REFUGEE APPEAL NO. 522/92

RE ARR (REF: 21 NOVEMBER 1995, REFUGEE STATUS APPEALS AUTHORITY)

AT AUCKLAND
Before: B. O. Nicholson (Chairman)

 

  R. P. G. Haines

 

Counsel for the Appellant: No appearance
Appearing for the NZIS: Ms Lindsay Reid
Date of Hearing: 21 November 1995
Date of Decision: 21 November 1995
    MINUTES OF THE AUTHORITY DELIVERED BY R P G HAINES

INTRODUCTION

The appellant's appeal was allowed by this Authority in a decision delivered on 21 January 1994. The case comes before the Authority today because it is alleged that the appellant's refugee status may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information. The appellant has since May 1993 acted in person, having dismissed his solicitors, Haigh Lyon & Co. He is aware of today's hearing, having been served personally on 6 November 1995 with a notice from the Authority's Secretariat dated 25 October 1995 in the following terms:

"We refer to the above appeal heard before this Authority on Tuesday 12 October 1993 and Tuesday 12 December 1993, and the grant of Refugee Status in the decision published on 21 January 1994.

Further investigations have been carried out in regard to certain documents you submitted to the Authority at the time of your appeal. I refer you to letters/papers attached.

As you will note, the British High Commission letter gives rise to possible allegations of fraud, and the submission of bogus documents to this Authority with the intent of gaining Refugee Status. Such matters are treated seriously by the Authority under the Terms of Reference and, as such, we wish to give you the opportunity to comment before this Authority.

A date has been scheduled for this:
Tuesday, 21 November 1995 at 10am.

Please confirm this date with the writer. You may wish to instruct a solicitor or counsel to assist you. Failure to appear at this hearing may result in the Authority automatically reviewing the grant of Refugee Status to yourself."

Notwithstanding the terms of this notice, the appellant has not attended the hearing this morning. Regrettable though the non-appearance of the appellant may be, the hearing today could not have proceeded in any event, as we are of the view that the procedural steps prescribed by the Terms of Reference have not been followed and the hearing must be adjourned for those prescribed steps to be taken.

BACKGROUND

The appellant is a citizen of the People's Republic of Bangladesh who arrived in New Zealand on 8 September 1990. He applied for refugee status on 14 September 1990. The Refugee Status Section interview took place on 4 October 199 1, but it was not until 27 August 1992 that a decision was made declining the application. The appeal against that decision was heard by a differently constituted panel of this Authority on 12 October 1993 and 14 December 1993. In a decision delivered on 21 January 1994, the appeal was allowed. Briefly, the appellant's case, as presented at the hearing of the appeal in 1993, was based on two grounds:

(a)As a Hindu in a predominantly Muslim country, he has suffered discrimination of a significant kind.

(b)His political activities in the Awami League culminated, so he claimed, in a warrant for his arrest being issued on 10 June 1990 on a false charge under the Explosive Substance Act. Following a trial in absentia, he was convicted on 15 July 1993, sentenced to imprisonment-for ten years and fined Taka 2,000. The appellant produced 'in evidence a number of court documents, including a warrant of arrest and the judgment recording the outcome of the trial in absentia.

In its decision delivered on 21 January 1994, the Authority made no finding as to the appellant's personal credibility. In fact, no findings were made as to any of the appellant's various claims. Instead, the Authority, while expressing doubts as to the authenticity of the warrant and court record, gave the appellant the benefit of the doubt and treated the documents as genuine. It found that these documents alone warranted a finding that the appellant held a well-founded fear of persecution for reason of his political opinion. Refugee status was granted. Having been recognised as a refugee, the appellant was granted a residence permit on 28 June 1994. On 13 December 1994, he was granted New Zealand citizenship. As a result of further enquiries made by the New Zealand Immigration Service through the British High Commission, Dhaka, the following communication dated 8 December 1994 was received from the British High Commission, Dhaka:

"The Entry Clearance Officers visited the Inspector's office (Arrest Records) at the Sylhet Court and confirmed the warrant of arrest (copy attached) is quite bogus. None of the details on the wan-ant match the details contained in the records held by the Inspector's office. The rest of the documents would also seem to be bogus as they all rely on the warrant being genuine."

It is in these circumstances that it is believed by the Immigration Service that the appellant's refugee status may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information.

CANCELLATION OF THE GRANT OF REFUGEE STATUS

The Terms of Reference ("TR") under which both the Refugee Status Branch[1] and the Refugee Status Appeals Authority operate make provision for the cancellation of the grant of refugee status where that status may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information. For the Refugee Status Branch, the relevant provision is TR Part I paras 2(6) and (7), while the complementary provisions for the Refugee Status Appeals Authority are contained in TR Part II para 5 (l)(d). These provisions appear to anticipate that, where fraud is alleged, an inquiry into the propriety of the grant of refugee status is to be conducted by the tribunal by which refugee status was granted. That is, where refugee status is granted by the Refugee Status Branch, it is the responsibility of that tribunal to conduct the fraud inquiry in the first instance. See TR Part I para 2(6) which provides that the Refugee Status Branch is responsible for:

"Determining in any case where refugee status granted by the [RSB] may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, whether that grant of refugee status was properly made and cancelling the grant of refugee status in such a case if appropriate."

Where, however, refugee status has been granted by the Refugee Status Appeals Authority, the Authority has the responsibility of inquiring into the fraud allegation. However, that must be in the context of an application by the Refugee Status Branch. This is the effect of TR Part I para 2(7), which gives to the Refugee Status Branch the responsibility of:

"Applying to the Refugee Status Appeals Authority for a determination, in any case where refugee status granted by the Authority may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, as to whether that grant of refugee status was properly made, and, if not, as to whether the grant of refugee status should be cancelled.

The corresponding provision in the Authority's Terms of Reference is TR Part 11 para 5(l)(d) which, provides that the Authority's function is:

"To determine on application by the Refugee Status Section, or on appeal from a decision of the RSS, in any case where refugee status may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, whether that grant of refugee status was properly made. The Authority may cancel the grant of refugee status in such a case if appropriate."

Clearly, the phrase "on application by the Refugee Status Section" is a reference to the power of an officer of the Refugee Status Branch to make an application under TR Part I para 2(7). On the other hand, the reference "to determine... on appeal from a decision of the [RSB]" is a reference to a determination by the Refugee Status Branch under Part I para 2(6). In other words, there is a night of appeal to the Authority from any decision by the Refugee Status Branch determining that the grant of refugee status by that Branch may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information. As to the present facts, the appellant having been granted refugee status by this Authority, an inquiry into the issue whether the grant of refugee status has been procured by fraud, forgery, false or misleading representation or concealment of relevant information must necessarily be in the context of an application by the Refugee Status Branch under TR Part I para 2(7). Unfortunately, there is no such application before the Authority, and the hearing must now be adjourned to enable such application to be made and to be served personally on the appellant.

NATURE OF THE INQUIRY

Part II para 5(l)(d) of the Authority's Terms of Reference appear to anticipate that on an application by the Refugee Status Section there are *in fact two inquiries:

(a)Whether the original grant of refugee status by the Authority was properly made.

(b)Whether the Authority should cancel the grant of refugee status.

It does not automatically follow from a determination that the grant of refugee status was not properly made (because it was procured by fraud, forgery, false or misleading representation, or concealment of relevant information) that the grant of refugee status must be cancelled. There are two reasons. First, the phrase "The Authority may cancel the grant of refugee status" clearly vests a discretion in the Authority. Second, there may well be cases where, notwithstanding the fraud, forgery, false or misleading representation or concealment of relevant information, the individual may nevertheless possess (on the true facts) a well-founded fear of persecution for a Convention reason and therefore be entitled to retain the grant of refugee status. Thus, on the facts of the present case, there being no determination of the appellant's personal credibility or the veracity of the two separate limbs to his claim to refugee status, those issues will be at large at the hearing of the Refugee Status Branch application.

PROCEDURE ON AN APPLICATION FOR DETERMINATION UNDER TR PART I PARA 2(7)

The Terms of Reference prescribe no procedure for applications under TR Part I para 2(7). Accordingly, we at present see no need for the formality of a notice of application and supporting affidavit which would ordinarily be appropriate for more formal tribunals and, particularly, courts. However, should the Refugee Status Branch prefer to adopt this course, it would not be inappropriate. Alternatively, the application can be made by way of letter. Depending on the circumstances of the individual case, the letter may need to:

(a)give clear notice of the nature of the application and the provision (s) of the Terms of Reference under which it is made;

(b)contain a summary of the grounds on which it is alleged that the grant of refugee status by the Authority may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information;

(c)provide a clear indication of the consequences of a decision adverse to the particular appellant;

(d)refer to the documentation on which the Refugee Status Branch intends to rely in support of the application. Copies of that documentation should be annexed to the application so that proper notice is given to both the appellant and the Authority.

On receipt of the application, the Secretariat will then allocate a date of hearing. The Refugee Status Branch is to then serve on the appellant the application together with the separate notice from the Secretariat giving notice of the hearing date. That notice must:

(a)draw the appellant's attention to the fact that at the hearing of the application, the inquiry is not only into the issue whether the grant of refugee status by the Authority may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, but also into whether, on the facts as now before the Authority, the grant of refugee status should be cancelled. In other words, the appellant must have his or her attention drawn to the fact that the case is, in effect, being re-heard;

(b)warn the appellant that should he or she elect not to attend the hearing, the application may be determined in his or her absence.

We would also anticipate that, as the matter comes before the Authority as an application by the Refugee Status Branch, an officer of that Branch will appear before the Authority either in person or by counsel. As this application will be the first received by the Authority, it would welcome such assistance as the Refugee Status Branch may be able to give, particularly on the questions of burden of proof and standard of proof. (R P G Haines)  
 

[1] The Term of Reference (which came into force on 30 August 1993) in fact refer to the Refugee Status Section of the Immigration Service. However, the Refugee Status Section has been re-named the Refugee Status Branch. In this decision, all references to the Refugee Status Section have been changed to the Refugee Status Branch.
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