IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2018-404-2271
[2019] NZHC 987	

UNDER	section 245 of the Immigration Act 2009	
IN THE MATTER	of an application for leave to appeal	
BETWEEN	BD (IRAQ)
Applicant	
AND	REFUGEE AND PROTECTION OFFICER
Respondent	

	CIV-2018-404-2269	

BETWEEN	
BD (IRAQ)
Applicant	
AND	REFUGEE AND PROTECTION OFFICER
First Respondent

IMMIGRATION AND PROTECTION TRIBUNAL
Second Respondent	

Hearing:	1 May 2019	
Counsel:	P Sundar and S Dalley for Applicant M Mortimer for Respondents
(Immigration and Protection Tribunal abides decision)	
Judgment:	8 May 2019	

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 May 2019 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

BD (IRAQ) v REFUGEE AND PROTECTION OFFICER [2019] NZHC 987 [8 May 2019]

Introduction

[1]	The applicant is from Iraq. She wants to live in New Zealand as a refugee and protected person. The first respondent denied her application for that status. The applicant appealed to the second respondent (the Tribunal). Her appeal was dismissed.1 The applicant now seeks leave to appeal the Tribunal’s decision and to bring proceedings in judicial review in respect of it.

[2]	Section 245 of the Immigration Act 2009 (the Act) provides for an appeal to this Court against a determination by the Tribunal as being erroneous in point of law, but leave of the Court is required. In deciding whether to grant leave the Court must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance, or for any other reason, ought to be determined by the Court.

[3]	Section 249 of the Act similarly constrains bringing judicial review proceedings of decisions of the Tribunal. Leave of the Court is required, and the Court must have regard to:

(a)	whether review proceedings would involve issues that could not be adequately dealt with on appeal; and

(b)	if so, whether those issues, by reason of their general or public importance, or for any other reason, ought to be determined by the Court on review.

[4]	The applicant submits her case crosses both the s 245 and s 249 thresholds.

Background

[5]	The applicant’s case before the first respondent and before the Tribunal was that she fled Iraq in fear of her life after a failed attempt by her estranged father to force her into a marriage with a cousin. If she were to return to Iraq her life would be at grave risk through an “honour killing”.

1	BD (Iraq) [2018] NZIPT 801350.

[6]	The Tribunal accepted that the applicant’s alleged risk of honour killing conformed with social conditions known to exist in Iraq:

[56] The Tribunal has carefully reviewed reports sourced by itself and by counsel on the predicament of forced marriage, and honour killings for women and girls who are perceived to have brought shame on their family and tribe in Iraq: see, for  example,  UNHCR  Tribal  Conflict  Resolution  in  Iraq  (15 January 2018). Accordingly, the Tribunal notes and weighs that the appellant’s claim coheres with reported patriarchal and tribal custom on such topics for certain families in Iraq, particularly those originating from the southern provinces of Iraq.

[7]	The Tribunal, however, did not believe the applicant’s account of what had happened to her. It found she had made it up so as to gain access to New Zealand. The Tribunal concluded the applicant is not entitled to recognition as a refugee, nor as a protected person.

Issues

[8]	The difficulty for the applicant in seeking leave under s 245 and s 249 is that findings on credibility are generally findings of fact, not law. Further, they are facts specific to the particular case. Issues of general or public importance are not usually discernible.

[9]	The Court nevertheless can grant leave under either section if “for any other reason” the Court decides there is an issue which the Court ought to determine. This is not a low threshold. Parliament intended through s 245 and s 249 to limit the extent to which challenges can be made to decisions of the Tribunal. So, for the Court to find “any other reason” would require an “exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing”.2

[10]	Ms Sundar, for the applicant, understands all this. Accordingly, she advances the application on two issues of law:3

2	Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] NZAR 662 at [8], approving Taafi v Minister of Immigration [2013] NZAR 1037 at [19].
3	Ms Sundar became counsel for the applicant after the applications for leave were filed and after the submissions for the applicant were filed by former counsel. Ms Sundar’s advice to the Court on the two issues in the applications are contained in her memorandum dated 26 April 2019.

(a)	The documentary evidence provided by the applicant was summarily rejected on the basis that its credibility simply followed her own, without any consideration of the credibility of the documents themselves and their impact on the applicant’s credibility, in a process which was logically flawed, breached natural justice and amounted to a reviewable error of law; and

(b)	The [Tribunal] purported to take judicial notice in the absence of supporting evidence of the fact that documents from the applicant’s country were easy to produce fraudulently, and therefore unreliable.

Discussion

[11]	The Tribunal heard evidence from the applicant and, via telephone, an aunt and a brother of the applicant. The Tribunal’s rejection of the applicant’s evidence was the result of a careful and objective analysis of the witnesses’ accounts. There was no subjective appraisal of the witnesses themselves. I will not repeat the Tribunal’s analysis but will summarise significant aspects to give context for my analysis of counsel’s submissions:

(a)	The applicant said there had been an attempt to kidnap her by the cousin she was required to marry (Ibrahim). It involved blocking the street outside her house with a car and the assistance of another 10 to 15 men. The Tribunal thought the “convoluted nature of the failed kidnap narrative presented by the appellant points towards its contrived origins”.

(b)	The Tribunal decided the evidence of the applicant that during the kidnap attempt she was in mobile telephone contact with her mother and brother was inconsistent with the evidence of the brother and of the aunt.

(c)	The Tribunal considered that if, as she said, the applicant had taken refuge with the aunt after the kidnap attempt there was no reason why Ibrahim would not have found her there. The “mobility” of the reasons

the applicant gave for not being found made her account implausible. Further, her final explanation – that her father did not know the aunt’s address – was contrary to the aunt’s evidence.

(d)	The Tribunal noted the inconsistency between the applicant’s evidence that Ibrahim in trying to track her down confronted her brother on several occasions, culminating in physical fights and violence, with the brother’s evidence there had never been acts of physical violence.

(e)	The Tribunal noted that in February 2016, a month prior to the alleged kidnapping attempt, Immigration New Zealand received a visitor visa application from the applicant bearing her signature. The Tribunal did not accept the applicant’s and the aunt’s explanation that the aunt made the application without the knowledge of the applicant. The Tribunal concluded the applicant lodged the application. The Tribunal commented:

[85] A number of key concerns flow from this  finding.  First, the timing of the appellant’s visa application undermines her claim that she was first forced to consider flight from Iraq after being the victim of an attempted kidnapping, when in fact, she had taken active steps to depart the country immediately prior to such claimed incident. Second, there is the fact that the visa application contains remarkably different identity details for the appellant from those presented in her refugee and protection claim to the RSB and the Tribunal.

[12]	The applicant provided documents to the Tribunal to corroborate her narrative. The documents appeared to be:

(a)	A copy of the applicant’s complaint of her attempted kidnapping to the Investigation Court Judge of Al Karkh Court, dated 19 March 2016.

(b)	A resulting order of the Al Karkh Investigation Court, dated 22 March 2016.

(c)	A medical report from the Alkindi Educational Hospital (stating that the applicant suffered from acute mental disorder and recommending she take 10 days leave), dated 28 March 2016.

(d)	A marriage certificate (dated 24 August 2016) and a divorce certificate (dated 3 October 2016). Part of the applicant’s narrative was she married her boyfriend, but Ibrahim forced him to summarily divorce her.

[13]	The Tribunal listed these documents and stated it had not overlooked them in its rejection of the applicant’s account, and those of the brother and the aunt. The Tribunal went on to say:

[89]	The ease with which false documents can be obtained to support an untrue refugee claim means that the Tribunal, and the Refugee Status Appeals Authority before it, has adopted a practice of what may be described as weighting neutrality in respect of documents which are not credibly verified as genuine independently of the appellant. In such cases, the credibility of documentary evidence usually follows that of the appellant: see Al (Nepal) [2014] NZIPT 800417-418, Refugee Appeal No 72570 (11 November 2002), Refugee Appeal No 75794 (23 May 2006) at [56], and DJ (India) [2017] NZIPT 801064.

[90]	The weight which can be afforded to the documents produced by the appellant is inextricably bound to her overall credibility assessment which, as noted above, is undermined by the mobility, inconsistencies and implausibilities in her account.

[91]	For the reasons given, the Tribunal places no weight on the court documents. Because the appellant’s claimed marriage and divorce, and mental health condition are inextricably linked to her claim of forced marriage and ensuing events, which have been found to be non-credible, the Tribunal is also unable to rely on such documents. The Tribunal is satisfied that the marriage certificate, divorce certificate and medical certificate have been procured for the purpose of supporting a false refugee claim.

[92]	There is also the matter of the appellant’s identity and documentation presented in support of this. The Tribunal has found that the appellant presented a visitor visa application to Immigration New Zealand in which she claimed to be a Chaldean Christian. It has found that she gave false evidence as to the author of this application. On the other hand, the appellant has claimed to the RSB and to the Tribunal that she is a Shia Arab, and has presented a copy of her Certificate of Iraqi Citizenship and Civil Status Identity Card in support of this claim. The Tribunal reminds itself that although false details may have been presented in respect of one aspect of a claim, such does not mean that all details are imbued with falsehood. However, the Tribunal cannot be satisfied where the truth lies. On the basis of the evidence provided, the appellant has not established her religion by

compelling evidence and the Tribunal is not able to make any finding as to her religion.

[14]	Ms Sundar submits it is inherent to the nature of refugee claims that there are limits on the ability to independently verify evidence provided by applicants in support of their account. However, here the Tribunal summarily dismissed substantial and corroborating documentary evidence without separately assessing the credibility of the documents themselves. It is submitted this was an error of law because the documents were independent of the applicant. The point is that in assessing the credibility of the applicant, the Tribunal was obliged to take the documents into account. The documents could not properly be found to have no weight simply because, without considering the documents, the Tribunal did not believe the applicant’s account.

[15]	Ms Sundar further submits there was no factual basis for the Tribunal finding that false documents can be obtained with ease to support an untrue refugee claim. It was not open to the Tribunal to simply make that assertion without reference to country information or supporting jurisprudence.

[16]	Ms Sundar made a linked submission that as a matter of natural justice the Tribunal should have raised its concerns about the provenance of the documents with the applicant. The applicant may have been able to point to features of the documents which go to their authenticity or she might have been able to provide further information.

[17]	Ms Sundar submits the Tribunal should have, at least, examined the documents provided for indications of authenticity or lack of authenticity. It did not do so, and therefore took an approach which if followed generally could lead to the wholesale rejection in any immigration case of documents provided by applicants which are not independently verified:

51. For the purpose of these applications, counsel reviewed a six month period of Tribunal decisions and was unable to identify a decision which rejected documentary evidence without independent analysis, in the same manner as the second respondent. The concern with the approach of the second respondent in the present case is that it would render documentary evidence incapable of being afforded any genuine weight. In the absence of proper analysis, it would become impossible for an applicant to support their case with documentary evidence, if

they are from a country considered to produce unreliable documents. Where their credibility was accepted, it would follow that documentary evidence would generally be accepted (albeit of little utility at that point). Where their credibility is rejected, it becomes virtually impossible for them to repair their credibility with independent documentary evidence.

[18]	In my view the Act’s framework for the applicant’s appeal to the Tribunal is significant:

226	Proceedings on appeal or matter

(1)   It is the responsibility of an appellant or affected person to establish   his or her case or claim, and the appellant or affected person must ensure that all information, evidence, and submissions that he or she wishes to have considered in support of the appeal or matter are provided to the Tribunal before it makes its decision on the appeal or matter.

…

228	Information Tribunal may consider

(1)	When considering an appeal or a matter, the Tribunal may seek information from any source.

(2)	However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant … and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by [the appellant].

[19]	To make the point clear, the onus was on the applicant to make her case. The applicant put forward documents which had no independent verification of authenticity. The Tribunal was not obliged to makes its own inquiries as to their authenticity.

[20]	On my analysis, the credibility findings made by the Tribunal were open for the Tribunal to make. It would be rare for this Court on appeal to interfere with credibility findings made by the Tribunal which, after all, had the opportunity to observe the applicant and her witnesses. There is no indication in this case that the matters, carefully and clearly explained by the Tribunal, were matters which could not have been found on an objective analysis of the evidence.

[21]	Further, the Tribunal does not say it did not consider the applicant’s documents. To the contrary, having set out its analysis of the applicant’s credibility, the Tribunal noted specifically it had not overlooked the documents.

[22]	I consider, also, the Tribunal was entitled to draw on its experience as a specialist tribunal to observe that documents can easily be forged. In this case, the Tribunal had strong grounds for concluding the applicant had simply made up a story of persecution in order to gain access to New Zealand. As part of that story, the applicant provided the documentation. The documentation on its face corroborated significantly her story. The Tribunal had to decide whether it could rely upon the documents in reaching its views of the applicant’s credibility on all of the other evidence. The Tribunal decided the documents could not provide anything other than a neutral weight given the other contrary evidence and the lack of independent verification of the authenticity of the documents. That was not an error of law. It was a weighing of factual considerations.

[23]	The Tribunal did not breach natural justice by not putting to the applicant concerns about the authenticity of the documents. It did not decide the weight to be given to the documents until after the hearing when it was analysing the evidence. I note also that the applicant has not attempted to advance in support of these applications any authenticating evidence.

[24]	The Tribunal did not take a blanket approach to the applicant’s credibility. In its discussion of the applicant’s identity and documentation presented in support of it,4 the Tribunal explicitly recognised that because some false details may have been supplied that does not mean all details are false.

Result

[25]	I do not find any error of law which should be determined by the Court either on appeal or judicial review. I do not find any other reason why the Court should grant leave.

4	Above n 1 at [92].

[26]	Leave under s 245 and s 249 is denied.

Brewer J

Solicitors:
Ryken & Associates (Auckland) for Applicant Meredith Connell (Auckland) for Respondents