Refugee and Protection Officer v CV and CW and Another

• Jurisdiction: New Zealand
• Judge: Winkelmann J
• Judgment Date: 28 October 2016
• Neutral Citation: [2016] NZCA 520
• Docket Number: CA196/2015
• Court: Court of Appeal
• Date: 28 October 2016

Between

Refugee and Protection Officer

Appellant

and

CV and CW

First Respondents

The Immigration and Protection Tribunal

Second Respondent

[2016] NZCA 520

Court:

Ellen France P, Harrison and Winkelmann JJ

CA196/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court (“HC”) decision which found a number of errors in the approach of the second respondent, the Immigration and Refugee Protection Tribunal's (“the Tribunal”) consideration of the first respondent's claims for refugee status and remitted the proceedings to the Tribunal for reconsideration — the first respondents were citizens of Iran and had been conscripted for military service in Iran but said that if they were returned to Iran they would refuse to serve — the first respondents were of Azeri ethnicity, an ethnic minority in Iran which suffered prejudice and discrimination in Iran — the claim was rejected by the appellant and on appeal by the second respondent, the Immigration and Protection Tribunal (“the Tribunal”) on the basis there was not a real chance they were at risk of serious harm — whether the HC had erred by not providing the appellant the opportunity to respond or properly respond to those grounds — whether the HC's reformulation ignored the basis upon which the first respondents claims for refugee status were advanced and factual findings by the Tribunal in that regard — whether the HC had misstated the test for refugee status by equating a breach of human rights with persecution thereby failing to consider the additional requirement of serious harm.

Counsel:

M G Coleman and R D Garden for Appellant

F M Joychild QC, D Mansouri-Rad and L Wong for First Respondents

No appearance for Second Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

	Para No
Background	[4]
CW	[7]
CV	[10]
Legal and procedural context	[14]
Legal framework	[14]
Tribunal's rejection of CV and CW's claims	[25]
Applications for judicial review and appeal to the High Court	[35]
First ground of appeal: Was there a breach of natural justice?	[40]
Analysis: First ground of appeal	[41]
Second ground of appeal: Reformulation was not open to Duffy J because of basis of claim and Tribunal's factual findings	[43]
Analysis: Second ground of appeal	[47]
Third ground of appeal: Did the Judge misstate and apply the wrong test?	[56]
The judgment	[57]
Analysis	[66]
Did the Judge apply the wrong test?	[68]
What is the correct test?	[80]
Result	[92]

1 Brothers CV and CW are citizens of Iran. They have been conscripted for military service in Iran but say that if they are returned to Iran they will refuse to serve. The brothers claimed refugee status in New Zealand. Their claims were dismissed by the appellant, a refugee and protection officer (the Officer) and on appeal by the second respondent, the Immigration and Protection Tribunal (the Tribunal). 1 The Tribunal dismissed each brother's appeal because it did not consider that, if CV and CW were to return to Iran, there was a real chance they were at risk of serious harm. 2

2 CV and CW sought leave from the High Court to appeal or judicially review the Tribunal's decisions on seven grounds. Duffy J reformulated those into three grounds on which she granted leave to bring judicial review proceedings. Addressing those grounds, she found a number of errors in the Tribunal's

consideration of CV and CW's claims for refugee status and remitted the proceedings to the Tribunal for reconsideration. 3

3 The appellant contends that Duffy J erred in reaching that decision as follows:

• (a) in reformulating the grounds of review and then allowing the application for judicial review, the Judge did not provide the appellant the opportunity to respond or properly respond to those grounds;

• (b) the Judge's reformulation ignores the basis upon which CV and CW's claims for refugee status were advanced and factual findings by the Tribunal in that regard; and

• (c) the Judge applied the wrong legal test for determining refugee status.

Background

4 CV and CW are young men in their twenties. They are of Azeri ethnicity, an ethnic minority in Iran. The Azeris have a different and distinct language and culture to the predominant Islamic culture. They suffer prejudice and discrimination in Iran. They may not learn in their own language, are not allowed to publish in their language, not allowed to have traditional Azeri music at music centres, not allowed to use Azeri names, and not allowed to commemorate Azeri cultural traditions.

5 Iran is a theocratic state. Religion has dominated and continues to dominate all aspects of public life in Iran. The brothers were born into the Muslim faith but describe themselves as having no religion. Because they were once members of the Islamic religion, in Islamic terms, they are “apostates”.

6 Both CV and CW have claimed refugee status in New Zealand under art 18 of the International Covenant of Civil and Political Rights (ICCPR) 4 and art 1A of

the Convention relating to the Status of Refugees (Refugee Convention). 5 They do so on the basis of the following narrative concerning their life in Iran. We set out below a very brief precis of the account of their lives in Iran prior to travelling to New Zealand, information which was before the Tribunal.

CW

7 At intermediate school CW did not dress according to the Islamic dress code or take part in compulsory prayers. It took him five rather than the usual three years to progress through intermediate school because he was forbidden to sit final exams as punishment for not complying with the Islamic rules. While at university, CW was politically active and took part in demonstrations which were violently put down by the Iranian armed forces.

8 On one occasion, because of views he had expressed, he was beaten in the street by members of a paramilitary voluntary force of Islamic loyalists called the Basij.

9 CW has said that he believes the best way to get change in Iran is not to oppose the regime but “to oppose Islam because [the] Regime is nothing but pure Islam”. If returned to Iran, CW faces compulsory military service. He does not wish to serve in the Iranian army. CW came to New Zealand in July 2011 and made an application for refugee status in May 2012.

CV

10 At high school CV grew long hair, was clean shaven and wore fashionable clothing. During his high school years when he was walking out with his friends on the streets he was stopped by the disciplinary forces, Niroye Entezami, because of his long hair and clothing. He was arrested and detained for a week. In that time they cut his hair, tore his clothes and beat him. He was only released after intervention by his father.

11 CV was able to attend a preparatory camp for a national youth sports team. However, during the camp CV talked about the Green Movement (a reform movement) with other players. As a result he was spoken to by the Herasat. The Herasat are representatives of the security and intelligence services and maintain offices in most large public institutions in Iran, including universities. CV was told he was not allowed to speak about political matters at the camp, otherwise he would be expelled from the camp and arrested. He was later not selected for the team and has reason to believe that is because of the political views he expressed.

12 In 2010 CV took and passed entry exams to allow him to study at university. However, the university refused his enrolment for “security reasons”.

13 Like CW, CV did and does not wish to serve in the military. He sought an exemption from military service but was unable to obtain one. He left Iran and arrived in New Zealand in 2011. He made an application for refugee status in November 2011.

Legal and procedural context

Legal framework

14 Section 129(1) of the Immigration Act 2009 provides that a “person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention”. Claims to refugee status are determined by a refugee and protection officer. 6

15 The Tribunal is established under the Immigration Act as a specialist body to, among other things, hear appeals from decisions in relation to recognition as a refugee. 7 The Tribunal must hear appeals de novo 8 and must determine, in the following order: 9

• (a) whether to recognise the person as a refugee under the Refugee Convention;

• (b) whether to recognise the person as a protected person under the Convention against torture and other cruel, inhuman or degrading treatment or punishment; 10 and

• (c) whether to recognise the person as a protected person under the ICCPR.

16 Article 1A(2) of the Refugee Convention provides that a refugee is a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.

17 Naturally, the concept of “persecution” is central in claims for refugee status. As observed by the Tribunal in DS (Iran), the Tribunal has long taken a “human rights approach” to determining claims to refugee status. 11 On that approach international human rights law, which is centred on international treaty law as opposed to customary international law, is used as the framework for considering and determining the issue of persecution in this context.

18 Article 18 of the ICCPR, the...