The High Court in Auckland. Photo: RNZ / Simon Rogers
This story has been updated to clarify details about the man's appeal.
The High Court has criticised a tribunal for seeming to suggest a Pakistani man could bribe his way out of a situation where he might be imprisoned and tortured.
The Immigration and Protection Tribunal had heard an appeal in Auckland from an asylum seeker refused refugee status and who was accused of people trafficking.
The 49-year-old had claimed he had previously been detained in Pakistan and faced persecution if he returned.
Justice Becroft said the tribunal's ruling - which refused him protected person status - was "effectively to rely on, if not encourage" using bribery as a way out for the man, who it called Mr AM.
"Effectively, the Tribunal is saying that it was in no doubt that should the worst come to the worst, and Mr AM is remanded in prison, given the endemic corruption in Pakistan, he will be able to bribe/ buy his way out of prison a second time. The Tribunal does not say this in so many words. But that is clearly what the Tribunal means.
"The Tribunal's message to Mr AM is that if his detention in prison falls below accepted human rights standards, then worry not: just as you have in the past, you can again exploit a corrupt prison system by being corrupt yourself. You can bribe the authorities, and through that illegality, just like last time, you will be able to gain appropriate protection."
He granted leave to appeal, saying: "I would think that any New Zealand appeal court would reflect long and hard before accepting reasoning which countenanced, if not approved, the use of bribery and corruption to avoid human rights breaches. I am not prepared to do so. Such reasoning impacts on how New Zealand discharges its international obligations and reflects upon its standing as a responsible member of the international community."
The tribunal concluded he was a "man of financial means and has been able to access large sums of money in the past to regulate the conditions of his detention" and that it had "no doubt he will be able to do so again in the future". The case details are suppressed on the tribunal website on the basis they would be likely to lead to him being identified.
The appeal case will be called next month at the High Court in Auckland for a preliminary hearing.
Justice Becroft said the tribunal was saying the man's finances allowed him protection that he might need, and that it formed part of its decision that he did not face a 'real chance' of persecution, the threshold his claim needed to reach.
"The Tribunal did not add these comments as an afterthought. They are explicitly mentioned, and in some detail, over 12 lines in this part of its decision. In fact, the point is made twice over. They
are not words that bespeak idle suggestions, nor a reinforcing afterthought. They are words carefully chosen and apparently integral to the Tribunal's reasoning."
The Crown said it was relevant to take the matter into account as part of its wide and legitimate factual assessment, and should not be interpreted as approval of corruption. The man's lawyer said the tribunal had also never asked for evidence as to whether he could in reality pay a bribe.
The judge said it was an "otherwise unimpeachable decision".
If the man's appeal is successful his case could be reheard, but the immigration minister would have to make a final decision. That is because there are substantial grounds for believing he had committed serious crimes, including people trafficking and using false passports.
If his appeal is successful, his case could be reheard, but the immigration minister would have to make a final decision because of the finding that he had likely committed serious crimes.
The judge ruled the tribunal legitimately concluded that a "confession would not be required, let alone extracted by torture, given there was ample evidence to prove the charges against Mr AM".