DG (Bangladesh) v The Refugee Protection Officer
| Jurisdiction | New Zealand |
| Judge | Gwyn J |
| Judgment Date | 01 July 2020 |
| Neutral Citation | [2020] NZHC 1528 |
| Date | 01 July 2020 |
| Docket Number | CIV 2020-404-000320 |
| Year | 2020 |
| Court | High Court |
UNDER The Immigration Act 2009, s 245, The 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and the International Covenant on Civil and Political Rights and the Convention Against Torture
UNDER The Immigration Act 2009, s 245, The 1951 Convention Relating to the Status of Refugees, and its 1967 Protocol and the International Covenant on Civil and Political Rights and the Convention Against Torture
[2020] NZHC 1528
Gwyn J
CIV 2020-404-000320
CIV 2020-404-000285
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
Immigration — application for leave to appeal and review a decision of the Immigration and Protection Tribunal declining to grant the father or the child of the family either refugee status within the meaning of the United Nations Convention Relating to the Status of Refugees or protected person status within the meaning of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), the International Covenant on Civil and Political Rights and/or the United Nations Convention on the Rights of the Child — claim based on the fact the wife had converted to Christianity which put the family at risk in Bangladesh — Immigration Act 2009
R S Pidgeon for the Applicants
E A M Mok for the Respondent
This judgment was delivered by me on 1 July 2020 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
continued from previous page…
DG (Bangladesh) 1 seeks leave, pursuant to s 245 and s 249 of the Immigration Act 2009 (Act), to appeal and to review a decision of the Immigration and Protection Tribunal (Tribunal) declining to grant the father or the child of this family either refugee status within the meaning of the United Nations Convention Relating to the Status of Refugees (Refugee Convention) or protected person status within the meaning of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), the International Covenant on Civil and Political Rights (ICCPR), and/or the United Nations Convention on the Rights of the Child (UNCROC).
The Tribunal took no part in the hearing before me and has indicated its intention to abide by the Court's decision. The Refugee and Protection Officer (RPO) opposes the applications.
For reasons which I set out below leave to appeal is granted and the application for leave to review is dismissed.
Mr and Mrs DG (who I shall refer to as the husband and the wife) and their now seven year old son (the child), arrived in New Zealand from Bangladesh in 2015 and have lived in a North Island city since then. In December 2017 the wife decided to become a Christian, and in May 2018 she was baptised at a church in that city. She is now a committed Christian. The claim to refugee status and protection status at issue in this application was advanced on the basis that the wife's conversion to Christianity put the applicants at risk of being seriously harmed in Bangladesh.
The RPO who heard the claim at first instance declined the application for refugee status for all three of the husband, wife and child. Protected person status was also declined. An appeal to the Tribunal was lodged on 25 September 2018.
That appeal was the second time that the appellants had appealed against the decline of a claim to refugee status and/or protection in New Zealand. Their first claims were based on the husband's political activities in Bangladesh. In a decision dated 16 May 2017, the Tribunal determined that that claim was not credible. 2
Subsequent humanitarian appeals, based on the child's medical condition, were declined by the Tribunal. 3 An application for leave to appeal that decision to the High Court was declined by the High Court 4 and a subsequent appeal was declined by the Court of Appeal. 5
The husband and wife have had asylum seeker work visas throughout.
In the second appeal, the Tribunal found that the wife is a refugee within the meaning of art 1A(2) of the Refugee Convention and her refugee status is recognised. 6 The Tribunal found that the husband and the child are not refugees within the meaning of art 1A(2) of the Refugee Convention. It also concluded that the husband and the child are not protected persons within the meaning of the Convention Against Torture and/or the ICCPR.
The Tribunal defined the essential issues before it as “whether the new claim is credible and secondly, if so, whether, the wife's conversion to Christianity puts the appellants at risk of being seriously harmed in Bangladesh. 7
The Tribunal found the following facts:
[78] The husband and wife are a married couple in their early thirties from Dhaka, Bangladesh. They were both raised as Muslims. Their son is seven and has severe autism and seizure disorder. The Tribunal finds that the wife has converted to Christianity in New Zealand and has been baptised. She is deeply involved with the Christian faith and she has attributed improvements
in her son's health to this involvement. It is accepted that the fact of her conversion has been disclosed to family in Bangladesh, and it has not been welcomed by her mother. It is also accepted that her conversion is likely to be unwelcome to the husband's family who, like her mother, are devout Muslims. It is on this basis that the appellants' second appeal is to be assessed.
Relevant for the purposes of this application, the RPO had “accepted as credible that [the child] suffers from medically intractable seizures and epileptic spasms” and “has severe autism and marked developmental delay.”
The Tribunal went on to consider country information concerning the treatment of Christians in Bangladesh and, in particular, the treatment of Muslim converts to Christianity (apostates). 8 The Tribunal noted “as a known apostate [the wife] faces some risk of reprisal, not only in terms of the ostracism and shunning she may face from those that disapprove, but also in the form of a physical attack such as that inflicted on the Christian convert in the [news] article referred to above.” 9 And further “her profile as a known apostate is likely to be augmented by her son's severe autism which makes her identifiable. Her determined view that Christianity has helped her son's development may also be a provocative factor.” 10
Having regard to the country information as well as the evidence about the reaction of the wife's family to her conversion the Tribunal determined that the wife's risk if she were to return to Bangladesh now is not so remote as to be purely speculative. 11 The Tribunal found that there is a real chance of her being the victim of an attack, which would amount to serious harm, should she return to Bangladesh and attempt to practise Christianity. The Tribunal also found that state protection is not available to the wife and that she is at risk of a sustained or systemic violation of internationally recognised human rights demonstrative of a failure of state protection, and that, objectively, there is a real chance of her being persecuted if she returned to Bangladesh. 12 The Tribunal also found that that situation arose because of the wife's religion and is accordingly for reason of a Convention ground. 13
In relation to the husband's and child's applications the Tribunal found that they are not apostates. It found that there was no evidence before the Tribunal establishing that the child would face a risk of serious harm in Bangladesh for a Convention reason should he be returned there. 14 In relation to the husband, the Tribunal found that he may be ostracised by his family on return to Bangladesh should they be aware of the wife's conversion but that there was no evidence that they would seek to harm him beyond this: 15
While the wife has been found to be at risk of being subjected to serious harm on account of her conversion, this is on the basis of her specific profile. The risk to the husband, who continues to be a Muslim, is sufficiently remote as to be merely speculative. The Tribunal finds the husband does not face a real chance of being persecuted if returned to Bangladesh.
The Tribunal went on to consider whether the husband and son should be granted protected person status. It noted that they relied on the same evidence under this aspect of their claim as for their refugee appeals. For the reasons given in relation to those appeals, the Tribunal found that there are no substantial grounds for believing either of them is in danger of being tortured if returned to Bangladesh and accordingly concluded that they are not protected persons within the meaning of the Convention against Torture. 16 It also concluded that “just as the husband and the son do not face a real chance of cruel, inhuman or degrading treatment, or of arbitrary deprivation of life, as a form “being persecuted” in the context of the refugee enquiry, neither are they in danger of it in the context of the ICCPR.” 17 Accordingly, the husband and the child are not protected persons within the meaning of the ICCPR. 18
The father and the child now seek leave to appeal or review that decision of the Tribunal. The wife is the responsible adult for the child in terms of ss 375 and 376 of the Act.
Section 3(1) of the Act provides that “the purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the...
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