In the High Court of New Zealand AUCKLAND Registry

CIV-2003-404-5872

UNDER the Judicature Amendment Act 1972

AND UNDER the Declaratory Judgments Act 1908 and/or Part 7 of the High Court Rules

IN THE MATTER OF Part IVA of the Immigration Act 1987

AND

IN THE MATTER OF Sections 8, 9 and 27 of the New Zealand Bill of Rights Act 1990

BETWEEN AHMED ZAOUI
Plaintiff

AND ATTORNEY-GENERAL
First Defendant

AND THE INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY
Second Defendant

AND THE HUMAN RIGHTS COMMISSION
Intervener

Hearing: 1, 2 and 3 December 2003

Appearances: R E Harrison QC with D Manning and R McLeod for Plaintiff
K L Clark and A S Butler for First Defendant
W M Wilson QC with J Mallon for Second Defendant
R Hesketh and S Bell for Human Rights Commission

Judgment: 19 December 2003

Summary: 19 December 2003

[on applications for judicial review and declaratory relief]
Solicitors:
Short & Co, P O Box 1153 Auckland
McLeod &Associates, Level 10 Southern Cross Building, cnr Victoria/High Streets, Auckland
Crown Law, P O Box 5012 Wellington
Bell Gully, P O Box 1291 Wellington
Human Rights Commission, P O Box 6751 Wellesley Street Auckland
Copies for:
R E Harrison QC and W M Wilson QC

Preface, Facts and Issues

Mr Zaoui, the plaintiff, is an Algerian national. He arrived in New Zealand on 4 December 2002. He sought refugee status at Auckland International Airport. He was detained. He still is. On 30 January 2002 his refugee application was declined by a Refugee Status officer acting under the Immigration Act 1987 Part IVA . On 1 August 2003 the Refugee Status Appeals Authority (RSAA) allowed his appeal against the officer¡¯s decision concluding (p223) :

[982] The appellant has a well-founded fear of being persecuted for a Convention reason if returned to Algeria.

[983] The Authority finds that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted.

In the meantime, on 20 March 2003 the Director of Security (¡°Director¡±) appointed under the New Zealand Security Intelligence Service Act 1969 (the ¡°SIS Act¡±) provided a Security Risk Certificate (the ¡°Certificate¡±) issued under s114D(1) to the Minister of Immigration.

On 23 or 24 March 2003 she, after receiving an oral briefing from the Director on the contents of the Certificate (s114E), made a preliminary decision to rely on it (s114G(1)). Mr Zaoui received the Minister¡¯s preliminary decision on 27 March 2003. On the same day he applied to the Inspector-General of Intelligence and Security (the ¡°Inspector-General¡±) appointed pursuant under the Inspector-General of Intelligence and Security Act 1996 (the ¡°Inspector-General¡¯s Act¡±) for review of the Director¡¯s decision to make the Certificate.

After a course of events discussed later, on 6 October 2003 the Inspector-General delivered what was called an ¡°interlocutory decision¡± as to the manner in which he intended to continue and conclude the review of the Director¡¯s decision to make the Certificate in relation to Mr Zaoui.

In these judicial review proceedings, Mr Zaoui challenges a number of passages of the interlocutory decision. For the purposes of the case, his advisers divided those rulings into what they called the ¡°procedural ruling¡± and the ¡°substantive ruling¡±. Mr Zaoui claims the Inspector-General erred in law in relation to both rulings in the manner later discussed and seeks orders declaring the procedural and substantive rulings unlawful and in breach of the New Zealand Bill of Rights Act 1990 (¡°BoRA¡±) ss8, 9 and 27(1) plus orders setting aside the ruling; directing the Inspector-General to re-consider and determine the review in light of the Court¡¯s decision and in particular having regard to the Court¡¯s interpretation of Part IVA plus, in the alternative, if the rulings are upheld under Part IVA, with a declaration that the provisions of Part IVA leading to that outcome are inconsistent with BoRA.

This judgment deals with the judicial review proceeding.

Thus the issues the parties ask the Court to decide all relate to the timing of, and the process by which, the Inspector-General is reviewing the Certificate issued by the Director in relation to Mr Zaoui.

Because of the way the parties framed the issues for decision, this judgment :

¡ñ Does not deal with Mr Zaoui¡¯s life before arriving in New Zealand.

¡ñ Does not deal with the circumstances of his arrival at the New Zealand border.

¡ñ Does not deal with his detention since his arrival.

¡ñ Only incidentally deals with Mr Zaoui¡¯s successful appeal to the RSAA.

¡ñ Only incidentally deals with what might follow :

¡ñ should the Inspector-General decide the Certificate in relation to Mr Zaoui was properly made.

¡ñ should any appeal on legal grounds which Mr Zaoui might make to the Court of Appeal be unsuccessful.

¡ñ should the Minister of Immigration thus be required to make a final decision to rely or not rely on the confirmed Certificate and accordingly whether or not Mr Zaoui should be deported from New Zealand notwithstanding his refugee status.

_____________________________________________________________________

Summary of parties¡¯ positions

[44] Mr Zaoui¡¯s basic proposition is that the Inspector-General¡¯s review will be conducted in breach of the principles of natural justice if permitted to proceed on the present basis because he has received inadequate particulars as to the security risk he is alleged to present and the factual assertions underlying the Director¡¯s assessment that he is such a risk.

[45] Secondly, he asserts the Inspector-General is wrong in law in declining to take account in the review of BoRA and the international human rights instruments. He accordingly submitted that the issues to be addressed were whether the principles of natural justice apply to the review; whether the Inspector-General erred in law in holding that Mr Zaoui was not entitled to a summary of the allegations against him derived from ¡°classified security information¡±; whether he erred in law in failing to consider whether it was legally possible, consistent with Part IVA, to provide the information sought as to the nature of the threat he poses to national security, the grounds to regard him as a danger to the security of New Zealand in terms of Art 33.2 of the Refugee Convention and the nature of that danger plus the substance of the factual allegations against him relied on in making the Certificate and whether the Inspector-General erred in law in holding his focus should be limited to the refugee deportation security criteria.

[46] The Crown¡¯s position is that refugee matters and security matters are statutorily separate with neither overlapping into the other¡¯s arena. Accordingly, the international human rights instruments have no application to the review other than if and when the Minister comes to consider whether to make a final decision to rely on the confirmed Certificate. And she has already indicated an intention to take that dimension into account if that position arises.

[47] The Crown also took the view the Court has no jurisdiction to deal with the proceedings because of the privative provisions of s19(9) of the Inspector-General¡¯s Act and that, in any case, because the review process is not concluded, the proceeding is premature. The Crown also challenged the Court¡¯s power to make the declaration of inconsistency Mr Zaoui seeks.

[48] The Inspector-General, through counsel, offered to provide any assistance sought but otherwise abided the decision of the Court. Mr Harrison suggested it was odd that the Director, not the Inspector-General, invoked s19(9).

[49] The Human Rights Commission took the position, generally supportive of Mr Zaoui, that it was of prime importance to New Zealand, a long-term adherent to fundamental human rights values, that we be seen as maintaining international human rights standards to the maximum extent compatible with national and international security.

Result

[169] The relief sought by Mr Zaoui is a declaration that the Inspector-General¡¯s ¡°procedural¡± ruling is unlawful, in breach of ss8, 9 and 27(1) of BoRA, ultra vires and invalid in holding that BoRA, fairness and the principles of natural justice were inapplicable to a review of the Certificate; that because ¡°classified security information¡± could not be disclosed it was not lawfully or practically open to order a written summary of the allegations to be provided to Mr Zaoui; and that it was not possible in law to provide Mr Zaoui with information sought as to the basis for the Director¡¯s conclusion that he was a threat to national security. In relation to the ¡°substantive¡± ruling, again the relief sought was that the ruling was unlawful, in breach of ss 8 and 9 of BoRA, ultra vires and invalid in concluding that BoRA was inapplicable to the review of the Certificate and the scope of the review was limited to the applicability of the ¡°relevant refugee deportation security criteria¡± and that it was in error of law having regard to the potential adverse consequences for the plaintiff of being deported that the Inspector-General was not required to have regard to the human rights dimension.

[170] Put more shortly, in essence what Mr Zaoui seeks is, first, a summary of the allegations underlying the Certificate without breaching a prohibition on the disclosure of ¡°classified information¡± in s114B and, secondly, a declaration that the Inspector-General¡¯s view that the international human rights instruments and jurisprudence are irrelevant to the Inspector¡¯s function under s114I was legally incorrect.

[171] Before trying to formulate the relief to be granted, it should be observed, for the reasons appearing throughout this judgment :

s114I and s19 of the Inspector-General¡¯s Act support Mr Zaoui¡¯s entitlement to the relief he seeks;

Part IVA, particularly s114A, also support Mr Zaoui¡¯s entitlement to the relief he seeks;

BoRA, particularly s27(1), is relevant to the Inspector-General¡¯s review and supports Mr Zaoui¡¯s entitlement to the relief he seeks;

The Refugee Convention and international jurisprudence and writings relating to it all, as might be expected, strongly support Mr Zaoui¡¯s entitlement to the relief he seeks;

ICCPR, CAT and the other international human rights instruments and commentaries on them reviewed in this judgment also, as might be expected, strongly support Mr Zaoui¡¯s entitlement to the relief he seeks.

When all that material uniformly points to the same conclusion, there is every reason to grant Mr Zaoui the relief he seeks, providing it can be achieved within the statutory limitations discussed in the judgment, particularly the definition of ¡°classified security information¡± which ¡°cannot be divulged¡± to him.

[172] Therefore, all of the matters discussed in this judgment lead to the conclusion that :

s114I in combination with s19 of the Inspector-General¡¯s Act do not debar :

the provision to Mr Zaoui of a summary of the allegations against him which underlie the making of the Certificate provided that information does not breach the definition of ¡°classified security information¡± which ¡°cannot be divulged¡±. BoRA, natural justice, s114I and s19 of the Inspector-General¡¯s Act and Part IVA mandate the provision of such a summary consistent with overseas practice.

The right of a person charged ¨C or subject to a Certificate - to know at least the outline of the allegations against them and the basis on which they are made is one of the most fundamental tenets of natural justice and should be implemented in Mr Zaoui¡¯s case as far as is possible consistent with the definition of ¡°classified security information¡±.

Apart from the limitation that evidence called by Mr Zaoui ¨C as opposed to evidence given by him ¨C must relate to his ¡°record, reliability and character¡±, there is no statutory limitation on the evidence and submissions which he is entitled to put before the Inspector-General for consideration as part of the determination whether the Certificate was ¡°properly made or not¡±. That involves simultaneous consideration of material provided pursuant to the two statutory routes to that decision discussed in the judgment. Having regard to the history of this matter to date, it will undoubtedly involve reference to the international human rights instruments and international human rights jurisprudence.

It is for the Inspector-General to decide what relevance and weight he accords the international human rights instruments and international human rights jurisprudence but having regard to the discussion on s114I, Part IVA, the balance of the Act, BoRA in particular, the international human rights instruments and the international human rights jurisprudence, the comment by the Inspector-General (para [28]) that the ¡°general issues of international jurisprudence are beside the point¡±, cannot be a correct statement of the position.

The actual form of the orders to be made is now a matter for consultation between counsel with a view to their agreeing on the wording. Leave is reserved to apply further in the event they cannot agree.

Mr Zaoui¡¯s application for a declaration of inconsistency is declined.

The Crown¡¯s defences based on s19(9) being a privative clause and the review being brought prematurely are both dismissed.

If costs are an issue between these parties, this would seem incontestably to be a proceeding for which costs on a 3C scale should be ordered but if the parties are unable to agree, memoranda may be filed with that for the plaintiff within 35 days of the date of delivery of this judgment and that from the Crown within 42 days with the parties certifying, if they consider it appropriate so to do, that the court can resolve all questions of costs without a further hearing.

Signed at ¡­2:03pm this¡­19th¡­¡­¡­..day of¡­¡­¡­December¡­¡­.2003

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