, the Authority's decision was not published until 24 May 1996. The appeal was dismissed on the grounds that there was no Convention reason for the harm feared by the appellant. That is, the harm feared by the appellant was not for reason of his race, religion, nationality, membership of a particular social group or political opinion. The Authority's finding in this regard was as follows:

" However, the appeal must fail because of the need to establish, pursuant to principle issue 4, a nexus between a Convention reason and the persecution complained of. It is our view that the evidence establishes that the original occupation of the hotel which led to the subsequent altercation and the death of [BB] was brought about as a result of one or more of the following factors:

(a)Controversy over timber cutting rights.

(b)Local dissatisfaction over hotel management prosecuting non-paying customers.

(c)A desire by certain locals to consume alcohol without paying for it.

Although the first two factors may have been the prime initiator of the original occupation, it is apparent that the third factor relating to the pillaging of the hotel liquor supplies was probably significant.

However, the overwhelming cause of the difficulties in which the appellant finds himself is the perception of the friends and associates of [BB] that he was the cause of that man's death. Apparently they consider that the appellant has escaped justice and that he should be dealt with accordingly.

The appellant and his family have clearly endured a significant level of inhumane treatment and disruption to their lives, but we do not consider that such treatment and suffering is by reason of them being of Indian descent, nor does it qualify under any of the other Convention grounds."

THE REHEARING APPLICATION

By letter dated 16 July 1996 the solicitors now acting for the appellant wrote to the Authority seeking a rehearing of the appeal. The grounds advanced in support of the application are three-fold:

(a)It is complained that the Authority did not seek an update of the appellant's circumstances prior to issuing its decision. The delay in determining the appeal is also relied on.

(b)It is said that the manner in which the Authority dealt with the four principle issues is illogical. This complaint is directed to the fact that in its decision the Authority identified four principle issues:

(i)Is there a genuine fear?

(ii)Is the harm feared of sufficient gravity to constitute persecution?

(iii)Is the harm feared related to any of the five grounds recognised in the Convention, or is it related to other factors?

(iv)Is the fear well-founded?

In addressing the facts of the appellant's case, the Authority addressed each of these issues in sequence. The error, if there is one, is that in addressing issue three (whether there was a Convention reason) the Authority mistakenly referred to it as "Issue four" and similarly, in addressing issue four (whether the fear was well-founded) mistakenly referred to it as "Issue three".

(c)Finally, it was submitted that as the appellant's credibility was accepted, the Authority erred in finding that the appellant was not a Convention Refugee.

The letter of 16 July 1996, apart from stating the grounds of the rehearing application, was entirely bereft of information. Specifically, it provided no particulars of the information (if any) possessed by the appellant and which he would have submitted had the Authority sought an update of his circumstances prior to making its decision. Furthermore, there was no affidavit by the appellant in support of the application. In the circumstances, the Registrar wrote to the appellant's solicitors on 24 July 1996 seeking clarification whether the letter of 16 July 1996 was in fact the rehearing application and whether the appellant intended submitting any information or material in support of the application. The appellant was asked to respond by 6 August 1996 and to file any supporting affidavit(s) by that date. The appellant was also asked to make submissions on the Authority's jurisdiction to entertain a rehearing application. The Registrar enclosed a copy of the Authority's decision in Refugee Appeal No. 59/91 Re R (19 May 1992) in which the Authority considered at length the question whether there was jurisdiction to rehear an appeal.

By letter dated 1 August 1996 the solicitors for the appellant confirmed that their earlier letter of 16 July 1996 was in fact the application for rehearing. No affidavit was submitted in support of the application. The third paragraph of the letter merely asserted that:

"Prior to the issue of the decision on 24 May 1996, the Appellant's consultant received verbal information for (sic) a New Zealand Police Officer who had been to Fiji to the effect that the Fijian authorities did not wish the Appellant to return to Fiji. There was also ongoing advice from the Appellant's family in Fiji that it would not be safe for him to return to Fiji. This material would be made available to any rehearing"

As to Refugee Appeal No. 59/91 Re R (19 May 1992) the letter submitted:

"We note the contents of Refugee Appeal No. 59/91 which indicate that as a general rule the Authority will not reopen an appeal for purposes of allowing further evidence to be produced.

It is the Appellant's contention that the original appeal was not considered and disposed of within a reasonable time.

It is also the Appellant's contention that the decision contains two errors of law outlined in our letter of 16 July 1996. We note that the Authority is established by terms of reference which do not provide for an appeal to the High Court on a question of law"

By letter dated 7 August 1996 the Registrar responded in the following terms:

"1.Your letter of 1 August 1996 refers.

2. The Authority has directed that the appellant be given an opportunity to comment on the following three Canadian decisions which address the issue of delay in the refugee determination process:

Akthar v Canada (Minister of Employment & Immigration) (1991) 14 Imm LR (2d) 39 (FC:CA)

Urbanek v Canada (Minister of Employment & Immigration) (1992) 17 Imm LR (2d) 153 (FC:CA)

Canada (Ministre de la Citoyenneté et de l'Immigration) v Miah (1995) 30 Imm LR (2d) 5 (FC:TD)

A copy of each decision is enclosed.

3. The Authority has also directed that your attention be drawn to the decision of Refugee Appeal No. 523/92 Re RS (17 March 1995) (copy enclosed) which at 17 to 22 holds that the burden of proof in a refugee claim rests on the claimant. This decision could be relevant in view of the fact that the "verbal information" referred to in your letter of 1 August 1996 was not drawn to the Authority's attention when first received by the appellant. Your submissions on this issue are also sought.

4. Could I please have your reply by 16 August 1996. The Authority will then deliver a decision on your application."

The Authority has now received from the appellant's solicitors a letter dated 13 August 1996 addressing the three Canadian decisions as well as Refugee Appeal No. 523/92 Re RS (17 March 1995). Those submissions have been taken into account in the preparation of this decision.

The first issue to be addressed is whether the Authority has jurisdiction to reopen an appeal once a final decision has been given.

JURISDICTION TO REOPEN AN APPEAL

The Authority's jurisdiction to reopen an appeal was fully considered in Refugee Appeal No. 59/91 Re R (19 May 1992). That decision was given at a time when the operative Terms of Reference were those dated 1 April 1992. Those Terms of Reference have been superceded by the Terms of Reference which came into force on 30 August 1993 and which are far more detailed and extensive than the 1 April 1992 precursor and, before that, the original 11 March 1991 Terms of Reference. We will return to the significance of this point shortly.

In Refugee Appeal No. 59/91 Re R (19 May 1992) the Authority held, in relation to the 11 March 1991 and 1 April 1992 Terms of Reference, that it did not have jurisdiction to reopen an appeal where an appellant was in receipt of new evidence. This was because the Terms of Reference did not confer powers of a continuing character. Rather, the power to make "a final determination on appeal" as to refugee status was an adjudicative function and the Authority was functus officio once a decision had been given. This holding was reinforced by an established line of Canadian authority which allowed only one exception to the rule, namely, where the first decision was not in accordance with the principles of fundamental justice as described in section 7 of the Canadian Charter of Rights and Freedoms. It is to be noted that the New Zealand Bill of Rights Act 1990 contains no equivalent to section 7 of the Canadian Charter.

The Authority accordingly sees no basis on which jurisdiction to entertain the present application can be found. If there was ever any doubt on the issue, that doubt was removed by paragraph 15 of Part II of the Terms of Reference in force from 30 August 1993. This paragraph expressly provides that no decision of the Authority shall be reconsidered once the decision is conveyed to the appellant. The paragraph is in the following terms:

"15A decision of the Authority shall be a decision of the member(s) hearing a case. Where more than one member hears a case and members are unable to reach a unanimous decision, the decision of the majority shall prevail. Where members are evenly divided on a decision, the outcome shall be in favour of the appellant. A decision of the Authority shall not be reconsidered by the Authority once conveyed to the appellant (except as provided for in paragraph 5(1)(c) - (g) of these Terms of Reference)."

[emphasis added]

Therefore, addressing the present application, the Authority holds that it has no jurisdiction to reopen this appeal because the power conferred on the Authority by the Terms of Reference is wholly adjudicative, there is no inherent or continuing jurisdiction and paragraph 15 expressly prohibits the Authority from reconsidering a decision.

The Authority should add, however, that even if it had power to reopen the present appeal, it would not have exercised its power in favour of the appellant. This alternative ground of the decision is addressed next.

ALTERNATIVE GROUND FOR DECISION

The appellant's three complaints will be addressed under the general headings of Delay, Decision Illogical and Convention Reason.

THE QUESTION OF DELAY

It must be acknowledged that a delay of 20 months between a hearing and the decision is unacceptable.

However, at no time during this period did the appellant draw the Authority's attention to any new evidence or claim that there had been a change of circumstances. The rehearing application has not been supported by any affidavit by the appellant and the solicitors' letter of 1 August 1996 on this issue, is couched in the most general of terms:

"Prior to the issue of the decision on 24 May 1996, the Appellant's consultant received verbal information for (sic) a New Zealand Police Officer who had been to Fiji to the effect that the Fijian authorities did not wish the Appellant to return to Fiji. There was also ongoing advice from the Appellant's family in Fiji that it would not be safe for him to return to Fiji. This material would be made available to any rehearing"

Ordinarily, one would expect more cogent detail. For example, the date on which the immigration consultant received the "verbal information" from the New Zealand police officer, the precise nature of the information received and so on. Furthermore, as both the appellant and his solicitors are aware of the basis on which the refugee application was declined, one would perhaps expect the rehearing application to address the question whether the information now in possession of the appellant bears on the only real issue in this case namely, whether there is a Convention reason to the harm feared by him. The rehearing application fails entirely to address this pivotal issue. In the result, the application could hardly be called cogent or persuasive.

Furthermore, the claim that the Authority was under a duty to seek an update of the appellant's circumstances prior to publishing its decision has not been supported by the citation of any authority and none is known to the Authority. If anything, the principle that the burden of proof rests on the appellant leads to the opposite conclusion namely, that the onus is on the appellant to draw fresh evidence to the attention of the Authority. As the facts of a claim to refugee status lie peculiarly within the knowledge of the refugee claimant, the claimant carries the burden of laying those facts before the Authority: Refugee Appeal No. 523/92 Re RS (17 March 1995) 17-22.

The appellant's submission also fails to take into account the practical consequences of the claimed duty. Following an interview with an appellant, the Authority is required to deliver a written decision. See para 18(1) & (2) of Part II of the Terms of Reference. It is therefore inevitable that there will be a delay between the hearing and the publication of the decision. It follows that in every case there is potential for a change of circumstances or the receipt of further evidence. If the appellant's submission is right, the Authority would, in each case, be under a duty to enquire, prior to the publication of its decision, whether there had been any such change of circumstances or receipt of further evidence. There would, in effect, need to be a second hearing. This would cause further delay, expense and great inconvenience. Placing the burden on the appellant, however, avoids these difficulties as it means that the Authority will only engage in a second hearing where the appellant has something relevant or material to submit.

It was submitted for the appellant that it is "not usual" for submissions to be addressed to the Authority after the hearing but before the decision. This is a surprising submission as it has been the Authority's experience that genuine refugee claimants most often do submit further evidence and submissions as and when fresh information comes to hand. See further Refugee Appeal No. 112/92 Re IS (22 October 1995) 10:

"In the event of ... information that came to light after the appeal hearing but prior to delivery of the Authority's decision, all Counsel and representatives who appear before the Authority are well aware that we will happily receive any new information right up to the moment of delivery of the decision itself. We will also receive and take into account any further submissions (on that new information or otherwise) as may be made. In appropriate circumstances we will reconvene to hear further oral evidence and/or submissions."

The appellant's submission is therefore misconceived.

Not only is there no obligation on the Authority to seek an update of an appellant's circumstances, delay on its own is not a ground for granting a rehearing. As to the latter point, reference is made to a line of decisions of the Canadian Federal Court comprising two decisions of the Court of Appeal and one decision of the Trial Division.

The first decision is Akthar v Canada (Minister of Employment & Immigration) (1991) 14 Imm LR (2d) 39 (FC:CA). At the relevant time the Canadian refugee determination process provided for an initial "screening" interview at which the claimant was required to establish a credible basis for his or her claim. Only if such basis was established was the claim then considered on its merits on a subsequent date by the Refugee Division of the Immigration and Refugee Board. Three Fiji Indians who left Fiji in 1987 after the first and second coups arrived in Canada and applied for refugee status. There was a substantial delay in the processing of their applications. They were eventually found not to have a credible basis for their claims because as at the date of the screening interview, the situation in Fiji had returned to one where it was no longer reasonable to fear persecution. The delays between their first entries into Canada claiming refugee status and the decisions on the credible basis of their claim varied from just over two and a half years to just under three years. The question for determination was whether this delay could be the source of a remedy. The Federal Court of Appeal, on the facts, concluded that it could not. See the judgment of the Court delivered by Hugessen JA at 41:

"The question which arises for determination is whether this quite extraordinary length of time between the original formulation of a refugee claim and the "first stage" or "screening" decision can be the source of any remedy for the present applicants. After anxious consideration, I have concluded that it cannot, at least in the circumstances of the present case. "

And at 43 the Court pointed out the futility of nullifying an untimely decision as this merely adds to the delay:

"Whatever the intention of the scheme, however, and even if the Act did contain a fixed timetable for the completion of the first-stage hearings, it is difficult to know how this could be of any comfort to the applicant. As a general rule, failure by a Tribunal to accomplish a duty within a legislative time-span will usually result in no more than an order that it remedy the defect and get on with the job; at most, and in extraordinary circumstances, it may result in the out-of-time decision being found to be a nullity.

Here, the applicants have had their decisions, albeit very late. It is quite obvious that nullifying the untimely decisions can be of no help whatsoever to them; that would only put them back where they started. The result would be to make the delays even longer without necessarily providing the applicants with a favourable outcome to their refugee claims. "

These observations have direct application to the present case.

Hugessen JA then went on to address issues which arose in the specific context of the Canadian Charter of Rights. While this part of the judgment has no direct application to the present case, it is interesting to note the holding that in the context of an alleged Charter breach, a claim based on delay must depend on a showing of prejudice by the claimant. Even on the strong facts of the case, it was held that there was no evidence of such prejudice. See the passage at 45:

"This is the second obstacle faced by these applicants, for it is my further view that there is nothing in the circumstances or in the evidence in the present cases to support their claims.

To put the matter another way, a delayed hearing for the resolution of a claim to refugee status is not necessarily an unfair or an unjust one for the claimant. While it is the case that each of the present applicants would probably have passed the credible-basis test had his hearing been held shortly after his arrival (and the Tribunal so indicated in each case), that has no impact on the justice of the matter. The purpose of the refugee system both in international and domestic law is not to provide an easy means for immigrants to find a new and more desirable country of residence; it is to furnish a safe haven to those who rightly fear they will be persecuted in their country of origin. Thus, if, as was found to be the case here, the situation in the applicants' country of origin has now returned to one where it is no longer reasonable to fear persecution, the applicants can have no complaints of unjust treatment if their claims to refugee status are denied "

Later, at 48 when discussing the issue of prejudice, the Court held that all the surrounding circumstances must be taken into account, including whether the applicants took steps to overcome the delay.

In the present case the appellant did not at any time subsequent to the hearing of the appeal on 8 September 1994 complain of the delay or submit evidence or submissions on the merits of the appeal itself. That is, having come into possession of information claimed to be directly relevant to the refugee application, the appellant elected not to draw this information to the attention of the Authority. As the person possessed of knowledge of the new information, the responsibility of conveying this information to the Authority rested on the appellant. To claim otherwise would lead to the difficulties discussed earlier in this decision. The Authority would in every case have to make an enquiry as to the receipt of further evidence or as to the change of circumstances prior to delivering a decision, irrespective of the period of delay between the hearing and the delivery of the decision. The Registrar's letter of 24 July 1996 specifically drew attention to the fact that on the papers as they then stood there was no information at all as to the prejudice the appellant claims to have suffered by the Authority's alleged failure to allow him to update his case. This omission was not subsequently remedied by the appellant.

Next in the sequence of Canadian decisions is Urbanek v Canada (Minister of Employment & Immigration) (1992) 17 Imm LR (2d) 153 (FC:CA) in which the judgment of the Court of Appeal was once again delivered by Hugessen JA. The case concerned an appeal from a decision of the Refugee Division of the Immigration and Refugee Board. The appellant sought to add a new ground of appeal namely, that the Division, by taking six months to issue its decision, failed to observe a principle of natural justice. The application was dismissed as it had been made too late. Furthermore, there was no factual foundation for the proposed new ground of appeal. See 154:

"Second, there is in the record no proper factual foundation for the proposed new ground of appeal. An allegation of "severe prejudice" requires to be supported by evidence and there is none. We do not take seriously Counsel's suggestion that there is prejudice in the fact that his client could not today, as he might have in 1989, assert a successful claim for humanitarian considerations; the very reason such a claim would fail is that Czechoslovakia is today a free, liberal and democratic society to which the appellant can return with pride. The appellant's position is based on a fundamental misconception of Canada's refugee determination system; the purpose of that system is to provide safe haven to those who genuinely need it, not to give a quick and convenient route to landed status for immigrants who can not or will not obtain it in the usual way."

Significantly, the court went on to hold at 154:

"Third, and finally, the proposed new ground of appeal is manifestly unfounded in law. A delay of under six months to give a decision in a matter as important as a refugee claim is certainly not prima facie unreasonable. Even if it were, the remedy could never be, as the appellant claims in his memorandum, an automatic grant of refugee status. The analogy which is sought to be drawn to criminal prosecutions and to para 11(b) of the Charter is wholly fictitious; a refugee claimant carries the burden of proving his claim and enjoys no presumption akin to that which holds an accused person to be innocent until proven guilty beyond a reasonable doubt. Whatever remedies may be available in administrative law or otherwise to a claimant who thinks his claim is being processed too slowly, they cannot result in the court declaring to be a refugee someone who has not proved that he comes within the legal definition of that term. "

Finally, in Canada (Ministre de la Citoyenneté et de l'Immigration) v Miah (1995) 30 Imm LR (2d) 5 (FC:TD) the Minister of Citizenship and Immigration applied for judicial review of a split decision of the Refugee Division granting the respondent refugee status. The grant was based on the long delay between the making of the refugee claim and the hearing. In the Federal Court, judicial review was granted and the decision of the Refugee Division was set aside. Teitelbaum J held that refugee status cannot be granted solely on the basis of a long delay between the making of the claim and the hearing of the claim. The decisions of the Court of Appeal in Akthar and Urbanek were applied.

For the purpose of this decision the following principles can be extracted from the Canadian cases:

(a)In a claim for Convention refugee status, the person making the claim has the burden of proving that he or she is a Convention refugee.

(b)Refugee Status cannot be granted solely on the basis of delay in the determination of the claim.

(c)Only in extraordinary circumstances might an out-of-time decision be found to be a nullity. But nullifying an untimely decision cannot be an appropriate remedy if the taking of this step cannot be of any help whatsoever to the individual. This will particularly be the case where the restoring of a claimant back to where he or she started would be to make the delays even longer.

(d)Even in the context of an alleged Charter breach, prejudice must be shown by the individual. In this context, delay in the determination of a claim to refugee status is not necessarily an unfair or an unjust one for the claimant.

Returning to the facts of the present case, attention has already been drawn to the vague and blandly described information which the appellant claims to have received after the Authority reserved its decision on 8 September 1994, to the total absence of an explanation for the appellant's failure to draw this information to the attention of the Authority and to the absence of affidavit evidence addressing these relevant issues. It is also significant that the appellant seeks a rehearing of his case, a step which will only compound the delay of which he complains. As to the issue of prejudice, it has already been pointed out that the appellant's claim to refugee status failed because it was the Authority's finding that the harm anticipated by him was not related to any one of the five Convention grounds. There has been a singular failure by the appellant to establish that the new information allegedly received by him is relevant to this specific issue. In the circumstances, it is difficult to see how the appellant has been prejudiced by the Authority's alleged failure to allow the appellant to update his case.

The Authority accordingly sees no merit to this aspect of the appellant's case.

The appellant draws the Authority's attention to Vea v Minister of Immigration (High Court, Auckland, M1336/90, 1 October 1992, Williams J). There, following the expiration of a reasonable time for making a decision, the Minister of Immigration declined a residence application on the basis that Mr Vea was of bad character. The Minister relied (inter alia) on convictions which had come into existence after the expiration of the reasonable time for making his decision. Williams J held that those convictions could not be taken into account by the Minister. The Authority finds nothing of principle in this decision which assists the determination of the present case.

DECISION ILLOGICAL

This ground of the application rests on the fact that while the Authority correctly identified and addressed each of the four relevant issues set out earlier in this decision, it mistakenly numbered as issue four that which was in fact issue three, and conversely, issue four was mistakenly numbered as issue three. It is clear that a simple mistake was made. The appellant's point has absolutely no merit. It is quite clear from the context that the Authority separately and correctly, addressed all four of the issues. The fact that a mistake was made in the numbering of the issues was a trivial and inconsequential error. It is surprising that the appellant takes the point.

BECAUSE CREDIBILITY ACCEPTED A CONVENTION REASON WAS ESTABLISHED

The appellant's final submission is that while the Authority accepted the appellant's credibility, the Authority "did not apply the law to the facts by concluding that the Appellant was not a Convention Refugee".

This submission rests on a fundamental misconception of the requirements of the refugee definition. Reduced to its essential terms, the definition requires:

(a)That objectively, there is a real chance of the appellant being persecuted in the country of nationality.

(b)That there is a Convention reason for that persecution.

A refugee claimant may be an entirely credible witness but this does not of itself establish either of these two prerequisites. In particular, where a claimant establishes a real chance of persecution, it does not necessarily follow that that persecution is for one of the five reasons recognised by the Convention. Claims often fail due to the absence of a Convention reason for the anticipated persecution.

On the facts found by the Authority, no Convention reason was established with the result that the refugee application was bound to fail.

There is therefore no merit to this last of the appellant's claims.

CONCLUSION

Overall the conclusions of the Authority are as follows:

1. The Authority has no jurisdiction to reopen or rehear an appeal.

2. In the alternative, even if such jurisdiction existed, the Authority would not, in the circumstances, have exercised its power in favour of the appellant.

The application for rehearing is therefore dismissed.

Disposition:The appellant satisfied the requirements of the Refugee Convention. Appeal Allowed.

1948 UDHR

1957 Convention Relating to the Status of Refugees

1966 ICCPR

1966 ICESCR

1967 Protocol Relating to the Status of Refugees

1979 CEDAW

1969 Vienna Convention on the Law of Treaties