26 Feb 2019

Error made in rejecting man's asylum claim was 'harsh'

3:05 pm on 26 February 2019

A Pakistani man has won the first stage of a battle over a sick note which derailed his claim to be facing death at the hands of the Taliban.

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Photo: 123RF

A Refugee and Protection officer (RPO) admitted his decision to reject the asylum claim was harsh, but found it could not be overturned.

The Court of Appeal said the officer made an error in deciding the man failed to attend an interview to assess his claim, when the information available to him showed the man was unable to do so.

The man's doctor provided a medical certificate which did not state his illness, but was accompanied by medical notes which did.

His lawyers said that should have been enough to schedule another interview, but instead the Refugee Status Branch rejected his claim.

When they complained to the Refugee Status Branch of Immigration New Zealand saying the decline on a mere technicality was unfair, the agency accepted there were genuine grounds for complaint.

"In the circumstances, we would consider granting your client another interview," it said.

"However, the Act does not permit a decision of an RPO to be re-opened once made.

"I have spoken to the RPO who acknowledges that the decision was, in the circumstances, harsh."

The man claims he is at risk of being killed if he returns to Pakistan.

The Court of Appeal ruled a judicial review of that decision should be allowed in the High Court because the man, "through no fault of his own", lost his right to have his claim assessed by the officer and then by an appeals tribunal if he was unsuccessful.

"The error made by the Refugee and Protection Officer in concluding that the appellant had failed to attend the interview, when the evidence available to him showed the appellant was unable to attend, led to the statutory process derailing," it ruled.

"The requirements relating to medical certificates [...] are not statutory requirements and need to be applied with some leeway to claimants, given the significance to them of their claims for refugee status.

"The outcome was that the Refugee and Protection Officer made a decision to refuse to recognise the appellant as a refugee even though he acknowledged in the decision that he was not in a position to do so. In effect, there was no consideration of the merits of the claim at all."

The full decision can be found here.

"Absolutely shocking"

A refugee advocacy group says it's shocked and frustrated that the asylum seeker's application was denied because of his medical certificate.

Refugee Council of New Zealand president Arif Saeid said it was clear from the decision that the man was sick and what he provided should have been enough.

"How much more specific [did] the Refugee and Protection Officer want it to be?" Dr Saeid said.

"I can't believe they did not accept this, this is absolutely shocking."

Mr Saeid said now the man would have to wait even longer in the hopes of attaining refugee status.