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ER (Iran) [2020] NZIPT 801728 (21 December 2020)

Last Updated: 9 February 2021

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND

[2020] NZIPT 801728

AT AUCKLAND

Appellant: ER (Iran)

Before: B L Burson (Member)

Counsel for the Appellant: I Uca (with R Pidgeon & T Zohs on 15 September 2020)

Dates of Hearing: 11 August & 15 September 2020

Date of Decision: 21 December 2020


DECISION

INTRODUCTION


[1] This is an appeal against a decision of a refugee and protection officer, declining to grant either refugee status or protection to the appellant, a citizen of Iran.

[2] Pursuant to section 198 of the Immigration Act 2009 (the Act), the Tribunal must determine whether to recognise the appellant as:

[3] The appellant's claim and the reasons for the decision in respect thereof are withheld from publication pursuant to section 151 of the Act on the ground that disclosure of the same would be likely to identify the appellant.

[4] However, in coming to a decision in respect of the appeal the Tribunal has had to consider its function in relation to section 200 of the Act. The Tribunal received extensive submissions on this issue and its reasoning is set out below.

JURISDICTION

Relevant Statutory Provisions


[5] Where a refugee and protection officer has refused to consider a subsequent claim, section 195(1) of the Act provides that the person may appeal to the Tribunal. Where the decision to refuse to consider the subsequent claim was made under section 140(1) (on the grounds that there is no significant change in circumstances) and the person has then appealed under section 195(1)(a), section 200 relevantly provides:

200 Determination of appeal against refusal or declining of subsequent claim for recognition as refugee or protected person

(1) Where an appeal is brought under section 195(1)(a), the Tribunal must first consider—
(2) The Tribunal must dismiss the appeal if it determines that—
(3) The Tribunal must consider the claim for recognition in accordance with section 198(1) if it—

[6] There are two limbs to the subsequent claim jurisdiction — broadly speaking a ‘changed circumstances’ limb (subsection 1(a)) and a ‘good faith’ limb (subsection 1(b)). As noted in AG (Sri Lanka) [2011] NZIPT 800092 at [8] (in relation to the identically phrased section 140(1)):

The first point to note is that the statutory test... is bifurcated. The first limb directs attention to the circumstance itself and its relationship to the first or prior claim. If the circumstances do not meet the criteria... they cannot be relied on to establish jurisdiction. If these criteria are met, the circumstances, prima facie, constitute a qualifying circumstance for the purpose of establishing jurisdiction. However, in such instances, the second limb must then be addressed. The second limb... is concerned with the background to the circumstance itself and how it came to be.


[7] It is settled law that such consideration involves an assessment of the second or subsequent claim, as asserted again the claim advanced previously AR v Refugee and Protection Officer [2016] NZHC 2916 at [50]; EW (Sri Lanka) v Refugee Protection Officer [2018] NZHC 2130, [29]–[30].

Submissions of the Parties


[8] The submissions of counsel reveal some common ground. There is no dispute that section 200 provides a clear roadmap. The Tribunal has no power to consider the issue of ‘good faith’ until it has ‘determined’ that the asserted change(s) in circumstances are significant, are material to the claim, and arise after the determination of the previous claim. This is plainly correct; the introductory ‘if so’ language to the ‘good faith’ limb clearly indicates the contingent nature of this aspect of the inquiry into jurisdiction.

[9] Similarly, the parties agree that the ‘good faith’ limb under section 200(1)(b) is ‘at large’ and is not limited to the circumstances which attracted the ‘bad faith’ determination by the refugee and protection officer (RPO). The Tribunal also agrees. This derives from the de novo nature of the Tribunal’s inquiry in relation to an appeal in which, unlike the circumstances in CH (China) [2016] NZIPT 800881 and DY (Fiji) [2014] NZIPT 800375-380, 800419, the good faith principle is live in accordance with the express wording of the Act. The alternative would be that the claimant would have to lodge a further claim in relation to the circumstances arising after the RSU decline. However, the Act prohibits this as the circumstances must have arisen since the determination of the previous claim which would still be extant. In any event, the issue of any implied ‘good faith’ jurisdiction beyond the clear terms of the Act has been emphatically rejected by the Court of Appeal in YLs v Refugee and Protection Officer [2017] NZCA 582.

[10] Nevertheless, issues have arisen in relation to the nature of Tribunal’s obligations under section 200(1) and (2). In particular, as to:

[11] The Tribunal records its gratitude to all counsel for their submissions, which have been of assistance.

Relevant Principles of Interpretation


[12] In YLs v Refugee and Protection Officer [2017] NZCA 582 at [22], footnote 18, the Court of Appeal, when considering the issue of whether the Tribunal had an implied power to consider ‘good faith’ under the Act summarised the “well-known” principles of statutory interpretation as follows:

We are to construe the relevant provisions, here principally found in pt 5 of the Act, in light of the plain meaning of the words used as understood in the context of the scheme and purpose of the Act as a whole, guided by the Act’s legislative history. We are to check any interpretation we reach based on plain meaning for consistency with that scheme and purpose. Case law and academic commentary can inform that analysis.

Purpose


[13] The Act has both general and specific purposive provisions. The general purpose of the Act as a whole is set out in section 3 which relevantly provides:

Purpose

(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals.

(2) To achieve this purpose, the Act establishes an immigration system that—

...

(d) provides a process for implementing specified immigration-related international obligations; and

...

(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals;


[14] Also, Part 5 of the Act, in which the refugee and protection regime is located, has its own specific purposive provision. Section 124 of the Act provides:

Purpose of Part

The purpose of this Part is to provide a statutory basis for the system by which New Zealand—

(a) determines to whom it has obligations under the United Nations Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees; and
(b) codifies certain obligations, and determines to whom it has these obligations, under—
[15] Any consideration of the ‘purpose’ of section 200 must take into account not only the overall general purpose of the Act as a whole, but also take into account, and be reconciled with, the specific purposive provisions of the other Parts of the Act.

Compliance with international obligations


[16] Given that section 200 of the Act requires the domestic application of international protection law as manifested under the Refugee Convention, the 1984 Convention Against Torture and the 1966 International Covenant on Civil and Political Rights, all counsel rightly draw attention to the principle that, when interpreting a statute, it is presumed that Parliament intends to legislate consistently with its international obligations. See also the line of authority from Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).

[17] This principle of statutory interpretation requires administrative discretions to be exercised consistently with international treaty obligations and for decision-makers to take into account relevant considerations arising from relevant international instruments. It also means, as is the case with regard to the Tribunal’s refugee and protected person jurisdictions, that the scope of the

protection obligations under sections 129–131 is shaped or clarified by reference to the international instruments which lie behind those sections; see the discussion in DS (Iran) [2016] NZIPT 800788 at [114]–[130].


[18] Insofar as the Immigration Act 2009 as a whole is concerned, the Supreme Court has been very clear on this basic point: see the discussion in Ye v Minister of Immigration [2009] NZSC 76; [2010] 1 NZLR 104 at [24]–[25] and Helu v Immigration and Protection Tribunal [2015] NZSC 28 at [144]–[145].

[19] Further, in relation to the subsequent claim jurisdiction specifically, in YLs v Refugee and Protection Officer, the Court of Appeal, at [63], noted “the centrality of New Zealand’s international obligations to the Act’s scheme”. While the parties agree on this basic principle, they differ significantly in terms of what it means for the interpretation of section 200, as it relates to the Tribunal’s powers under section 200. As will be discussed below, this core or central aim of the Act shapes the content of the Tribunal’s statutory function to ‘determine’ the matters comprising the two limbs of the section 200 jurisdiction.

Legislative history


[20] The legislative history to section 200 of the Act is helpfully set out in the 30 September submissions of counsel for the respondent. While counsel for the appellants submit that, in the case of section 200, recourse to the legislative history is “of little help” and should be treated with caution, recourse to the legislative history does reveal some important points as regards to the content of to the Tribunal’s powers under section 200. In AU (Afghanistan) [2017] NZIPT 502815 (Ruling on Jurisdiction), the Tribunal also had regard to the legislative history, including the relevant background papers. It concluded:
[21] Examination of the legislative history to section 200 as it currently stands shows that Parliament’s intentions regarding the interplay of these three main policy objectives in relation to second or subsequent claims, is readily discernible in every respect.

[22] What is clear is that section 200 has its origins in a decision of the RSAA issued almost a quarter of a century ago. In a case which has attracted some measure of adverse comment, the RSAA determined that such persons were not owed protection on the basis that they were refugees; see Refugee Appeal No 2254/94 (21 September 1994) and Refugee Appeal No 70100/96 (28 November 1997). In Refugee Appeal No 2254/94 (21 September 1994), at p52, this was described as concerned with preventing:

... [a]sylum seekers [being] able to demand, as of right, the grant of refugee status simply because that status was sought. A person could become a refugee as a matter of his or her own choice.


[23] At the time, the RSAA operated on an extra-statutory basis. Nor, as its name implied, did it have any jurisdiction to assess entitlement to complementary protection. The placing, in 1999, of the RSAA on a statutory footing with amendments to the 1987 Act did not bring with it any statutory jurisdiction to consider bad faith. In fact, regardless of the basis upon which the RSAA operated, the good faith principle was rarely found to be engaged: see CH (China) [2016] NZIPT 800881 at [56]:

While Refugee Appeal No 2254/94 (21 September 1994) asserted the jurisdiction, it was in fact rarely invoked by the Authority. The Tribunal is aware of only two other decisions of the Authority in its 20-year history, in which ‘bad faith’ was relied on by the Authority. In all three cases, the ‘good faith’ finding followed a finding that, separately from any question of bad faith, the claimant did not, in fact, have a well-founded fear of being persecuted.


[24] In DY (Fiji) [2014] NZIPT 800375-380, 800419, the Tribunal reconsidered the good faith principle in order to determine whether it had an implied power to consider this issue in circumstances where the RSU (RSB as it then was) had not. Concluding that no such implied power existed, the Tribunal conducted a detailed examination of international jurisprudence and academic commentary, noting that the overwhelming weight of international opinion was that the good faith principle were inconsistent with the Refugee Convention; see [59]–[85]. This finding was reconfirmed by the Tribunal in CH (China) [2016] NZIPT 800881 at [74]. Noting the Tribunal’s jurisprudence, the Court of Appeal has reached a similar conclusion as to this inconsistency in YLs v Refugee and Protection Officer [2017] NZCA 582, at [60].

[25] The transposition of the controversial jurisprudence of the RSAA into New Zealand immigration legislation has occurred in stages. When introduced, the Immigration Bill 132–2 did not expressly mention ‘good faith’ although it did require at clause 130 that, in the case of a subsequent claim, the RPO be satisfied

that the asserted change in circumstances was not brought about for “the purpose” of creating grounds for recognition under the clauses relating to entitlement to refugee or protected person status. An identical clause 178(1)(b) existed in relation to the Tribunal.


[26] Clauses 130 and 178 were subsequently amended at the select committee stage by removing reference to the clauses relating to recognition as a protected person and changing “the purpose” to “a purpose”. The Immigration Bill 2007 (132–2) (Transport and Industrial Relations Committee Report) at p18 makes clear the concern:

Limitation on subsequent claims

Clause 130, as introduced, would mean that if a former refugee status claimant under the 1987 Act tried to lodge a protection claim under the bill, their claim would be refused if their circumstances had not changed. This would potentially breach New Zealand’s obligations under the CAT and the ICCPR.

To avoid any such breach, we recommend an amendment requiring a refugee and protection officer to dismiss a subsequent refugee claim, but not a protection claim, if there has been no significant change in circumstances, or if the change was created by the claimant for a purpose of creating grounds for recognition as a refugee.


[27] These changes reflect similar concerns as outlined in the report of the Department of Labour to the Transport and Industrial Relations Committee (4 April 2008) at [821]–[822]. In relation to the issue of the creation of grounds for recognition, the Departmental noted:

Clause 130(1) Submission

823 RSAA submits that the wording in clause 130(1)(b) begs the question of whether “creating grounds for recognition” was one purpose, a primary purpose, or the sole purpose of the claimant’s actions.

...

Departmental Response

...

826 Officials consider that any intent of a subsequent claimant (be it primary, sole or otherwise to manufacture grounds for recognition as refugee or protected person should lead to a refusal of the claim for consideration. The bill should therefore be amended so that a subsequent claim can be refused for consideration if the change in circumstances was brought about by the claimant for a purpose of creating grounds for recognition.


[28] However, in relation to the Tribunal’s powers on appeal under clause 178, the report noted:

Clause 178 – Determination of appeal against refusal of subsequent claim Submission

1204 Clause 178 provides grounds for declining appeals against subsequent claims. ADLS submits that some refugees generate subsequent claims by publicising their opposition to the regime in their home country, which can lead to abuse of the system. It submits that:

...if such actions genuinely lead to a real chance of persecution for the appellant New Zealand would breach the non-refoulement obligation in the Convention by declining a refugee claim on that ground alone. As the Bill stands the Tribunal would be powerless to prevent this situation from arising...It is recommended that clause 178(2) be amended to read “it may dismiss the appeal” instead of “it must dismiss the appeal”.

Departmental Response

1205 Officials consider that it is appropriate that appeals against subsequent refugee status claims are limited in this way, in order to prevent abuse of the system by bad faith claimants. However, in order to avoid breaching our obligations under the CAT and ICCPR, the provision could be amended so that the Tribunal could not dismiss subsequent protection claims.

Recommendation

1206 It is recommended that the Bill be amended so that the Tribunal must dismiss a subsequent refugee appeal, but not a protection appeal, if the grounds for change were created by the appellant, or there is no significant change in circumstances.


[29] The language of ‘good faith’ as a separate jurisdictional criterion was introduced by Supplementary Order Paper 2009 (32) Immigration Bill 2007 (132--2). The Parliamentary debates indicate that the concern was to address those cases where refugee claimants publicised the fact of their claim in the media, which was in turn then leveraged to support the claim of a risk of being persecuted; see Hansard (25 August to 24 September 2009) 657 NZPD 6748.

[30] These departmental recommendations and the ‘good faith’ amendment were adopted and, when originally enacted, section 200 read:
  1. Determination of appeal against refusal or declining of subsequent claim for recognition as refugee or protected person

[31] This meant that persons who were shut out of the refugee status determination process by reason of the application of the good faith principle to their circumstances, were still able to have their claim for protection substantially assessed by the Tribunal against the protected person criteria under sections 130 and 131. In terms of the three overarching principles driving the scheme of the Act as a whole, as identified in AU (Afghanistan) [2017] NZIPT 502815, compliance with the international obligation of non-refoulement was given a greater weighting than any efficiencies gained by removing the ability of the Tribunal to assess the protected person claim, an absence of good faith notwithstanding.

[32] The Immigration Amendment Act 2013 (the 2013 Amendment Act) altered the landscape of the second or subsequent claim jurisdiction by amending section 200(1)(b)(ii) and 200(2)(b)(ii) to read:

for a purpose of creating grounds for recognition under any of sections 129 to 131


[33] One interpretation is that Parliament intended to carve out an exception to the non-refoulement obligation entirely for persons who were found to have acted in bad faith and for a purpose of creating a ground for recognition. The Court of Appeal in YLs at [63], interpreting section 200 some years after the introduction of this amendment, came to the conclusion that the introduction of a ‘good faith’ element into the process constitutes a derogation from international obligations. While this is the case at the general level, it is far from clear from the consideration of the background material that, by passing the Immigration Amendment Act 2013, Parliament intended to absolutely derogate from the non-refoulement obligation in cases where good faith was found to be lacking.

[34] In its introductory commentary report in relation to the Immigration Bill 132– 2 itself, the Transport and Industrial Relations Committee was very clear as to the

need to respect the non-refoulement obligation in relation to protected persons, notwithstanding that they were not otherwise to be equated with obligations towards refugees. It stated at pp14–15 (emphasis added):

Recognition as protected person under the Convention Against Torture and under the Covenant on Civil and Political Rights

...

The Refugee Convention requires New Zealand to meet minimum standards for the treatment of refugees, such as non-discrimination, and access to employment, housing, education, and the courts. The CAT and the ICCPR do not include any such requirements for the treatment of protected persons once they are in New Zealand, and there is no intention to replicate New Zealand’s refugee obligations for protected persons in the legislation. New Zealand’s fundamental immigration-related obligation arising from the CAT and the ICCPR is not to return a person to a country where he or she would be in danger of particular human rights abuses.

We therefore recommend that the bill be amended to make it clear that protection status only prevents a non-citizen from being returned to a country where he or she would be in danger of torture, arbitrary deprivation of life, or cruel treatment; and it does not bestow a particular immigration status or prevent deportation to other countries where the non-citizen would not face that danger.


[35] In other words, Parliament’s clear intention when the Immigration Act came into force was to continue to observe the non-refoulement obligation, but to deny to persons granted protected person status any express or implied statutory entitlement to the bundle of status-related rights that are attached to recognised refugees under the Refugee Convention.

[36] Given this clear expression of Parliamentary intention to observe this ‘fundamental immigration-related obligation’ — a centrality to the Act’s scheme as recognised in YLs — it is reasonable to expect in the background materials to the 2013 Amendment Act, an equally clear renunciation of it in cases where good faith is lacking, a risk of resulting exposure to torture, arbitrary deprivation of life or cruel treatment notwithstanding.

[37] However, such clear renunciation is lacking.

[38] The Immigration Amendment Act 2013 was principally concerned, not with subsequent claims as such, but with what amendments to the Act were necessary to deal with mass arrivals of asylum seekers who lodge simultaneous claims. While the reason is not clear from the background material, the issue of how to deal with subsequent claims became one of a number of existing processes identified as relevant to consider. Other areas concerned immigration detention, suspension of the processing of claims, and judicial review. Further, within the

area of subsequent claims, the issue of jurisdiction “when there has not been a material change in circumstances” was one of four possible measures identified (the others retaining the status quo), removing the obligation for an oral hearing and removing obligations to consider third subsequent claims.


[39] It is significant however, in terms of divining the legislative intent behind the 2013 Amendment Act in relation to the non-refoulement obligation, when describing the risks of the “status quo” of the Immigration Act 2009, the risk against which all the other measures were being assessed was identified, in the Department of Labour’s Regulatory Impact Statement (3 July 2012) at p11, as being (emphasis added):

There are still some opportunities for claims without merit to be pursued as a means of extending the time that people can stay in New Zealand.


[40] This description is significant as the fundamental problem with the ‘well-founded bad faith’ case, is not that the claim is without merit from a legal standpoint vis-à-vis the international obligation of non-refoulement, but that the claimant is in some way an unmeritorious potential recipient of a protection-related status, having concocted grounds for recognition with an absence of good faith. This concern with unmeritorious claims, as opposed to unmeritorious claimants, is echoed in the substantive elaboration, as a proposed measure, of “refusing to consider subsequent protection claims (as well as refugee status claims) in cases where there has not been a material change of circumstances”, at p12 of the Regulatory Impact Statement (3 July 2012) (emphasis added):
Possible measure 3
Refusing to consider subsequent protection claims (as well as refugee status claims) in cases where there has not been a material change of circumstances
Description
The limitation that already applies under Section 140(1) to refugee claims could be extended to claims for protection under the CAT and the ICCPR.
Impacts
□ Would treat all claims for protection in a consistent way, whatever international convention the claim was being made under.
□ Would reduce incentives for people to lodge second or further protection claims without merit in order to prolong their stay in New Zealand, and expedite the processing of such claims if they were made.
□ Decisions made by refugee and protection officers under this provision could still be appealed to the Tribunal.


□ It is not possible to assess exactly how many claims might be affected in practice by this change.
Risks
□ Legislative provision for people to make claims for protection under the CAT and the ICCPR was only introduced under the 2009 Act (and come into force on 29 November 1010)
Legislative implications
Amendments to the Immigration Act 2009 would be required.
Financial implications
Nil.

[41] This makes no direct mention of the separate good faith limb. Nor, in assessment of the risks associated with this option, was the potential for New Zealand to be in breach of its non-refoulement obligation identified.

[42] The report of the Ministry of Business, Innovation and Employment to the Transport and Industrial Relations Committee (18 July 2012) also makes no mention of the proposed changes in the Immigration Amendment Bill in any way impacting on New Zealand’s non-refoulement obligation outside the Refugee Convention. At paras 16–17, the Ministry records that the protected person jurisdiction is the means by which New Zealand, “gives effect to non-refoulement obligations under [Convention Against Torture] and [A]rticles 6 and 7 of the ICCPR”. Yet, Appendix B of the report, which summarises “New Zealand’s international Obligations in Relation to the Bill”, while expressly referring to the ICCPR, makes no mention whatsoever of the potential impact on the non- refoulement obligation arising under Articles 6 and 7 of the ICCPR. The Convention Against Torture is not mentioned at all.

[43] Although concerns were raised in submissions to the Transport and Industrial Relations Committee about the impact of the proposed streamlining of the appeals process, that the legislature never understood that, through the 2013 Amendment Act, it was derogating from its international obligations emerges from the Immigration Amendment Bill 2012 (16–2) (Transport and Industrial Relations Committee report) itself. Rather, if anything, the opposite is true. The Immigration Amendment Bill 2012 (16--2) records, at p2:

We accept that New Zealand is a signatory to a range of international instruments that impose obligations on New Zealand for refugees and protected persons. While most submitters argued the bill does not align with New Zealand’s international obligations, most of us are of the view that necessary safeguards have been built into the legislation to ensure compliance with these obligations.


[44] In the Tribunal’s view, the background material establishes:

[45] Given these matters, in the Tribunal’s view, care is needed before ascribing to Parliament an intention to derogate from the non-refoulement obligation, in cases of well-founded bad faith.

[46] That there was never an intention to derogate from the non-refoulement obligation by means of the 2013 Amendment Act coheres with the evidence of Mr Maritz. Mr Maritz was clear that, operationally, INZ’s Compliance Branch regards itself as absolutely bound by Articles 6 and 7 of the ICCPR as well as Article 3 of the Convention Against Torture and would not, under any circumstances, seek to remove persons where it was established a sufficient degree of risk of such forms of harm happening existed.

[47] Indeed, following Mr Maritz’s evidence, counsel for the respondent sought instructions and gave an assurance to the Tribunal that the statement of position it made in Zaoui v Attorney General (No 2) [2006] 1 NZLR 289 remained extant, namely, the Crown accepts that it is obliged to act in conformity with New Zealand’s obligations under Articles 6(1) and 7 of the ICCPR and Article 3 of the Convention Against Torture and would not remove the appellant in breach of any non-refoulement obligation, should that be engaged.

[48] For these reasons, the Tribunal is not satisfied that Parliament has intended to carve out any exception to the non-refoulement obligation where there is an absence of good faith. Counsel for the appellant’s submission that section 200 effectively ‘derogates’ from Article 33 of the Refugee Convention overstates matters. Rather, the Tribunal has no statutory authority to conduct the assessment into recognition; that is all. It is to be recalled that, at least in relation to refugee status, status determination is declaratory, not constitutive. This status

exists under international law and the refugee status determination assessment process is simply the mechanism by which New Zealand confirms the existence of this status for the purpose of conferring on the appellant his or her entitlement to the benefits of that status, as expressed under its domestic law. As things stand, as a result of the 2013 Amendment Act, this assessment must occur elsewhere within the overall system and appears to be, at least in first instance, the internal review process adopted by INZ’s Compliance Branch, as detailed by Mr Maritz.


[49] Nevertheless, the Tribunal is of the view that this entirely appropriate commitment to continue to observe the non-refoulement obligation in well-founded bad faith cases, does inform how the Tribunal is to discharge its statutory functions, most particular in the giving of reasons under the clear roadmap in section 200 of the Act.

[50] Before discussing that issue, it is necessary to say something about the elements of the changed circumstances limb.

Section 200 and the Assessment of Risk for the Purposes of Establishing Jurisdiction


[51] Section 200 requires consideration of ‘materiality’ to the claim. At a minimum, this requires that the asserted change in circumstances is, in some way, relevant to the asserted predicament of the appellant. To give obvious examples, an outbreak (whether initial or a resumption) or intensification in a conflict in a part of the country of origin, not impacting on the part of the country where the appellant will live, or human rights abuses committed against segments of the populations to which the appellant does not belong, will not be material to the claim even if, in a general sense, they are significant changes in country conditions.

[52] But this does not exhaust the requirement for materiality. The text of the section as a whole gives further important clues in this regard. The requirement of materiality to ‘the claim’ must necessarily take hue from the definition of a ‘claim’ set out in section 4 of the Act, which defines a claim as:

claim means a claim by a person in New Zealand for recognition, as the case may be, as—


(a) a refugee in New Zealand under the Refugee Convention:

(b) a protected person in New Zealand under the Convention Against Torture:

(c) a protected person in New Zealand under the Covenant on Civil and Political Rights.

[53] Viewed thus, the phrase “material to the claim” must therefore be at least a circumstance of significance (since the determination of the last claim) which, on its face, has some bearing on whether the claimant’s now-asserted predicament might lead to recognition. It must be recalled that, at its core, the act of recognition in relation to each of the Act’s protection mechanisms revolves around an assessment of future risk of qualifying harm. For this reason, the presence or otherwise of past persecution, while a relevant factor, is not determinative of status. In DS (Iran) [2016] NZIPT 800788 the Tribunal noted, in its reframing of the human rights based inquiry into being persecuted, the forward-looking nature of the inquiry as follows: (emphasis added):
[54] In Refugee and Protection Officer v CV and CW [2016] NZCA 520; [2017] 2 NZLR 585, at p606, the Court of Appeal endorsed this approach, which revolves around an assessment of the prospective risk of harm.

[55] That section 140 generally is fundamentally concerned with asserted changes in risk vectors was recognised by the Court of Appeal in WK v Refugee and Protection Officer [2018] NZCA 258 at [43] when discussing section 140(3):

Inherent in the application of s140 to a subsequent claim is the assessment of any new risk identified by the claimant in that subsequent claim. This may include a change in circumstances in the refugee’s country of origin, an intensification of pre-existing factors that increase the risk of persecution, or where an individual’s conduct has heightened their risk of persecution.


[56] Hinton J in EW (Sri Lanka) v Refugee and Protection Officer [2019] NZHC 741 was of the same view:

[25] For the change in circumstances to be material to the claim, as the Tribunal stated in this case and Muir J said was orthodox, it must be a change which is material to the underlying risk of persecution. I agree.


[57] Counsel for the respondent submits that the test under section 200(1) does not mean that the claimant is “in fact” at risk or that the risk is “in fact” materially impacted by the asserted changed circumstances. This is correct. At this stage of

the process, the Tribunal has not reached the point in which it becomes vested with statutory authority to “consider the claim” and is precluded from making substantive findings of fact. Yet, counsel for the respondent also accepts that the ‘changed circumstances’ limb of section 200(1) addresses circumstances which “may impact on the claimant’s risk”.


[58] To be significant and material to the claim, the asserted changed circumstance must have some sufficient impact on the risk to the appellant so as to potentially lead to recognition under one of the protection mechanisms, notwithstanding that a prior assessment has concluded, in relation to the previously existing circumstances, that no sufficient degree of risk existed.

[59] To be clear, however, ‘risk’ for the purposes of the subsequent claim jurisdiction is not about changes in the legal standard of risk; this always remains at the real chance level in the case of refugee status or the broadly equivalent ‘in danger’ standard in the case of entitlement to protected person status; see the discussion in AI (South Africa) [2011] NZIPT 800050-53, at [80]–[85]. A person bringing a second or subsequent claim is not obliged to establish some elevated, or different, degree of risk.

[60] Rather, ‘risk’ relates to changes (a) in the degree of risk, but only insofar as it indicates that a risk previously assessed as being below the real chance or in danger standard may now reach that standard; or (b) in the nature of risk involving different rights or more serious forms of harm than existed during the currency of the prior claim.

[61] None of this implies that the ‘claim v claim’ approach is abandoned. But what must be recognised is that, under this approach, what is being compared is the underlying assertions of circumstance which are then assessed comparatively in terms of their relationship to risk. In simple terms, what was the risk based on claim one, as asserted, versus the current risk based on claim two, as asserted. By this means, the ‘claim v claim’ approach captures in its orbit intensification cases. While at this stage, the Tribunal is not making a substantive assessment of risk, some engagement with the question of risk is required to signal whether and how the asserted changed circumstances are at least prima facie significant and material in terms of risk.

[62] This brings us to the issue of the extent of the Tribunal’s obligation to give reasons explaining its determination of the changed circumstances limb, when it has gone on to determine that the good faith limb has not been satisfied.

The Tribunal’s Obligation to Give Reasons in Relation to its Function to ‘Determine’ Whether There Has Been a Significant Change of Circumstances Material to the Claim


[63] The starting point is, as observed by Mr Zohs in his closing submissions, that under section 200(1) of the Act, the Tribunal has two separate, but interlinked, statutory functions: to first ‘consider’ and then ‘determine’ whether there has been a significant change of circumstances material to the claim. Further, as Ms Garden drew attention to, there is a contrast between section 200(1) and the language of section 140(1) of the Act which details the powers of an RPO to consider the merits of a subsequent claim; the latter being couched in terms of the officer being ‘satisfied’ as to the threshold for jurisdictional issues.

[64] The differing language informs the Tribunal’s ‘determination’ function. It means bringing finality to the assessment of the underlying issue or, to use Mr Pidgeon’s phraseology, ‘certainty’. A textual analysis thus indicates that it is the conclusion reached by the Tribunal as to the matters referred to in section 200(1) which brings the process relating to the establishment or otherwise of the jurisdiction to submit the claim to a full status determination process to a close. This is uncontroversial.

[65] It is clear that, insofar as the Tribunal determines anything at all at the section 200 stage of the process, it is only as it relates to the existence or otherwise of jurisdiction to hear the substantive merits of the claim. At this point, there is no determination of the merits. The power to do so is only conferred on the Tribunal, under section 200(3), after it has completed the section 200(1) and (2) determination. It is only at this point, under sections 200(3) and 198(1), that the circumstances asserted by the appellant will be subjected to a credibility assessment in accordance with ordinary principles, and the claimant’s predicament then assessed in relation to the facts as found. In other words, insofar as the Tribunal has a determination function at the section 200(1) and (2) stage, it is limited to establishing the necessary ingredients as directed by the legislation to find jurisdiction; no more, no less.

[66] Nevertheless, para 17(3) of Schedule 2 of the Act provides:

A decision of the Tribunal must be given in writing, and include reasons both for the decision and for any minority view.


[67] The Tribunal is statutorily required to put its decisions in writing. It must, under general principles of fairness, give adequate reasons. This obligation

inheres to both limbs of the section 200 inquiry. If satisfied that the good faith limb has not been established, its decision on jurisdiction will be dispositive of the appeal. There is no statutory authority to go on and consider the good faith limb.


[68] But, where it is satisfied as to the changed circumstances limb, the good faith limb must be addressed. In this class of appeals, the extent to which these statutory and natural justice obligations require the Tribunal to explain its determination in relation to the changed circumstances limb is, in the Tribunal’s view, contextualised by the legislative intention to continue to observe its international obligations, the Tribunal’s lack of power to conduct the substantive assessment notwithstanding.

[69] As to how much reasoning is required, the Tribunal is cognisant of the need not to over-elaborate. The degree to which the Tribunal will be required to foreshadow any potential concerns about risk will depend on the particular circumstances. The need may be greater where it is clearly established that ‘bad faith’ actions intersect with known country information or previous findings of the Tribunal to create an increased risk of harm which, but for the absence of a good faith determination, might suggest a strong substantive claim.

[70] To be clear, however, this does not mean that anything like a full assessment is to be conducted, which the Tribunal has no authority to conduct. It cannot usurp the function which rests with the respondent in the first instance.

[71] Nevertheless, such an approach is consistent with the statutory recognition of the Tribunal as the specialist refugee and protection status determination body within the overall immigration system, as recognised in section 218 of the Act. Such an approach, which provides a means by which the Tribunal, based on its knowledge and experience of the relevant law and country conditions, signals that the new circumstances might engage New Zealand’s international non- refoulement obligation in the event that the claim is assessed and found to be credible, provides an important safeguard, even if it is precluded by the Act from carrying out the substantive assessment.

Does the Whole of the Appeal Need to be Dismissed?


[72] Counsel for the appellant correctly observe that any individual claim may involve multiple separate grounds for recognition as a refugee. Many in fact do. They submit that the statutory direction to “dismiss the appeal” in section 200(2) is to be interpreted as applying only to the ground to which the bad faith act(s) of the

appellant attach; the remaining grounds, untarnished by the bad faith finding are able to be assessed and status appropriately recognised where relevant risk is established.


[73] Counsel for the appellant laid heavy emphasis on section 193(3) of the Act which directs the Tribunal to act in accordance with the Refugee Convention. Certainly, as noted in AC (Syria) [2011] NZIPT 800035, the Refugee Convention is afforded primacy under the Act: refugee status determination is prioritised over the Act’s complementary protection mechanism. The definition of a refugee is that set out in the Refugee Convention, largely unencumbered (bad faith being a clear exception) by statutory overlays. Yet, this primacy is not absolute. As noted in YLs v Refugee and Protection Officer at [48], there is a hierarchy mandated under the Act. The wording of section 193(3) means that the Tribunal is first to have regard to the provisions of the Act, and only if the matter is not addressed therein is it to act consistently with the Refugee Convention. This does not provide any basis for the Tribunal ignoring the plain wording of the Act, at least insofar as it expresses the clear purpose of Part 5.

[74] In oral argument at the hearing on 15 September 2020, counsel for the appellant emphasised the widespread acceptance in the case law that the good faith principle was inconsistent with the Refugee Convention. They submit that, while Parliament was free to legislate for the good faith principle, the Act is to be interpreted restrictively in order to reduce the potential that New Zealand breaches its non-refoulement obligation. To do otherwise would amount to the ‘window dressing’ of its international obligations contrary to the caution sounded in Tavita v Minister of Immigration. They note the desirability of “international comity” on the application of core elements of the Refugee Convention. They have urged a severability approach to the statutory obligation to dismiss an appeal in relation to the subsequent claim where the Tribunal determines that bad faith is present only in relation to a subset of the circumstances relied upon.

[75] In response, the Crown submits that the plain wording of section 200 brooks no gloss or overlay: it is expressed in clear and unambiguous terms and comports with the Parliamentary purpose. Accordingly, there is no room for reading it down so as to confer on the Tribunal a discretion whether or not to dismiss the whole claim, or to dismiss only that element of the claim to which the issue of bad faith attaches.

[76] In YLs v Refugee and Protection Officer at [59], the Court of Appeal, citing the Tribunal’s jurisprudence favourably, observed:

While there used to be a broad good faith requirement, the new statutory scheme introduced in 2009 “signalled a clear departure from such a broad application of a good faith principle and provided for specific, limited circumstances in which good faith could be considered”. As was comprehensively addressed in DY (Fiji), this move “reflects the predominant international consensus on this issue, as articulated in both academic commentary and jurisprudence from other jurisdictions”.


[77] This notwithstanding, the Tribunal agrees with the submission of the Crown on this point. The wording of the section is clear. The Tribunal must dismiss “the appeal” if “one or more” circumstances is tainted by bad faith. This language explicitly recognises that, within the appeal, there may be more than one circumstance being relied on. While, as discussed above, it is far from clear that Parliament had in its mind the purpose of creating a derogation from the non-refoulement obligation, the Parliamentary intention was clearly to have a more streamlined process which took the Tribunal out of the risk assessment equation.

[78] The arguments about inconsistency are accepted, but the reality is that a good faith requirement features in the Immigration Act 2009. While the good faith principle is a legacy principle, and not one which can be regarded as being consistent with the Refugee Convention, Parliament has not seen fit to remove it. It is simply not possible for the Tribunal to airbrush out of its statutory functions its obligation to dismiss the appeal in its entirety where it determines at least one aspect of the change of circumstances has been brought about by bad faith. As noted by Blanchard J in Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 (NZSC) at [31], in some instances, words “must be held to mean what they say. The ... language does not support any other interpretation”.

The Actions of Third Parties and Bad Faith


[79] It is clear from the legislative history that, at the time the 2009 Act was enacted, Parliament was concerned with use of the media by refugee claimants to publicise their claims in some way. However, for reasons which are not clear, the Act does not expressly confer on the Tribunal the same obligation as it does on the refugee and protection officer (RPO) in relation to acts of third parties who may bring media attention to the claimant’s circumstances.

[80] Section 140(2) provides that, so far as the RPO is concerned, the RPO “must not treat the actions of any other person in relation to the claim or the claimant as a mitigating factor”. This means that the good faith actions of third parties which may give rise to a significant change in circumstances material to the claim will not preclude a finding of bad faith being made against an appellant

where the acts of the third party were predicated on circumstances brought about by the appellant acting in bad faith. No similar provision exists under section 200.


[81] Counsels’ submissions differ on the issue of whether, in exercise of its powers to inquire into bad faith under section 200(1)(b), the Tribunal is required to take a similar approach to that set out in section 140(2) of the Act as regards to the actions of third parties.

[82] However, in the Tribunal’s view, this cannot be remedied by interpretation in the way that counsel for the respondent contends. For the reasons already given, the good faith principle is fundamentally inconsistent with the Refugee Convention and, consequently, no implied power exists under section 193(3) to expand the scope of the good faith principle to include the action of third parties. If this power exists at all, it can exist only in relation to the powers expressly given. As the Act is drafted, there has been no extension to capture, on appeal, good faith actions of third parties.

[83] Nor can it be said to be necessary to give efficacy to the functioning of the good faith principle. It is capable of being applied without this extension.

[84] In conclusion, as drafted, the Tribunal is not obliged to take the same approach as the RSU in relation to the good faith acts of third parties which may create risk where there is also ‘bad faith’ acts by an appellant.

ASSESSMENT OF JURISDICTION

Has There Been a Significant Change of Circumstances Material to the Claim Since the Determination of the Appellant’s Sixth Claim


[85] The answer to this is clearly yes. The appellant has posted a comment in the video relating to the mullah being killed, and other posts relating to demonstrations which have arisen after the determination of the previous claim in 2018. Also, the circumstances of the appellant’s detention in 2020, and the protests and petitions of his supporters occurred well after that date. The public nature of the matter is, in itself, significant in terms of its potential to impact upon the risk to the appellant. In this regard, it is to be remembered that, in 2018, the Tribunal had already signalled that, at that time, the appellant may have also been at risk of being persecuted because of his posts on the PRNZ Facebook page.

These circumstances are also material to his claim as they centre on him and directly inform risk to him in Iran.

CONCLUSION


[86] For reasons which are withheld from publication as aforesaid, the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention.

[87] The Tribunal finds that the appellant:

[88] The appeal is allowed.

“B L Burson” B L Burson Member

Certified to be the Research Copy released for publication.

B L Burson Member


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