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

• Jurisdiction: New Zealand
• Judge: Ronald Young J
• Judgment Date: 26 March 2013
• Neutral Citation: [2013] NZCA 74
• Docket Number: CA188/2012
• Court: Court of Appeal
• Date: 26 March 2013

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

[2013] NZCA 74

Court:

Stevens, French and Ronald Young JJ

CA188/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

C S Henry and R Sathiyanathan for Appellants

C A Griffin for Second Respondent

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.

JUDGMENT OF THE COURT

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.

• 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 that Mr T had been kidnapped, nor did it accept that an attempt had been made to kidnap the children.

9 The RSAA considered that Mrs T's concern about her and her children being persecuted if they returned to Sri Lanka was not well founded. There was nothing in their backgrounds which meant they would be at risk if they returned to Sri Lanka.

10 As a result of the rejection of the Ts' refugee claim, Immigration New Zealand told them that their temporary permits would be revoked from early August 2010. The family appealed to the IPT. The Ts had to bring themselves within s 47(3) of the Immigration Act 1987 in such an appeal, which provides as follows:

47 Appeal against requirement to leave New Zealand

• …

• (3) An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.

11 Before the IPT hearing, the family obtained a psychological report relating to the children from Dr G McCormick. The IPT described Dr McCormick's report, which was new evidence before the IPT, in the following terms: 5

The son was described to Dr McCormick (presumably by his mother) as becoming increasingly withdrawn over 2010 and his academic performance had slowly deteriorated even though he was usually an able student. He had also become socially withdrawn and had not had contact with friends becoming increasingly pre-occupied with his situation and concerns about the future. The son described experiencing initial insomnia and frequent nightmares, a pervasively low and ruminative mood, increasing irritability with people, intrusive concerns about his safety and was “absolutely clear in his own mind that if he was to return to Sri Lanka he would be kidnapped, tortured and killed”. He presented as “an extremely frightened child”.

The son also described his attempted kidnapping “as a real and harrowing event”. He experiences flashbacks to this event and occasions when he clearly feels that he is in the kidnap situation again. His baseline anxiety is high and he has an exaggerated startle response.

Dr McCormick states that the daughter also presented as a frightened and traumatised person with high levels of baseline anxiety. She described her kidnapping “in vivid terms” and she too is convinced that if she had to return

to Sri Lanka she would be kidnapped again and tortured, abused or killed. Like her brother she is a timid person and it was difficult to discuss her traumas with her, but her memories of being in the police station are extremely frightening for her. She has lost 10 kg in weight, described hair loss and slept in her mother's bed as she felt too frightened to sleep on her own. She has a nightly nightmare, awaking in a frightened, startled and sweating state and also has daily headaches.

In the opinion of Dr McCormick, both children described symptoms consistent with a diagnosis of post traumatic stress disorder and, on the basis of the clinical symptoms, a trauma did occur and their presentation was inconsistent with feigned symptoms. Returning the children to Sri Lanka will increase their psychological...