RT, DT and LT, a Minor by His Litigation Guardian v The Immigration and Protection Tribunal

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRonald Young J
Judgment Date26 Mar 2013
Neutral Citation[2013] NZCA 74
Docket NumberCA188/2012

[2013] NZCA 74

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Stevens, French and Ronald Young JJ

CA188/2012

Between
RT, DT and LT, A Minor By His Litigation Guardian
Appellants
and
The Immigration and Protection Tribunal
First Respondent

and

Chief Executive of the Department of Labour
Second Respondent
Counsel:

C S Henry and R Sathiyanathan for Appellants

C A Griffin for Second Respondent

Appeal from a High Court (“HC”) decision declining the appellants' application for judicial review of the respondent's decision to decline their claim for refugee status — appellants were travelling on false Malaysian passports — they were stopped in transit on their way to Australia — appellants claimed they were wealthy Tamils and at risk of being kidnapped — Refugee Status Appeals Authority dismissed their appeal — respondent (Immigration and Protection Tribunal) found there were no exceptional circumstances of a humanitarian nature that made removal unduly harsh under s47 Immigration Act 1987 (appeal against requirement to leave) — whether the HC had erred by proceeding as if it was an appeal rather than a judicial review application — whether the HC should have required the Authority and the Tribunal to do their own assessments of relevant background information.

Held: The Judge had identified the grounds for review (essentially failure to take into account relevant considerations and error of law) and had answered those questions in the judgment. The Tribunal had not erred in its approach in considering the evidence of Dr M, the subjective fears of the children and the proper approach to the evidence nor its relevance to the s47(3) IA (exceptional circumstances of a humanitarian nature) test. The Tribunal had been entitled to, and had conducted, its own analysis of whether or not the children's description of the attempted kidnapping was truthful. It had rejected that evidence and was faced with Dr M's diagnosis which was essentially based on the subjective fears of the children. The Tribunal had acknowledged that the children were experiencing stress and anxiety but had considered that the children's subjective fears of kidnapping were insufficient to establish exceptional circumstances. The T's had not framed their application under s47(3) IA as based on the danger to them as well off Tamils of being kidnapped and subject to ransom demands.

The Authority and Tribunal were specialist appellate tribunals dealing constantly with immigration matters. The Authority had obtained extensive material about the situation for Tamils in Sri Lanka. The T's had provided little, if any, evidence which contradicted the Authority's evidence and analysis. The Tribunal had been entitled to rely on the Authority's material when it had undertaken the assessment pursuant to s47(3) IA. The Tribunal had not breached its obligation to enquire further into the situation in Sri Lanka. While the Tribunal process could be seen as inquisitorial, it already had extensive information about Sri Lanka and had no obligation, in the absence of any identified need, to itself make further enquiries.

As to the situation more generally in Sri Lanka, the Authority and Tribunal had full information as to the situation as far as Tamils were concerned and there was no failure to take into account relevant information by the Tribunal. The T's had chosen to travel on false passports. They were stopped in NZ and were not allowed to go to their ultimate destination because of those false passports. In any event, they had sought refugee status in NZ. That could not be a factor relevant to the exceptional circumstances in s47(3) IA.

While the Authority's conclusions were not binding on the Tribunal considering a s47(3) IA appeal, it was still entitled to have regard to the comments and findings of the Authority on substantially similar evidence. The Tribunal had endorsed the Authority's conclusions with respect to the credibility of the T's kidnapping claims but it had also carried out its own analysis. Contrary to the HC decision (that the Tribunal may have erred), the Tribunal had not erred and so the question of remedy did not arise.

Appeal dismissed.

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellants must pay the second respondent's costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Ronald Young J)

Table of Contents

Para No

Introduction

[1]

Background facts

[5]

The High Court decision

[13]

The RSAA and IPT decisions

[22]

Appeal grounds

[49]

Did the Judge proceed as if the proceedings were an appeal rather than a judicial review?

[49]

Dr McCormick's report and the children's medical condition

[54]

Risk of harm of kidnapping

[71]

Misconstruction of submissions

[94]

Family's circumstances

[94]

Not dysfunctional family

[101]

Travel to Australia

[103]

Reliance on A, B, C (a family from Peru) v The Chief Executive , Department of Labour

[104]

Discretion as to remedy

[113]

Conclusion and costs

[115]

Introduction
1

Mrs T, her daughter and her son, who are all Sri Lankan, left Sri Lanka on 24 August 2009 using their own passports. They travelled to South America. When they left South America they travelled on false Malaysian passports heading for Australia. On 19 September 2009 they were stopped in transit in New Zealand because the New Zealand authorities discovered the Malaysian passports were false.

2

The family then claimed refugee status in New Zealand but the Refugee Status Branch of the Department of Labour declined their claims in February 2010. The Refugee Status Appeals Authority (RSAA) dismissed their appeal. 1

3

Immigration New Zealand then revoked their temporary permits on 2 August 2010. But in early September 2010 Mrs T and her children appealed against the requirement to leave New Zealand. Their appeal was dismissed by the Immigration and Protection Tribunal (IPT). 2 The IPT dismissed their appeal. 3 Mrs T and the children then filed judicial review proceedings in the High Court. On 7 March 2012 that application was refused by Ellis J. 4 It is from that decision that Mrs T and her children now appeal.

4

The issues to be determined on appeal are, as identified by counsel:

1
    Whether the High Court erred in holding that “nothing turn[ed]” on the fact that the appellants sought judicial review of, rather than appealing against, the decision of the Immigration and Protection Tribunal (“IPT”). 2. Whether the High Court misconstrued the submissions advanced on the appellants' behalf in that court with respect to: 2.1 The adequacy of the RRA/IPT's assessment of all the Family's circumstances, against the criteria set out in s 47(3) of the Immigration Act 1987 (repealed); 2.2 The position taken by the decision in A, B, C (a Family of Peru) v Chief Executive of the Department of Labour[2001] NZAR 981 in respect of the RRA's reliance on assessments made by the RSAA. 3. Whether the High Court should have required the RRA/IPT to do its own assessment of relevant background information available to the Tribunal, including information related to risk of harm in Sri Lanka to persons of comparable social status to the family as “well off Tamils”, when that Tribunal evaluated for itself the credibility of the basis of the appellants' fear of being kidnapped for ransom, and/or of death, in Sri Lanka. 1 Refugee Appeal No 76502, Refugee Appeal No 76503, Refugee Appeal No 76504 RSAA Auckland, 29 June 2010 [RSAA decision]. 2 The IPT replaced the Removal Review Authority as from 29 November 2010. All appeals lodged before 29 November 2009 are determined under the transitional provisions of the Immigration Act 2009. 3 AB (Sri Lanka) [2011] NZIPT 500137 [IPT decision]. 4 RT v The Immigration and Protection Tribunal [2012] NZHC 345, [2012] NZAR 565 [High Court judgment]. 4. Whether the High Court erred in identifying a “possible” or “arguable error” by the IPT in the Tribunal's approach to and consideration of the psychological evidence of Dr McCormick and the fears of the children as to their risk of harm in Sri Lanka. 5. Whether the High Court erred in concluding that the IPT had properly considered all of the available information relevant to the appellants' appeal, and that even if it hadn't, the appellants should have no relief.
Background facts
5

Mrs T, her husband and her two children (a girl born in 1991 and a boy in 1994), who are Tamils, lived in Colombo, Sri Lanka for a number of years prior to the departure of the wife and the children. Mrs T says that her husband is a successful businessman. However, in about 2009 the family became subject to threats. In May 2009 Mrs T said that her husband was kidnapped by six men and a ransom of 10 million rupees was demanded. Mrs T claimed that to pay the ransom they had to sell a new family home which was being built. Eventually the house was sold for 20 million rupees which was paid to the kidnappers and Mr T released.

6

Mrs T and her two children claim that in August 2009, the children were on their way to a nearby temple when other men attempted to kidnap them but passersby rescued the children. The Police refused to accept a complaint about the attempted kidnapping because the T family were Tamils. Shortly afterwards Mr T received an anonymous phone call seeking a further ransom failing which either the children or Mr T and his wife would be killed.

7

As a result Mrs T said that the family decided that she and the children should leave Sri Lanka. They arranged to leave with the assistance of an agent who also arranged their false Malaysian passports.

8

After the Ts' arrival in New Zealand, they claimed refugee status. Immigration New Zealand declined their refugee status claim and their appeal was dismissed. The RSAA rejected Mrs T's narrative of the kidnap events. It did not accept...

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