DG (Bangladesh) v The Refugee Protection Officer

JurisdictionNew Zealand
CourtHigh Court
JudgeGwyn J
Judgment Date01 July 2020
Neutral Citation[2020] NZHC 1528
Docket NumberCIV 2020-404-000320
Date01 July 2020

[2020] NZHC 1528

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Gwyn J

CIV 2020-404-000320

CIV 2020-404-000285

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

Between
DG (Bangladesh)
Applicant
and
The Refugee Protection Officer
Respondent

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

Between
DG (Bangladesh)
Applicant
and
The Immigration and Protection Tribunal
First Respondent
The Refugee Protection Officer
Second Respondent
Appearances:

R S Pidgeon for the Applicants

E A M Mok for the Respondent

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

The issues were: whether the grounds of appeal and the grounds of review raised issues of general or public importance?

The Court held that the Tribunal's apparently narrow focus on the specific evidence in relation to each applicant meant that it risked not seeing the overall picture. The context was a child who was dependent on his mother and particularly vulnerable by reason of both his age and his medical condition; a husband who had health issues and may to some extent be held “responsible” for his wife's conversion. In addition, the Tribunal noted that the wife's profile as a known apostate was likely to be amplified by her son's severe autism which made her identifiable, but it had not appeared to have considered the converse proposition, being that the combination of the wife's apostasy and the child's severe autism may put all members of the family at risk. The claim of the child and the husband was largely derived from the mother's status as someone who had been found to have a well-founded fear of persecution based on her conversion to Christianity. There was a bona fide and serious argument that the Tribunal should have had regard to those provisions of the UNCROC and the ICCPR.

There was a public interest and general importance in clarifying how decision makers in the refugee context applied relevant international conventions as they relate to the interests of the child and the principle of family unity.

The application for leave to appeal the Tribunal's decision under s245 of the Act on the question of whether the Tribunal erred in law in failing to have regard to the applicable international conventions was allowed. The application under s249 IA on the basis that whether the Tribunal made an error of law was clearly an issue capable of determination on appeal was declined.

JUDGMENT OF Gwyn J

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…

Introduction
1

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).

2

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.

3

For reasons which I set out below leave to appeal is granted and the application for leave to review is dismissed.

Background facts
4

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.

5

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.

6

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

7

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

8

The husband and wife have had asylum seeker work visas throughout.

The Tribunal decision from which leave to appeal/review is sought
9

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.

10

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

11

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.
12

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.”

13

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

14

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

15

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...

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