Country Information and Evidence Assessment in New Zealand

COUNTRY INFORMATION AND EVIDENCE ASSESSMENT
IN NEW ZEALAND

COI in Judicial Practice - Budapest

13-15 April 2011

Rodger Haines, QC1

INDEX

INTRODUCTION

Statistics

THE REFUGEE AND PROTECTION DETERMINATION SYSTEM IN NEW ZEALAND - PAST AND PRESENT
A brief history
Domestic incorporation of CSR, CAT and ICCPR
A two-tier determination system
Responsibility to establish claim
An individualised assessment and the limitations to COI
An inquisitorial process
High emphasis on credibility of claimant
Only publicly available information
Classified information
Confidentiality maintained
Challenging a decision of the IPT

ACCESSING COI - THE RRIB
Advantages of a specialised research unit
Language barriers
Cooperation between COI researchers and decision-makers

APPROACH TO COI - TRIBUNAL LEVEL
Disclosure
Consistent interpretation of COI

COUNTRY GUIDANCE CASES
Country guidance cases - some conclusions
Country guidance to be distinguished from precedent setting decisions on the law

THE LIMITATIONS OF COUNTRY INFORMATION - COI AND CREDIBILITY ASSESSMENT
A few observations about credibility assessment
A few observations about assessing the credibility of COI

CONCLUSION

TABLES

INTRODUCTION

[1] This paper aims to provide an overview of the way in which country information (COI) has been used and assessed in the New Zealand refugee status determination system, a system which from 29 November 2010 was enlarged beyond the Refugee Convention (CSR) to include claims to complementary protection under the Convention against Torture (CAT), Article 3 and under the International Covenant on Civil and Political Rights (ICCPR), Articles 6 and 7 as well as to claims for humanitarian protection.2 The primary focus of the paper is on the use of COI at the appellate level.

[2] In New Zealand there are presently no formal processes or rules for determining substantive quality standards for researching and assessing COI.3 To date little to nothing has been written on the subject.4 But as will be seen, this does not mean that quality standards are absent from COI in the New Zealand context. Nevertheless it is true that there has been no data collection or research of the kind recently carried out in the United Kingdom.5 The enhanced protection responsibilities now undertaken by New Zealand under CSR, CAT Article 3, ICCPR Articles 6 and 7 and general international human rights law in the context of humanitarian claims do not permit it to be assumed that what has worked in the past will suffice in the new regime.

[3] In the absence of qualitative research into how COI is presently used by the major actors in the New Zealand refugee and protection system (claimants, refugee and protection officers at first instance, members of the appellate tribunal and by members of the judiciary on review), the observations and comments which follow must necessarily be seen as a largely subjective introduction to the issue of COI and evidence assessment in the New Zealand refugee and protection system. That system is outlined under the next heading.

Statistics

[4] New Zealand is a small country with a population of approximately 4.5 million. The Tables at the end of this paper provide a very general overview of the number of refugee claims received in the period 1991 to 2010 by the formal two-tier RSD system. It will be seen that in the first year of its operation (1991) some 901 applications were received, rising to 1124 in the following year. This level was not seen again until 1996 (1064), 1997 (1534) and 1998 (1784) with a peak in 1999 (2019). Since then there has been a steady decline. In 2005 the number was 399 and in 2010, 384. The tables also show the recognition rate at both first instance before the Refugee Status Branch (RSB) of Immigration New Zealand and on appeal to the Refugee Status Appeals Authority (RSAA) (now disestablished and replaced by the Immigration and Protection Tribunal (IPT)).

THE REFUGEE AND PROTECTION DETERMINATION SYSTEM IN NEW ZEALAND - PAST AND PRESENT

A brief history

[5] New Zealand has been a party to the Refugee Convention since 1960 and to its Protocol since 1973.6 The initial RSD procedures, first detailed in inter-departmental circular letters of 6 September 1978 and 1 March 1981, were highly informal and severely criticised by the High Court in the Benipal case.7 In March 1991 the RSD procedures were reformed and given clearer structure by Terms of Reference which created a two-tier RSD process comprising a first instance hearing by an immigration officer with a right of appeal to an appellate tribunal called the Refugee Status Appeals Authority.8 These informal procedures were finally translated into statutory form by the Immigration Amendment Act 1999, s 40 which inserted a new Part 6A into the now repealed Immigration Act 1987.9 The new provisions came into force on 1 October 1999. This reform apart, for a period of some twenty years from 1991 to 29 November 2010 the New Zealand RSD system was characterised by its stability.

[6] However, as from 29 November 2010 the jurisdiction of the Refugee Status Appeals Authority to make final refugee determinations has been transferred to the now Immigration and Protection Tribunal with that tribunal having an enlarged mandate to determine also protection claims under both CAT, Article 3 and ICCPR, Articles 6 and 7.10 It is intended, wherever possible, to refer exclusively to the new legislation in the form of the Immigration Act 2009. But while reference is made to the new statutory provisions, of necessity it will be the jurisprudence and practice of the now disestablished RSAA which will be described. At the date of writing the new IPT had yet to hear and determine refugee and protection claims in any number.11

Domestic incorporation of CSR, CAT and ICCPR

[7] Following the pattern set by the earlier 1987 legislation, the Immigration Act 2009 does not incorporate into New Zealand domestic law all of the CSR, CAT or ICCPR. The legislation domesticates only the key provisions relevant to expulsion or return:

(a)	CSR	- -	the definition of “refugee” in CSR, Article 1.12 the non-refoulement obligation in CSR, Articles 32 and 33.13
(b)	CAT	- -	the definition of “torture” in CAT, Article 1.14 the non-refoulement obligation in CAT, Article 3.15
(c)	ICCPR	-	Articles 6 and 7. As neither Article expressly imposes an obligation of non-refoulement it is stipulated by the 2009 Act that a person must be recognised as a protected person in New Zealand under the ICCPR if there are substantial grounds for believing that he or she will be in danger of being subjected to arbitrary deprivation of life or to cruel, inhuman or degrading treatment or punishment (CIDT) if deported from New Zealand.16

A two-tier determination system

[8] A two-tier process operates comprising a first instance hearing by a refugee and protection officer of the Refugee Status Branch, Department of Labour with a right of appeal to an appellate tribunal which, as mentioned, is now called the Immigration and Protection Tribunal (previously the Refugee Status Appeals Authority).

[9] At first instance the refugee or protection claimant (who is entitled to the assistance of a lawyer on legal aid) is required to submit a claim form together with all supporting evidence including a detailed written statement and relevant COI.17 This is followed by an interview by a refugee and protection officer. After the interview the officer prepares an “interview report” setting out the officer’s understanding of the evidence given at the interview and the claimant is afforded an opportunity to correct any misunderstandings, errors or omissions which may have occurred. Any COI not sourced from the claimant is also disclosed at this stage. Further evidence, including COI, can then be submitted by the claimant in response. Thereafter the officer prepares a detailed written decision setting out the reasons either for recognising or not recognising the individual as a refugee or protected person. In the event of a negative decision, the claimant has a right of appeal to the Immigration and Protection Tribunal.

[10] On appeal to the IPT all questions of fact and law are at large and the appeal proceeds as a hearing de novo. The IPT is under an obligation to come to its own independent conclusion on all issues of fact and law, including credibility and country information. To this end the claimant is interviewed personally by the IPT with the claimant once more being entitled to the assistance of a legally aided lawyer. The claimant is expected to submit any relevant evidence, including COI and the IPT itself is free to introduce its own evidence and COI, provided that that evidence and COI is made available to the claimant for comment and challenge.18

Responsibility to establish claim

[11] Both at first instance and on appeal a person seeking recognition as a refugee or as a protected person is responsible for establishing his or her claim for recognition and must ensure that all information, evidence and submissions that he or she wishes to have considered in support of the claim are provided to the refugee and protection officer or the IPT as the case may be.19 Both at first instance and on appeal the decision-maker may seek information from any source, but is not obliged to seek any information, evidence or submissions further to that provided by the claimant. Indeed the application can be determined on the basis only of the information, evidence and submissions provided by the claimant.20

[12] The rule that a claimant is responsible for establishing the claim, is not to be applied mechanically.21 While the burden of proof in principle rests on the claimant, the duty to ascertain and evaluate all the relevant facts is shared between the claimant and the decision-maker.22 It has long been an established feature of the New Zealand refugee status determination process that the non-adversarial nature of the proceedings means that the inquiry is shared between the claimant and the decision-maker.23

[13] It is an equally long established principle that the requirement of evidence should not be too strictly applied in view of the difficulty of proof inherent in the special situation in which a person seeking recognition as a refugee or as a protected person finds him or herself. In this regard the RSAA frequently applied the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at para [196]:24

It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

An individualised assessment and the limitations to COI

[14] It is axiomatic that CSR, Article 1 along with CAT, Article 3 and ICCPR, Articles 6 and 7 require that the individual claiming recognition as a refugee or as a protected person must establish an individualised risk of being persecuted, tortured, arbitrarily deprived of life or subjected to cruel, inhuman or degrading treatment or punishment. The focus is on the specific circumstances of the individual, those circumstances necessarily being unique. This imposes an inherent limitation on the extent to which COI can assist the decision-maker in making an assessment of the risk faced by the claimant. It is rare (though not entirely unknown) for COI to address the circumstances of a particular individual. It is even more rare for COI to meaningfully predict the specific risk of harm to an individual in another country at some future point in time.

[15] While the assessment of risk is from beginning to end an objective one it is fallacious to assume that the risk must be established by evidence external to the refugee or protection claimant. The assessment may be based largely, or even primarily, on the claimant’s own credible testimony.25

An inquisitorial process

[16] >From its inception, the refugee and protection process in New Zealand has proceeded on inquisitorial lines, both at first instance and on appeal.26 The quintessentially inquisitorial nature of refugee and protection decision-making was explicitly recognised and approved by the New Zealand Supreme Court in 2010.27 It is now expressly provided by the 2009 statute that the Immigration and Protection Tribunal may conduct proceedings in an inquisitorial or an adversarial manner or adopt a procedure which is both inquisitorial and adversarial in nature.28

[17] Hearings on refugee and protection claims have never been open to the public. In addition, the New Zealand government is not usually represented at appeal hearings. Only the claimant, his or her lawyer an independent interpreter and the tribunal member(s) are ordinarily present.29

[18] When considering an appeal the IPT may seek information from any source and may in fact require the chief executive of the Department of Labour to seek and provide information relevant to an appeal.30 However, the IPT is under a statutory duty to disclose to the claimant any information or material that is provided to the Tribunal by a source other than the claimant and which is or may be prejudicial to him or her.31 The claimant must have opportunity to rebut that information or to comment on it.

High emphasis on credibility of claimant

[19] While the New Zealand appellate tribunal has power to seek information, this discretion is an inherently circumscribed one.32 First, there is the potential for breaching the confidentiality obligation owed to the claimant in the course of an enquiry.33 Second, there is the potential that the making of an enquiry can render the claimant a refugee or protected person sur place. That is, the enquiry may place at risk a claimant who would otherwise have no proper claim to refugee or protection status. Third, the making of enquiries inevitably leads to delay. This is inherently undesirable in the refugee and protection context. Fourth, there are practical difficulties inherent in the enquiry process such as identifying and accessing the holder of the information, language difficulties, the reluctance of individuals to provide information to officials and the inevitable limitations which impose themselves when making an enquiry at a distance. For example, responses are often one dimensional and on their own cannot be properly understood by the tribunal with the result that the further questions which should be asked are not because the agent on the ground is seldom aware of what is of real interest to the tribunal. Fifth, the outcome of the enquiry may be problematical if the fruits of the investigation are enigmatic or ambiguous. Sixth, the veracity of information, documents and their content is often incapable of effective verification. Seventh, the making of enquiry inevitably involves expense and the New Zealand tribunals have never been funded at a level which permits investigations of a meaningful nature. Finally, there is also the difficulty that COI will seldom address the specific circumstances of the individual claimant. In the majority of cases COI is of a much more general kind.

[20] Largely because of these considerations the general approach of the RSAA to refugee claims was to focus primarily on the credibility of the refugee claimant as assessed against publicly accessible information.34 This approach was approved by the New Zealand Supreme Court.35

[21] Credibility cannot, however, be pursued as an end in itself. The decision-maker cannot allow the pursuit of credibility issues to divert him or her from those considerations which are primarily relevant to the claim to refugee or protection status.36 Even if the decision-maker concludes that nothing which the claimant has said is true other evidence may establish that the person is a refugee or protected person. So if, for example, the evidence of a young male Tamil claimant is entirely rejected evidence external to the claimant may nevertheless establish that simply being a young male Tamil may be sufficient to put the person at risk of being persecuted, tortured or subjected to cruel, inhuman, degrading treatment or punishment. In these circumstances it must inevitably follow that the person is a refugee or protected person even though nothing of the person’s account is accepted as true.37 As pointed out by James C Hathaway, the objective focus of the refugee definition [and, one could add, of the relevant articles in CAT and the ICCPR] requires that even clear evidence of a lack of candour does not necessarily negate a claimant’s need for protection.38 Furthermore, the fact that a claimant has lied when giving evidence does not of itself mean that the whole of his or her evidence is untruthful.39 The decision-maker is required to ask whether a person, having all of the characteristics of the claimant, is at risk of being persecuted, tortured or subjected to CIDT on return.40 By way of illustration of the force of these points it can be noted that among the leading cases of the RSAA are two in which the refugees persisted in advancing untrue accounts. When those accounts were abandoned and the true facts disclosed, refugee recognition followed notwithstanding the admitted lies.41

Only publicly available information

[22] >From the time the current two-tier decision-making process was put in place in 1991, recognition has been given to the fundamental principle that all COI to be taken into account by the decision-maker must be disclosed to the claimant and an opportunity given to rebut, answer or comment. This fundamental rule of fairness means, in effect, that only publicly available COI can be used in the refugee and protection context. It also means that adequate opportunity must be given for COI and other disclosed material to be both read and considered.42

[23] It has also been a requirement that COI be interpreted reasonably. In one notable case the High Court held that the RSAA had taken an unreasonable view of the COI on Iraq contained in Amnesty International reports. In addition, it was held, the RSAA reading of those reports was inconsistent with other material the RSAA had before it. Further, the inferences drawn from the reports were unreasonable. The RSAA’s interpretation of the two reports had the effect of minimising the significance of and the risk to religious leaders in Iraq. This difficulty was compounded by the RSAA’s failure to address itself to the position of Shi’a religious leaders, since that was who the claimant was, rather than Shi’a clerics only. The RSAA’s interpretation of the Amnesty International reports significantly coloured its finding that there was no risk to the claimant at the level of a real chance.43

Classified information

[24] The Immigration Act 2009 has a codified regime for the receipt of classified information in refugee and protection claims. While there is a complex and not entirely informative definition of “classified information” (too lengthy to repeat here), such information can generally be said to relate to matters of security or criminal conduct.44 It is expressly provided that classified information relating to security or criminal conduct may be relied on in decision-making but the relevant agency which provides the classified information must ensure that such information is balanced.45 That is, the provider agency must ensure that:

(a)    The information is provided in a manner that does not, by reason of the omission of any other relevant classified or non-classified information, give a misleading view of the information supplied; and

(b)    Any classified or non-classified information that is favourable to the person subject to the decision or proceedings is also provided; and

(c)    Any further classified information that becomes available and that is relevant to the decision or proceedings is provided.

[25] Another notable safeguard is that while the classified information itself may be withheld from the individual affected, there is a clear and unambiguous duty on the decision-maker to provide a summary of the allegations arising from the classified information and to provide that summary to the person who is the subject of the proposed decision for comment.46 The classified information may be relied upon only to the extent that the allegations arising from the information can be summarised.47 So if the information cannot be assembled in a balanced way and a summary also disclosed to the claimant, it cannot be used by the decision-maker.48

Confidentiality maintained

[26] As a general principle a claim to be recognised as a refugee or protected person in New Zealand and the information provided in support of that claim is required by the Immigration Act 2009 to be kept confidential. Specifically, confidentiality as to the fact that a person is a claimant, a refugee or a protected person, and as to the particulars relating to the person’s claim or status, must at all times during and subsequent to the determination of the claim be maintained by all persons and, in a particular case, may require confidentiality to be maintained as to the very fact or existence of a claim or case, if disclosure of its fact or existence would tend to identify the person concerned or be likely to endanger the safety of any person.49 Breach of this obligation is a criminal offence.50 The only exceptions permitted to the confidentiality obligation are those listed in the Immigration Act 2009.51 These exceptions recognise that the Act does not cloak refugee claims with absolute confidentiality whatever the circumstances. Rather it strikes a balance between competing interests and recognises that in certain circumstances the state must, within highly circumscribed limits, be permitted to disclose details of the refugee or protection claim to other government agencies of New Zealand.

Challenging a decision of the IPT

[27] A claimant not recognised by the IPT as a refugee or protected person may appeal to the High Court on a question of law but leave of that court must be obtained.52 Judicial review proceedings on conventional common law administrative law grounds can also be commenced.53 The High Court must endeavour to hear such proceedings and any appeal together.54 Judicial review is not a general appeal. In very broad terms, judicial review is confined to questions of law, errors in procedure and a failure to observe the rules of fairness. Judicial review is concerned not with the decision, but with the decision-making process.55

[28] It follows that the IPT is the component of the New Zealand RSD process which is intended to be the most effective venue for challenging factual decisions made at first instance. Only the IPT possesses jurisdiction to conduct a de novo investigation of the facts and to receive any evidence relevant to the refugee or protection claim irrespective whether that evidence was submitted at the first instance hearing before a refugee and protection officer.

ACCESSING COI - THE RRIB56

[29] In the period 1991 to 1996 (approx), in a largely pre-internet environment, country information was accessed by tribunal members in an informal and haphazard manner. The RSAA “library” consisted of materials gathered by its members from their own researches together with other COI submitted in evidence by refugee claimants. The “collection” was held in a disorganised series of filing boxes.

[30] The New Zealand Refugee Status Library was established in 1996 to serve the information needs of the Refugee Status Branch of Immigration New Zealand and of the RSAA.57 The main role of the research librarians was to provide background country and human rights information to assist the assessment of claims to refugee recognition. They also provided specific information in response to requests from decision-makers in the RSD process. The library’s collections have always been accessible to outside users, including refugee and protection claimants and those assisting them, particularly lawyers.

[31] Begun as a sole charge operation in 1996 and always based in Auckland, the library grew to four staff by 2001 and now has 8.5 FTE (full time equivalents) including a three-person team in Wellington. The library is presently a separate branch within Immigration New Zealand, Department of Labour and is currently known as the Refugee Research & Information Branch (RRIB) with first instance decision-makers of the Refugee Status Branch and the IPT as its major stakeholders. In 2005 its mandate was extended with a team of three research librarians in Wellington set up to serve the research and information needs of the Immigration Profiling Group in Border Security. Following the Department of Labour Corporate Model Implementation Project, the RRIB reporting line was moved to the Information Management Division of the Business Services Group in the Department of Labour. The work the RRIB carries out and the relationships with core stakeholders are unchanged, although the provision of COI for residence appeal and deportation matters is increasing following the establishment of the IPT in 2010. An additional Research Librarian has been employed to meet this demand.

[32] All research staff are experienced, professional librarians with post-graduate qualifications. They are also required to adhere to the LIANZA (Library & Information Association of Aotearoa NZ) Code of Professional Conduct.

Advantages of a specialised research unit

[33] The advantages of a specialised research unit are possibly self-evident but include:

(a)    Research is carried out by qualified information specialists, trained in search methodology. They are able not only to source and supply both general country and human rights information and the answers to highly specific questions about events, groups, people and places, but also to ensure such information is stored in fully searchable databases.

(b)    Consistent information can be supplied to all clients in the core user groups.

(c)    Researchers, as part of their work, continually seek new reliable sources and are trained to evaluate the credibility, credentials and impartiality of the source, allowing decision-makers more time to devote to their own specialised field(s).

(d)    Duplication of effort is reduced and cost savings result.

(e)    The same information can be made available to refugee and protection claimants and their counsel as to the decision-makers.

[34] The librarians rely heavily on electronic sources of information and make extensive use of online reports by the major human rights monitoring bodies, international government and non-government organisations and credible news and political reportage. Examples of sources used include: UNHCR Refworld, Amnesty International, Human Rights Watch, International Crisis Group, European Country of Origin Information Network, U.S. Library of Congress, International War & Peace Reporting, Minority Rights Group International, Jane’s Intelligence and numerous national and thematic sites and databases. A new secure Internet bookmarking system has been set up on ‘Delicious’ for researchers to share useful sites. There were 629 bookmarks added in the first few months. In addition a subscription to Nexis online news allows fully searchable access to a large range of up-to-date and archived international news sources. The library collection includes print copies of reference tools on political parties, languages, ethnic groups, religions, defence and security systems, refugee law and country guidebooks. A small selection of current affairs and refugee journals is also held. The library catalogue and index provides access to 22,860 reference items found during the research process. All research requests and responses are uploaded into a separate searchable in-house database for future reference.

Language barriers

[35] As to language barriers, most general country and human rights information is available in English from credible international sources. Information about specific people or places is occasionally only available in the language of the country concerned. The RRIB has staff with fluency in French, German and Italian and with some knowledge of several other languages. One researcher is also a qualified translator. Immigration New Zealand also has staff from diverse language backgrounds and researchers may draw on this resource where necessary. In some instances the information may be referred to departmentally accredited translation providers to ensure the integrity of the translation provided to decision-makers.

Cooperation between COI researchers and decision-makers

[36] The RRIB enjoys a sound professional and collegial relationship with each of its core stakeholder groups. This in no way impinges on the impartiality of any of the actors. A memorandum of understanding between the Department of Labour and Ministry of Justice will formalise the relationship of the new IPT (administered by the Ministry) with the RRIB and the RSB and specify the services and information the two branches are to supply to the IPT.

[37] Senior members of the RSAA regularly provided training on refugee jurisprudence to both RSB and RRIB staff. In addition researchers often attend joint training sessions with refugee and protection officers on topics such as refugee status determination procedures and refugee and protection law. New immigration and protection officers have training sessions on RRIB services and “how to write research requests”. Similar sessions are offered to IPT members. The RRIB also offers country information and thematic presentations to both the RSB and the IPT.

[38] The librarians are very aware that people’s lives are affected by the information they provide and are scrupulous about seeking out the best quality and most current information. They are equally scrupulous about impartiality and careful to establish the credentials of a source. They do not evaluate the evidence but pass it in “raw” form (with appropriate disclaimers if necessary) to the decision-maker whose task it is to decide what impact the information is to have on the case in hand.

[39] New Zealand is a member of the Inter-Governmental Consultations on Migration, Asylum and Refugees. The RRIB regularly participates in the COI section of the IGC website, where they are able to seek and provide information from/to member States that they have not been able to source elsewhere. Where possible the RRIB endeavours to participate in at least one of the COI Working Groups usually held in Geneva each year. This provides not only an updating on international developments in the field, but enables the bench marking of performance against international counterparts.58

[40] COI in New Zealand has not yet come under the same scrutiny as is now occurring within the EU context.59

APPROACH TO COI - TRIBUNAL LEVEL

Disclosure

[41] As mentioned earlier, the consistent and unwavering approach taken by the RSAA was that any COI uncovered by the tribunal’s own researches or received from the RRIB was required to be disclosed to the claimant if that information could potentially be used by the tribunal in deciding the case.60

Consistent interpretation of COI

[42] To promote the consistent interpretation and application of COI the RSAA would from time to time hold seminars for members for the purpose of reviewing human rights developments in a particular country with a focus on the evaluation of recent reports relevant to a specific category of cases then being heard by the RSAA. This approach was facilitated by the relatively small number of members of the RSAA and that number declined in more recent years in parallel with the decline in the number of refugee claims received. For example, in 1999 there were fifteen part time members. In 2000 there were two full time and nineteen part time members. By 2005 there were six full time and twenty-three part time members. However in 2007 the numbers began to fall, there being six full time and fourteen part time members and by 2010 there were four full time and seven part time members.

[43] Weekly informal meetings of members also provided a venue for discussion of the sometimes fluid human rights situation in key source countries and the significance of those developments to a particular case or class of cases. But cases were always determined on the basis of the evidence heard and disclosed within the context of the particular case.

[44] A peer review system also ensured that before any decision was published the draft was vetted by a senior member of the tribunal not with a view to influencing the outcome of the case (independence of decision-makers was at all times respected) but to draw attention to obvious errors and potentially inconsistent interpretation and application of relevant COI.

[45] While the RSAA most often sat as a single member panel, it would appoint a panel of two, three and on occasion five members where:

a “new” country of origin was encountered in respect of which the RSAA had little or no experience; or
following major changes in the human rights situation in a country with which the RSAA had long experience, it was necessary to hear and evaluate the new COI.

This allowed for a more meaningful and objective assessment of COI, the panel having opportunity to debate the different perspectives and interpretations available on the evidence. By allowing more than one perspective to be brought to the interpretation of the COI, a hopefully more nuanced understanding of the COI was achieved.

COUNTRY GUIDANCE CASES

[46] The RSAA never adopted a formal system whereby a single panel purported to arrive at a definitive interpretation or assessment of COI, whether related to credibility, the risk of harm (or categories of persons at risk of harm) and the Convention ground(s) (if any) relevant to the risk of harm. Nor has the New Zealand legislation ever permitted such an approach.61

[47] This does not mean that detailed assessments of country conditions cannot be found in RSAA jurisprudence and there are indeed decisions, particularly in the period 1992 to 1999, which do have the appearance of what is now referred to in the United Kingdom as country guidance cases. Those cases related to:

Republic of India - Punjab.
China - One-child policy.
Indonesia - Ethnic Chinese.

[48] The Punjab. One of the first major jurisprudential and COI issues facing the RSAA was whether claimants at risk of being persecuted by militants in the Punjab could be denied recognition as refugees on the basis that they could access meaningful state protection outside the Punjab but within the Republic of India. If the legal answer to that question was “yes”, the next question, turning on COI, related to the circumstances and conditions in which this alternative form of protection could indeed be accessed. As to the jurisprudential issue, the RSAA held that provided a number of strict pre-conditions are met, refugee status recognition can be withheld where an internal protection alternative can be demonstrated.62 As to COI, the decision in Refugee Appeal No. 18/92 Re JS (5 August 1992) attempted a summary of the determinations made by the RSAA in its first twelve months of operation. In particular it identified the factors which had been taken into account in assessing the internal protection alternative in the context of non-state agents of persecution. It expressed the hope that the summary would make it possible for an intending claimant to make a realistic assessment of the likely outcome of an appeal. The Authority did, however, caution that the COI assessment made at that time was, at best, provisional:

We emphasise that the foregoing represents a general summary only of the jurisprudence to date. If conditions in India or the Punjab change, or new evidence bearing on the issues comes to hand, we will, of course, always be prepared to re-evaluate the situation. Furthermore, no case is ever identical on its facts. We recognize that as conditions in a country of origin change, so too must the assessment of the particular case on appeal. [emphasis in original]

This caution notwithstanding, the High Court subsequently drew attention to the danger of country guidance cases reversing the onus of proof:63

... the decision in Refugee Appeal No. 18/92 Re JS is so emphatic on the issue of relocation that an onus is effectively placed upon subsequent appellants to bring fresh evidence or fail on that point.

[49] Two and a half years later, in Refugee Appeal No. 523/92 Re RS (17 March 1995) a four member panel of senior members of the RSAA, after an extended review of COI, concluded that most of the militant groups in the Punjab had been crushed by mid-1993. That assessment led, in turn, to the conclusion that individuals claiming a risk of harm at the hand of militants could either not establish a well-founded fear of being persecuted or could mostly find an internal protection alternative either within the Punjab or elsewhere in India.

[50] As to China and the one-child family cases, the RSAA in its early years heard a number of refugee claims by Chinese nationals whose risk of harm on return to China was said to arise from opposition to the one-child family policy. That policy was the subject of extensive investigation and review in Refugee Appeal No. 3/91 Re ZWD (20 October 1992). Rather than attempting to identify the categories of individuals at risk of harm and the circumstances in which that risk would eventuate, the decision largely confines itself to documenting the origin and working of the one-child policy and whether the means chosen for its implementation were in violation of international human rights law.

[51] As to the Indonesian Chinese cases. The decision in Refugee Appeal No. 71404/99 (29 October 1999) arose out of the significant number of refugee claims by Indonesian nationals of Chinese ethnicity following the outbreak of serious anti-Chinese violence in May 1998. The decision examined the history of anti-Chinese violence in Indonesia and the causes of the May 1998 riots. Drawing on that background, it made an assessment of the future risk of harm faced generally by Chinese in Indonesia. The decision also addresses whether an atmosphere of insecurity can be described as “being persecuted” in terms of the CSR and finally, it also addresses the internal protection alternative in the context of an archipelago nation.

[52] No doubt other examples can be found. The foregoing list is simply illustrative.

[53] But the general approach in New Zealand has been to avoid decisions of this kind as the prevailing and dominant view has been that few refugee or protection cases are ever identical on their facts and that country conditions are far too complex and subtle to permit a single interpretation in which inevitable variations and nuances are artificially collapsed into a single conclusion or finding. See for example the following statement taken from Refugee Appeal No. 2507/95 Re JEAH (22 April 1996) in which the Peruvian claimant asserted a risk of being persecuted by the Sendero Luminoso. His claim ultimately failed on the grounds (inter alia) that no imputed political opinion could be established as flowing from the claimant’s refusal to comply with a demand that he pay a “tax” to the Sendero Luminoso. The claimant had relied on several decisions of the RSAA in which, on their particular facts, an imputed political opinion had been established by other claimants in not dissimilar circumstances. In relation to these other cases the RSAA remarked:

It must be understood that every refugee case is unique. Much turns on the issue of credibility. Furthermore, because the focus of the inquiry is not so much on what has happened in the past as on what might occur in the future, each case has its own subtle nuances which are determined very much by the inter-relationship between credibility, the facts of the case, what is understood of the country conditions in the country of origin and, finally, by the forward looking assessment of the risk faced by the specific claimant. In entering into this difficult field of inquiry (ie, as to whether a particular set of facts establishes a well-founded fear of [being persecuted], different panels of the Authority will be influenced by a range of factors, not all of them necessarily duplicated in superficially similar cases involving the same country of origin.

...

We therefore stress that the task of any decision-maker is to assess whether, on the particular facts found to have been established, it could be said that the appellant has established to the requisite degree that the persecution feared by him or her is for reason of the appellant’s political opinion.

[54] Similar comments are to be found in the High Court of Australia where in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs McHugh and Kirby JJ said:64

It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a “well-founded fear of being persecuted for reasons of ... membership of a particular social group”. [emphasis in original]

[55] In the same case Gummow and Hayne JJ criticised attempts to classify large numbers of cases:

[75] Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.

[76] Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.

[77] Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant's claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country. It would, for example, be wrong to argue from a premise like "homosexuality is generally ignored in Bangladesh" to a conclusion that "this applicant (a homosexual) will not be persecuted on account of his sexuality", without paying close attention to the effect of the qualification of the premise provided by the word "generally". Thus it would be necessary in the example given to consider whether, on return to Bangladesh, the applicant would stand apart from other homosexuals in that country for any reason.

[56] In the specific UK context it has been observed that:65

Country guidance cases were found to be helpful for providing context; limiting the scope of argument; narrowing down issues; defining risk categories; assessing the merits of a case; settling contradictory COI; and providing a wealth of expert and COI evidence. However, their limitations were also noted: they go out of date; country situations are dynamic; ultimately they are case specific with general conclusions drawn out; the Home Office can concede at any given moment; the categories defined are often very narrow; there are divergent outcomes owing to the variance in the judiciary; and countries and issues tend to be selected almost randomly and in a non-transparent manner.

[57] The subjective and highly contestable nature of COI assessment is perhaps illustrated by the controversial decision of the UK Asylum and Immigration Tribunal in HGMO (Relocation to Khartoum) Sudan CG [2006] UK IAT 00062 in which it handed down a country guidance decision on what has been described as “the highly controversial question whether it was unduly harsh to expect anyone, and if so whom, to relocate from an area of Sudan to which they could not return to the displaced persons’ camps around Khartoum where conditions were, on any view, deplorable”.66 The determination was that with discernable exceptions, it was not unduly harsh. When the HGMO (Relocation to Khartoum) decision was examined in the House of Lords, Baroness Hale expressed concern at its approach:67

28. Yet the Tribunal concluded that because the conditions faced by returning Darfuris, however appalling, would be no worse than those faced by other Sudanese IDPs it would not be not “unduly harsh” to expect them to return. The standard of comparison was, not with their lives in Darfur before their persecution, not with the general run of ordinary lives in Sudan, not even with the lives of poor people in Sudan, but with the lives of the poorest of the poor, internally displaced victims of the civil war in the south, living in camps or squatter slums, and “subject from time to time to relocations, sometimes involving force and human rights violations” (para 244). They too had been subsistence farmers, ill-equipped to survive in the city slums (para 239); they too had suffered the psychological horrors of civil war (para 238), if not of government-backed genocide; the Darfuris would be no worse off, unless particular individuals attracted the adverse interest of the authorities (para 242). With respect, this is not the individualised, holistic assessment which the question requires.

[58] In the later but related KH (Sudan) Sedley LJ noted the submission that the AIT had made stereotypical assumptions about the impact of poverty and the traumas of war on Darfurians, that health conditions in the camps were appalling and that the decision flew in the face of expert evidence.68 He observed that it was a submission with which the Court of Appeal might, if it were a primary decision-maker, have had “considerable sympathy” but they were not grounds of appeal and therefore were not issues which could be addressed.69 Rather, the appeals were to be approached on the footing that internal relocation to a place of sufficient safety would be reasonable unless it was unduly harsh for the individual concerned. He then noted at [8] what is, in effect, the “reverse burden of proof” phenomenon implicit in country guidance cases:

... that immigration judges are expected to follow the country guidance contained in HGMO unless acceptable evidence is placed before them by either party which shows it to have been incorrect or to be no longer correct in some significant respects.

[59] In the result, while in the Court of Appeal and in the House of Lords real concern was expressed as to the “country guidance”, the restricted nature of appellate proceedings precluded effective intervention to correct doubtful findings of fact. Nevertheless it can be noted that in KH (Sudan) there were in fact five appellants. One of them, (QA (Sudan)) did succeed in the Court of Appeal as he was able to meet the reverse burden of proof. In the following passage Moses LJ, delivering the judgment of the Court, identified the error as being one in which the decision-maker had failed to concentrate on the specific circumstances of the individual refugee claimant:

36. The AIT in HGMO, as endorsed by the House of Lords, has concluded that conditions in a camp or squatter area are not such as to lead to the conclusion that it would be unduly harsh to expect a young male adult to live there. Such a proposition is general and in each case it is incumbent upon the fact finder to consider the impact of such conditions on the particular appellant who contends it would be unduly harsh to return there in the context of his or her particular circumstances. Those circumstances, in the instant appeal, are stark. The appellant has lost all his living relatives, killed by those responsible for conditions in those camps. Not only has he lost his siblings and his parents but also the one surviving relative who enabled him to escape from his village. Nowhere is there any reference within the determination of the AIT to the impact of those circumstances. On the contrary, they are dismissed in a cursory manner in the reference of the Tribunal to this appellant as being a “young apparently healthy adult”. No regard has been had to the vital consideration of the effect on this lone young man, even now only 20, who will, if the Tribunal’s decision stands, have to face the prospect of survival in a camp. Conditions in such camps were described by Dr Khalil as being a “desperate situation” within “appalling conditions of extreme poverty” (see § 43 of AH in the Court of Appeal). The impact of such conditions will be accompanied by the everyday knowledge that those responsible for such conditions are also responsible for the death of his every living relative.

37. In our judgement the failure to make any reference to the particular circumstances of this appellant was an error of law. Anyone reading of such circumstances might have little difficulty in concluding that it would be unduly harsh to require this appellant to return to a camp. But in HGMO the AIT made no reference to the impact on those who had seen their parents and relatives killed by the Janjaweed under the sponsorship of the Government of Sudan.

[60] Reference can also be made to the decision of the Court of Appeal in FB (Democratic Republic of Congo) v Secretary of State for the Home Department70 where the AIT, expressing reservations, had relied on a two year old country guidance case. The decision was reversed by the Court of Appeal, that court observing that country guidance cases are “not to be construed like statutes”; guidance cases cannot cover every possibility and the focus of the decision-maker must be on the risk involved if the claimant were to be returned to the country of origin.71 The Court emphasised that, as in every other asylum case, the evidence must be looked at as a whole. That being so, one might ask whether anything meaningful is achieved by the time and resources invested in country guidance cases.72 Particularly given that the CSR, CAT and ICCPR mandate an individuated inquiry into the particular and unique circumstances of the claimant.

Country guidance cases - some conclusions

[61] There must be a real question whether “country guidance” is a realistically achievable aim, premised as it is on the assumption that a person or panel of persons will capture (accurately) the rich texture of possibilities in a particular country and context, a country in which the decision-makers do not live and most often have not visited and when the assessment is based largely on what has been observed and written by others in a language in which the decision-makers are not fluent. The idea that someone can say, authoritatively, “what really happens” in a given country is a bridge too far for some. If a life has been lived entirely unobserved, if events, circumstances and conditions have either not been noticed or not written about, that life and those events remain invisible and are usually assumed not to exist. It is one thing to make findings in relation to the narrow circumstances of the individual refugee or protection claim where the evidence is focussed on one person. It is an entirely different matter to make generalisations about a country, its power structures, the possibilities of life within that country and the circumstances in which harm might befall individuals generally. Experience shows that the truth on the ground is inevitably more subtle, more nuanced, confused, complicated and contradictory. It is incapable of being “shoe-horned” into neat categories or sets of conclusions. The more so when specific conditions are not generally reported or are incapable of investigation.

[62] Then there is the point that country information is seldom neutral. It always requires interpretation. When a refugee decision-maker makes broad generalisations for a range of cases there is too much room for the intrusion of the subjectivities of that decision-maker (and indeed of the authors of the COI).73 There is also much room for error.74 In addition a gender-blind interpretation of country information has for too long been a barrier to the recognition of gender-based refugee and protection claims.75 So too in the case of claims based on sexual orientation. Both categories face a wall of silence.76 Little or nothing might be found in COI on persecution and discrimination based on gender, sexual orientation, disability and age. The challenge of “decoding” country information and identifying what is not there is insufficiently remarked upon.

[63] Beyond these points lies the unpleasant truth that country guidance cases can and do deflect the decision-maker from the proper inquiry. While it has been said that:77

... no country guidance case is for ever; it is a factual precedent ... and as such is open to revision in the light of new facts - new either in the sense of being newly ascertained or in the sense that they have arisen only since the decision was promulgated - provided in each case that they are facts of sufficient weight.

the question the downstream decision-maker is required to address changes significantly. It ceases to be the one posed by the treaties. It is not whether the refugee claimant has an individuated well-founded fear of being persecuted for a Convention reason or whether a specific protection claimant is at risk of torture, CIDT or being arbitrarily deprived of life. Rather the question becomes whether the claimant falls within a particular risk category identified in the country guidance case and if not, whether he or she can show “new facts” in the sense explained in KH (Sudan).78

[64] On one view, the deflection of the refugee or protection inquiry away from the individualised and particular circumstances of the specific claimant threatens the integrity of the refugee or protection enquiry. It could be said that attempting consistency through country guidance cases comes at too high a price.

[65] The RSAA generally avoided (with some exceptions) publishing “country guidance” cases. It does not follow that its procedures were for this reason wanting. A recent and extensive analysis of the UK country guidance system concluded that it cannot be implied “that country guidance is or should be a necessary feature of any asylum process”.79 As earlier explained, it was in this context that the RSAA deployed other measures designed to achieve consistent interpretation of COI such as seminars and training, informal meetings, a peer review system and convening multi-member panels. Nor does it follow that detailed assessments of COI were not made by the RSAA. To the contrary. This can be seen from the RSAA website which allows a search to be conducted, country by country, according to the level of country information.80 The options permitted are “any”, “high”, “medium” or “low”.

[66] A search of this website using the search terms “Refugee Status Appeals Authority” and “content high” produced the results set out in the table which follows.81

Financial Year	Number of decisions decided by the RSAA	Decisions with high COI Content	Countries
2010	186	7	Iran, China, DRC, South Africa, Fiji, Sri Lanka x 2
2009	142	11	Kenya, Sri Lanka x 3, Burma, Czech Republic, Turkey, Egypt, Iran, Afghanistan, Saudi Arabia
2008	200	13	Algeria, India x 2, China, Bangladesh, Nepal, Sri Lanka, Iran, Syria, Afghanistan, Turkey x 2, Burma
2007	226	15	Sudan, Nepal, Slovakia, China x 2, Pakistan, Iran, Sri Lanka x 2, Israel, DRC, Zimbabwe, Hungary, Somalia

[67] In 2010 the “high” level of country information cases were:

Refugee Appeal No. 76253 (31 March 2010) Iran.
Refugee Appeal No. 76434 (15 April 2010) China.
Refugee Appeal No. 76342 (23 April 2010) DRC.
Refugee Appeal No. 76398 (30 April 2010) South Africa.
Refugee Appeal No. 76512 (22 June 2010) Fiji.
Refugee Appeal No. 76502 (29 June 2010) Sri Lanka.
Refugee Appeal No. 76534 (4 August 2010) Sri Lanka.

A review of each of these cases will show that a wide range of sources of country information are routinely drawn on in New Zealand and there is no attempt to arrive at exhaustive conclusions or assessments of countries. The country information and fact findings are tailored to the specific circumstances of the particular refugee or protection claim.

Country guidance to be distinguished from precedent setting decisions on the law

[68] While the RSAA generally avoided publishing country guidance cases, it took the opposite approach in publishing decisions which established legal precedents. The view taken was that as a final and specialist appellate tribunal it had a responsibility, applying Article 31 of the Vienna Convention on the Law of Treaties, 1969, to ascertain the “true autonomous and international” meaning of the Refugee Convention spoken of by Lord Steyn in the House of Lords.82 The purpose of RSAA precedent decisions on refugee law was to give guidance and instruction to first instance decision-makers and to assist the High Court on judicial review should the relevant legal issue come before that court for determination. Some decisions have been cited favourably in the House of Lords and UK Supreme Court.83

THE LIMITATIONS OF COUNTRY INFORMATION - COI AND CREDIBILITY ASSESSMENT

[69] Country information is potentially relevant to (inter alia) the nature of the harm faced in the country of origin, the risk of that harm eventuating in the future, nexus and credibility. As to the last of these issues, credibility assessment is a substantive subject on its own. In a paper focussed on COI only a few observations can be made on the relationship between COI and credibility.

[70] The primary task of the decision-maker is fact-finding. The ultimate issue is not credibility, but of the risk of serious harm. That having been said, COI is nonetheless often properly deployed to test and assess the credibility of the claimant. In some case the question posed is whether the claimant’s account is consistent with COI - and therefore more likely to be credible or whether the account is inconsistent with COI - and therefore more likely to be not credible.84 While there are cases where COI can properly assist in determining the credibility of the claimant in this way, the deployment of COI in the credibility assessment exercise opens up the broader and more fundamental question of how credibility can be properly assessed. Further, if COI is to be used to assess the credibility of the claimant, is it not necessary to also assess the credibility of the COI itself? The proposition is that to interrogate the credibility of the claimant by deploying COI necessarily requires the interrogation of the credibility of that COI.

A few observations about credibility assessment

[71] Beyond these observations lie the fundamental challenges of credibility assessment itself.85 Without an appreciation of the nature of those challenges there is a danger of COI being deployed in an impermissible manner. Context is everything.

[72] All refugee and protection claims require a narrative of the claimant’s personal circumstances and although past harm is not a requirement of the CSR, CAT, Article 3 and ICCPR, Articles 6 and 7, it is common to find that past harm or past encounters with the agent of persecution are central to the claimant’s narrative. The credibility of this narrative is then subjected to close examination from different perspectives including coherency, internal consistency, plausibility and consistency of telling. Obviously there are also other factors which potentially affect the credibility assessment. But the last factor (consistency of telling) is particularly relevant to appellate tribunals which conduct the refugee or protection enquiry on a de novo basis. Changes or differences which occur in the narrative on appeal compared with the evidence given in the initial statement or at first instance (for example in relation to dates, places, details of events) will often count against the claimant. These assessments can be unforgiving and driven by false assumptions as to how events are remembered and then recalled. Time and space permit only two analyses to be referred to. The first is by Daniel L Schacter who observes:86

... we tend to think of memories as snapshots from family albums that, if stored properly, could be retrieved in precisely the same condition in which they were put away. But we now know that we do not record our experiences the way a camera records them. Our memories work differently. We extract key elements from our experiences and store them. We then recreate or reconstruct our experiences rather than retrieve copies of them. Sometimes, in the process of reconstructing we add on feelings, beliefs, or even knowledge we obtained after the experience. In other words, we bias our memories of the past by attributing to them emotions or knowledge we acquired after the event.

[73] The second primary source drawn on for this paper is a recent journal article which addresses the subject of memory in the context of refugee and protection claims. It is impossible in a few lines to do justice to this exemplary piece by Hilary Evans Cameron. It is therefore intended to reproduce only the Abstract:87

Refugee status decision makers typically have unreasonable expectations of what and how people remember. Many assume that our minds record all aspects of the events that we experience, and that these memories are stored in our brains and remain unchanged over time. Decades of psychological research has demonstrated, however, that our memories are neither so complete nor so stable, even setting aside the effects on memory of trauma and stress. Whole categories of information are difficult to recall accurately, if at all: temporal information, such as dates, frequency, duration and sequence; the appearance of common objects; discrete instances of repeated events; peripheral information; proper names; and the verbatim wording of verbal exchanges. In addition, our autobiographical memories change over time, and may change significantly. As a result, while gaps or inconsistencies in a claimant’s testimony may in some cases properly lead to a negative credibility finding, such aspects are often misleading and should never be used mechanically, and the bar must be set much lower. Many decision makers must fundamentally readjust their thinking about claimants’ memories if they are to avoid making findings that are as unsound as they are unjust.

[74] It is clear that a decision-maker cannot engage in the simplistic exercise of comparing the claimant’s account with whatever COI the decision-maker happens to have available and then proceeding to a determination of “the truth” by treating the COI as the touchstone. Credibility assessment cannot be reduced to such a formulaic exercise. Nor can credibility assessment be assumed to be an exercise undertaken with scientific precision. Decision-makers need to be aware that “[A] possible life-and-death decision extracted from shreds of evidence and subjective impressions ... has to be made”.88

A few observations about assessing the credibility of COI

[75] Country information is inherently contestable. Some of the reasons are set out earlier in the context of the discussion of country guidance cases. Additional forceful and compelling reasons are identified by Natasha Tsangarides in her recent study.89

[76] The key problem is that people take as facts not what is, but what they perceive to be facts:90

For the real environment is altogether too big, too complex, and too fleeting for direct acquaintance. We are not equipped to deal with so much subtlety, so much variety, so many permutations and combinations. And although we have to act in that environment, we have to reconstruct it on a simpler model before we can manage with it. To traverse the world men must have maps of the world. Their persistent difficulty is to secure maps on which their own need, or someone else’s need, has not sketched in the coast of Bohemia.

[77] There is no denying the seductive nature of COI. It can lead the decision-maker to believe that he or she “knows” about the claimant’s country of origin, knows “the truth” of what happens in that country (and what does not happen). There is a danger that the decision-maker will reconstruct the claimant’s world on a simpler model in order to manage it.91 To traverse the claimant’s world the decision-maker must have a map of that world. The persistent difficulty is “to secure maps on which [the decision-maker’s] own need, or someone else’s need, has not sketched in the coast of Bohemia”.

CONCLUSION

[78] The New Zealand refugee and protection determination system illustrates a familiar pattern of progression from the disorganised and haphazard collection and deployment of COI to the research, assembly and presentation of COI by professional librarians qualified as information specialists and trained in search methodology. While the RRIB works very much in the background, the assistance provided by its librarians to decision-makers as well as to refugee and protection claimants underpins the entire determination process and is a necessary component of the credibility of that process. The essential role played by research librarians is insufficiently acknowledged.

[79] A two-tier inquisitorial system in which the appellate tribunal conducts a de novo hearing with all questions of fact (including COI) and law being at large properly recognises the importance of ensuring that the refugee or protection claimant has full opportunity to present his or her case at both levels and to ensure that the decision is based on accurate and current COI. But focussed as it is on the special circumstances of the particular claimant, the refugee or protection enquiry functions best when it avoids overreach. That is the making of findings beyond those required by the context of the particular case and intended to provide guidance to decision-makers in later but similar cases.

[80] There are inherent dangers in deploying COI in credibility assessment. This does not mean to say that such deployment should not occur. But there must be recognition that the decision-maker may have false expectations as to how and what people remember and how those memories are retrieved and narrated. Where there are such false expectations the deployment of COI will not be of meaningful assistance to the decision-maker. Additionally, there must be recognition that COI is inherently contestable. The overarching danger is that the decision-maker will reconstruct the claimant’s world on a simpler model in order to manage it.

TABLES

Table 1: The number of refugee status applications submitted to the Refugee Status Branch in the financial years from 1990/91 to 2009/2010.

Financial Year	Applications received by RSB
1990/91	901
1991/92	1124
1992/93	541
1993/94	382
1994/95	641
1995/96	1064
1996/97	1534
1997/98	1784
1998/99	2019
1999/2000	1409
2000/01	1703
2001/02	1441
2002/03	955
2003/04	713
2004/05	399
2005/06	317
2006/07	244
2007/08	267
2008/09	246
2009/10	384

Table 2: Approval/decline rates 2006 - 2010 - First Instance

Financial Year (RSB)	Number of Claims	Percentage Recognised	Percentage Declined
2010	382	27.2%	72.8%
2009	246	29.8%	70.2%
2008	267	29.2%	70.8%
2007	244	23.7%	76.3%
2006	317	20%*	80%*

* figures from RefNZ website

Table 3: Approval/decline rates 2006 - 2010 - Appeal

Financial Year	Claims Received	Number of Decisions	Percentage Recognised	Percentage Declined
2010	178	186	31%	69%
2009	121	142	40%	60%
2008	177	200	26.1%	73.9%
2007	171	226	27.9%	72.1%
2006	245	395	21.1%	78.9%

NOTE: These statistics have been taken from:

•    Immigration New Zealand Refugee Analysis Monthly Report - June 2010
•    Annual reports of the Refugee Status Appeals Authority submitted to the Minister of Immigration. These annual reports can be accessed at <www.nzrefugeeappeals.govt.nz> <www.nzrefugeeappeals.govt.nz> and at <www.refugee.org.nz>.
•    The Statistics page of the New Zealand Refugee Law website <www.refugee.org.nz>.

Endnotes

1. The author of this paper was one of three original appointees to the Refugee Status Appeals Authority when it was first constituted in 1991 and remained a member until the Authority was disestablished from 29 November 2010. In the period 1994 to 2010 he was Deputy Chair and author of many of the Authority’s principal decisions. Since 1993 he has held the position of Adjunct Lecturer in Law at the Faculty of Law, University of Auckland where he teaches Immigration and Refugee Law. He is currently in full time practice in Auckland as a barrister.

2. See the Immigration Act 2009, Parts 5 and 7. All New Zealand legislation is accessible online at <www.legislation.govt.nz>. Nearly all of the provisions of the Act came into force at 2am on 29 November 2010. See the Immigration Act 2009 Commencement Order 2010 (SR2010/185).

3. Compare and contrast developments primarily within the European Union: ACCORD Researching Country of Origin Information: A Training Manual (2004 - updated April 2006) <www.coi-training.net>; Common EU Guidelines for processing Country of Origin Information (COI) (April 2008) <www.unhcr.org/refworld>; Gábor Gyulai Country Information in Asylum Procedures - Quality as a Legal Requirement in the EU (2007, Hungarian Helsinki Committee); IARLJ Judicial Criteria for Assessing Country of Origin Information (COI): A Checklist (November 2006) <www.iarlj.org/conferences/mexico>; UNHCR Country of Origin Information: Towards Enhanced Cooperation (2004) <www.unhcr.org/refworld>.

4. But see Jeanne Donald “Access to Information for Immigration and Refugee Law Practitioners” (2002) Auckland District Law Society Seminar <www.refugee.org.nz/Reference> where it is recorded at [1.5] that at the time of writing the Refugee Status Branch (the first instance decision-maker) “refuses to provide practitioners with a copy of country information relied on and cited in their interview reports ... because the information is ‘publicly available’ (refer section 18 of the Official Information Act)”. Ms Donald observes that this can lead to difficulty in certain circumstances, particularly when a practitioner is acting for detained claimants and must respond to interview reports within a short timeframe and where citations refer to an internet site that no longer exists.

5. See particularly Natasha Tsangarides The Refugee Roulette: The Role of Country Information in Refugee Status Determination (2010, Immigration Advisory Service) <www.iasuk.org> and Robert Thomas Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (2011, Hart) at Chapters 6 and 7.

6. See generally Rodger Haines Laws of New Zealand, Immigration para [2].

7. Benipal v Minister of Foreign Affairs (High Court Auckland, A878/83, A993/83 and A1016/83, 29 November 1985, Chilwell J). An appeal by the Crown was dismissed in Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222 (CA). See also Rodger Haines Laws of New Zealand, Immigration para [2].

8. Rodger Haines Laws of New Zealand, Immigration para [194].

9. This followed judicial criticism of the informal nature of the Terms of Reference. See further Rodger Haines “International Law and Refugees in New Zealand” [1999] NZ Law Review 119.

10. For an overview of the changes effected by the Immigration Act 2009 see Rodger Haines “Sovereignty Under Challenge - The New Protection Regime in the Immigration Bill 2007" [2009] NZ Law Review 149.

11. All decisions of the Refugee Status Appeals Authority from 1997 are to be found on the official website at <www.nzrefugeeappeals.govt.nz>. The leading decisions of the RSAA are collected at the New Zealand Refugee Law website <www.refugee.org.nz>. Some have been reported in the New Zealand Administrative Reports published by LexisNexis. The decisions of the IPT are currently found at <www.justice.govt.nz/tribunals/ipt>.

12. See Immigration Act 2009, s 129.

13. See Immigration Act 2009, s 164.

14. See Immigration Act 2009, s 130(5).

15. See Immigration Act 2009, ss 130(4) and 164.

16. See Immigration Act 2009, ss 131 and 164. It is clear that the formula “substantial grounds for believing that he or she will be in danger of being subjected to ...” has been taken from CAT, Article 3(1).

17. See Immigration Act 2009, s 133.

18. These essential characteristics have been drawn from the RSAA model.

19. See Immigration Act 2009, ss 135 and 226.

20. Immigration Act 2009, ss136 and 228.

21. Butler v Attorney-General [1999] NZAR 205 (CA).

22. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status at 196; Mohammed v Refugee Status Appeals Authority (High Court Auckland, M500/95, 21 December 1995, Tompkins J) at 2-3 and C v Refugee Status Appeals Authority (High Court Auckland, M1365-SW00, 4 May 2001, Nicholson J) at [60] and [61].

23. Refugee Appeal No. 523/92 Re RS (17 March 1995) (NZRSAA) <www.refugee.org.nz>. A comprehensive review of the case law is to be found in Refugee Appeal No. 72668/01 [2002] NZAR 649 (NZRSAA).

24. For an early example see Refugee Appeal No. 265/92 Re SA (29 June 1994) (NZRSAA) <www.refugee.org.nz>.

25. James Hathaway and William Hicks “Is There a Subjective Element in the Refugee Convention’s Requirement of ‘Well-Founded Fear’?” (2005) 26 Mich. J. Int’l L 505 and The Michigan Guidelines on Well-Founded Fear (2005) 26 Mich. J. Int’l L 491 at para [9]. Those Guidelines properly reflect the principles applied in New Zealand. See Refugee Appeal No. 75692 [2007] NZAR 307 (NZRSAA).

26. For the position prior to 29 November 2010 see Refugee Appeal No. 70656/97 (10 September 1997) (NZRSAA) and Refugee Appeal No. 72668/01 [2002] NZAR 649 (NZRSAA) <www.refugee.org.nz>.

27. Attorney-General v Tamil X [2010] NZSC 107 (NZSC) at [34] - [45].

28. See Immigration Act 2009, s 218.

29. See Practice Note 2/2010 (Refugee and Protection) (29 November 2010) at [20] <www.justice.govt.nz>. For the earlier practice of the Refugee Status Appeals Authority see Practice Note 1/2008 (11 September 2008) <www.nzrefugeeappeals.govt.nz >. The Immigration and Protection Tribunal Regulations 2010 (SR2010/355), reg 14 requires the IPT to arrange for “an independent interpreter” to attend an oral hearing of the IPT if it considers that an independent interpreter is reasonably required for the purpose of the oral hearing. An “independent interpreter” is defined as meaning a person who the IPT considers is competent to translate English into a foreign language that the appellant can understand and speak and to translate that foreign language into English; and is impartial. The analogue for the Refugee Status Appeals Authority is to be found in the Immigration (Refugee Processing) Regulations 1999 (SR1999/285), reg 20. The issue of independence of interpreters in the New Zealand RSD process is examined by Sabine Fenton in Expressing a Well-Founded Fear: Interpreting in Convention Refugee Hearings (2001) <www.refugee.org.nz>.

30. See Immigration Act 2009, ss 228 and 229.

31. See Immigration Act 2009, s 230. This duty exists also at common law. See for example Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA).

32. AB v Refugee Status Appeals Authority [2001] NZAR 209 (Nicholson J).

33. The duty of confidentiality is found in the Immigration Act 2009, ss 151 and 152. The subject is addressed in greater detail later in this paper.

34. See for example Refugee Appeal No. 72668/01 [2002] NZAR 649 (NZRSAA) at [45].

35. Attorney-General v Tamil X [2010] NZSC 107 (NZSC) at [37].

36. Sakran v Minister of Immigration (High Court Christchurch, CIV2003-409-001876, 22 December 2003, William Young J).

37. See Refugee Appeal No. 1/92 Re SA (30 April 1992) (NZRSAA) <www.refugee.org.nz>.

38. James C Hathaway The Law of Refugee Status (1991, Butterworths) at 86.

39. AA v Refugee Status Appeals Authority (High Court Auckland, CIV2006-404-7974, 29 June 2007, Harrison J).

40. A v Chief Executive of the Department of Labour (High Court Auckland, CIV2004-404-6314, 19 October 2005, Winkelmann J) at [36].

41. See Refugee Appeal No. 74665/03 (7 July 2004); [2005] NZAR 60 (NZRSAA) and Refugee Appeal No. 76044 (11 September 2008); [2008] NZAR 719 (NZRSAA).

42. See Santokh Singh v Refugee Status Appeals Authority (High Court Auckland, M1224/93, 9 February 1994, Smellie J) where approximately ten to fifteen minutes before the appeal hearing the lawyer (who was blind) was handed a magazine article and an earlier decision of the tribunal which addressed the competence of militant groups in Punjab to track potential victims throughout India and the availability of an internal protection alternative. During the hearing the tribunal put to the claimant matters raised in the two documents and no request for an adjournment was made. Counsel later regretted this decision. On judicial review it was held that adequate notice had not been given because the full significance of the earlier decision on the internal protection alternative had not been apparent and more than ten to fifteen minutes had been required to allow analysis and assessment of the information. A rehearing was ordered.

43. A v Chief Executive of the Department of Labour (High Court Auckland, CIV2004-404-6314, 19 October 2005, Winkelmann J) at [48] and [52].

44. See Immigration Act 2009, s 7 for the meaning of “classified information”.

45. See Immigration Act 2009, ss 33, 35 and 36.

46. See Immigration Act 2009, s 38(1) and (2).

47. See Immigration Act 2009, s 38(3).

48. For the specific provisions affecting the deployment of classified information in the context of hearings before the Immigration and Protection Tribunal, see Immigration Act 2009, Part 7, particularly ss 241 to 244. The role of the special advocate in the classified information context is discussed by John Ip in “Adoption of the Special Advocate Procedure in New Zealand’s Immigration Bill” [2009] NZ Law Review 207.

49. See Immigration Act 2009, ss 151 and 152. The not dissimilar provisions of the earlier Immigration Act 1987, s 129T were considered in Attorney-General v X [2008] NZSC 48; [2008] 2 NZLR 579 (NZSC) and in Refugee Appeal No. 76204 [Publication of Decision] [2009] NZAR 745 (NZRSAA).

50. See Immigration Act 2009, s 354.

51. See Immigration Act 2009, ss 151(2) and 152(1).

52. See Immigration Act 2009, s 245(1).

53. The proceedings must be commenced not later than 28 days after the date on which the person concerned is notified of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed. See Immigration Act 2009, s 247(1).

54. See Immigration Act 2009, s 247(2).

55. Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 at 1173 (HL).

56. The author wishes to acknowledge with gratitude the substantial assistance he has received from Pamela Anderson, Branch Manager, Refugee Research & Information Branch, Department of Labour, New Zealand in drafting this section of the paper . All enquiries about the RRIB should be addressed to Pamela Anderson at <Pamela.Anderson@dol.govt.nz>.

57. For a brief account of the library’s early years see Eleanor Hamlyn, “Spotlight on the New Zealand Refugee Status Library” Library Life 253 (February 2001) 28.

58. Participating states in the IGC are Australia, Canada, Finland, Germany, Ireland, New Zealand, Spain, Switzerland, United States of America, Belgium, Denmark, France, Greece, Netherlands, Norway, Sweden, United Kingdom.

59. As to the EU context see, for example, the papers cited at footnote 3 above.

60. Because this is a deeply entrenched and fundamental principle of the common law duty of fairness it can be said with confidence that the same approach will be taken by the Immigration and Protection Tribunal. See further Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA).

61. Compare the Nationality, Immigration and Asylum Act 2002 (UK), s 107(3) (added in April 2003) by which practice directions may “require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter”. See further PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132 at [48] to [50] per Carnwath LJ.

62. For the most recent formulation of the internal protection alternative in New Zealand, see Refugee Appeal No. 76044 (11 September 2008); [2008] NZAR 719 at [95] to [188] (NZRSAA). Further reference should be made to James Hathaway and Michelle Foster “Internal protection/relocation/flight alternative as an aspect of refugee status determination” in Feller, Türk & Nicholson (eds) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) 357 as well as to The Michigan Guidelines on the Internal Protection Alternative (1999) 21 Mich. J. Int’l L. 131. Those Guidelines properly reflect the principles applied in New Zealand.

63. Santokh Singh v Refugee Status Appeals Authority (High Court Auckland, M1224/93, 9 February 1994, Smellie J).

64. Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 McHugh and Kirby JJ at [58].

65. Natasha Tsangarides The Refugee Roulette: The Role of Country Information in Refugee Status Determination (2010), Immigration Advisory Service at p 66 <www.iasuk.org>. For a further discussion of the advantages and disadvantages of the country guidance system in the UK see Robert Thomas Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (2011, Hart) at Chapter 7.

66. See KH (Sudan) v Secretary of State for the Home Department [2008] EWCA Civ 887; [2009] Imm AR 139 (CA) at [2] per Sedley LJ.

67. See AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 (HL) at [27] to [30].

68. See KH (Sudan) v Secretary of State for the Home Department [2008] EWCA Civ 887; [2009] Imm AR 139 (CA) at [3] per Sedley LJ.

69. Ibid at [4].

70. FB (Democratic Republic of Congo) v Secretary of State for the Home Department [2008] EWCA Civ 457; [2008] Imm AR 589 (CA).

71. Ibid at [15] and [21].

72. The country guidance system was adopted formally in 2003. As at 29 March 2011 there were 316 current country guidance decisions relating to 58 countries (though the overall total of CG decisions was 479 relating to 65 countries). See List of Country Guideline Determinations at <www.tribunals.gov.uk>. The resources required to maintain a system of this magnitude must be weighed against the benefits claimed to be derived. In this context note the following observation made by Robert Thomas in Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (2011, Hart) at 223:

Other concerns with the country guidance process have concerned the amount of time that particular country issues take to get finally resolved and the actual effectiveness of such guidance once issued. Country guidance issues can often be challenged in the higher courts and then sent back and forth between them and the Tribunal. The classic example is provided by the extraordinary country guidance litigation over returns to Zimbabwe. Over a four year period, the Tribunal issued four country guidance decisions on the safety of returnees to Zimbabwe after successive remittals by the Court of Appeal.

73. The making of asylum policy through country guidance needs to be acknowledged. See further Robert Thomas in Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (2011, Hart) at 201-202. See also Natasha Tsangarides “The Politics of Knowledge: An Examination of the Use of Country Information in the Asylum Determination Process” (2009) 23 Immigration, Asylum and Nationality Law 252.

74. See for example PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132 where “deep unease” was expressed at the way in which the evidence of the claimant’s expert was rejected in favour of an email tendered by the Home Office. The latter was described as “a flimsy basis for the conclusions to which it led”. See Maurice Kay LJ at [24]. The very length and complexity of country guidance cases can be a substantial impediment to their proper application and indeed to an accurate identification of the points determined. See Carnwath LJ at [54] to [56].

75. See for example Heaven Crawley “Refugees and Gender: Law and Process” (2001, Jordans) at [10.5].

76. See for example Brian Whitaker Unspeakable Love: Gay and Lesbian Life in the Middle East (2006, University of California Press) and Ann Jones Kabul in Winter: Life without Peace in Afghanistan (2006, Metropolitan Books).

77. KH (Sudan) v Secretary of State for the Home Department [2008] EWCA Civ 887; [2009] Imm AR 139 (CA) at [4] per Sedley LJ.

78. These dangers are illustrated by PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132 at [32] to [43] per Maurice Kay LJ. For a discussion of other problems inherent in applying country guidance cases see Robert Thomas in Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (2011, Hart) at 214-220.

79. See Robert Thomas in Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (2011, Hart) at 234.

80. See <www.nzrefugeeappeals.govt.nz>.

81. Search conducted on 23 March 2011.

82. Adan v Secretary of State for the Home Department [2001] 2 AC 477 (HL) .

83. See for example Refugee Appeal No. 1312/93 Re GJ [1998] INLR 387 (whether sexual orientation qualifies as a ground for “being persecuted”) followed and applied in R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629, 643D (HL); Refugee Appeal No. 74665/03 [2005] NZAR 60; [2005] INLR 68 (whether gays can be denied recognition as refugees on the basis that they can be required to be “discreet”) referred to with approval in four of the judgments given in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (SC); and Refugee Appeal No. 70366/96 Re C [1997] 4 HKC 236 referred to in Adan v Secretary of State for the Home Department [1999] 1 AC 293, 307A (HL).

84. See also the discussion in Robert Thomas Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (2011, Hart) at 146-147.

85. There is now a substantial body of literature on the subject. Useful reference can be made to Gregor Noll (ed) Proof, Evidentiary Assessment and Credibility in Asylum Procedures (2005, Martinus Nijhoff Publishers); Michael Kagan “Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination” (2003) 17 Geo. Immigr. LJ 367 and Hilary Evans Cameron “Refugee Status Determinations and the Limits of Memory” (2010) 22 IJRL 469.

86. Daniel L Schacter The Seven Sins of Memory: How the Mind Forgets and Remembers (2001, Houghton Mifflin Company) at 9.

87. Hilary Evans Cameron “Refugee Status Determinations and the Limits of Memory” (2010) 22 IJRL 469.

88. Stephen Sedley “Asylum: Can the Judiciary Maintain its Independence?” in IARLJ Stemming the Tide or Keeping the Balance - The Role of the Judiciary (2002) 319 at 324.

89. Natasha Tsangarides “The Politics of Knowledge: An Examination of the Use of Country Information in the Asylum Determination Process” (2009) 23 Immigration, Asylum and Nationality Law 252. The author at 253 correctly points out that “[t]he production of knowledge is inherently political, embedded in social and cultural processes that involve power relations and subjectivity”. She argues that “... the accessibility to, and selection and use of information necessarily involve subjective processes, which deflate any attempt at denoting such information as objective”. Her point at p 263 is that “... there is a need for the acknowledgement of the limitations of COI, namely its ability to establish certainty or fact, which should be expressed through heightened analysis of COI amongst stakeholders. It calls for the recognition of the subjectivity involved in knowledge production, interpretation and use”.

90. Walter Lippmann Public Opinion (1998, with a new introduction by Michael Curtis, Transaction Publishers) at xvi and 16.

91. See also Robert F Barsky Constructing a Productive Other: Discourse Theory and the Convention Refugee Hearing (1994, John Benjamins Publishing Company).