Supreme Court Judgment Adds To Uncertainty

The Supreme Court has delivered a buck each way decision with a judgment that will see the Minister of Immigration considering Ahmed Zaoui's human rights should a review of a security risk certificate be upheld. It also ruled that a high benchmark of security threat to New Zealand would need to be proven before Mr Zaoui could be deported.

The Crown won its appeal over a Court of Appeal judgment that said Mr Zaoui's human rights should be considered during a review of the security risk certificate - issued against him by the Security Intelligence Service (SIS) in March 2003.

The Inspector General of Intelligence and Security, Justice Neazor is now cleared to review whether the SIS was correct in issuing the risk certificate and deeming Mr Zaoui a threat to New Zealand's national security.

The Supreme Court stated: "He (the Inspector General) is not to determine whether Mr Zaoui is subject to a threat which would or might prevent his removal from New Zealand."

The Supreme Court directs that Mr Zaoui's human rights must be considered by the Minister of Immigration - should the risk certificate be upheld.

The Supreme Court also found that the Minister of Immigration and other ministers "are not to take steps towards deportation if they are satisfied that there are substantial grounds for believing that the person in question would be in danger of being arbitrarily deprived of life or of being subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The judgment leaves many areas uncertain. For example, what weight does the Inspector General place when considering New Zealand's reputation in the international community?

It is accepted by most reasonably minded people that a refugee who has had a security risk certificate upheld ought to have his or her human rights evaluated thoroughly and fairly. Central to this premise is a consideration as to what will happen to the individual on repatriation.

In Ahmed Zaoui's case, the Supreme Court considered at what stage Mr Zaoui's human rights ought to be considered, and by whom.

The Crown's argument sought to and successfully overturned a Court of Appeal ruling that ensured Ahmed Zaoui's human rights would be considered by the Inspector General of Intelligence and Security.

The Supreme Court judged that this aspect ought to be considered by the Minister of Immigration and that the Inspector General of Intelligence and Security ought to consider during the review of a security risk certificate only aspects of national security and test the accuracy and relevancy of the material that led to the SIS issuing a risk certificate against Mr Zaoui and determining him a risk to New Zealand's national security.

Through his lawyers, Mr Zaoui argued that torture and/or extrajudicial execution is a likely consequence of a New Zealand government order to deport Mr Zaoui to Algeria, and that the Inspector General is the best person to evaluate this aspect rather than a Minister of Immigration.

Reasons given included:

Clearly the rights at issue are very important ones, both under domestic and international law.

The protection of refugees from refoulement is the paramount principle of the Refugee Convention.

The prohibitions on torture and refoulement, to face torture or death have the status of what in legal terms is referred to as peremptory norms. These are obligations owed by New Zealand to the international community under two major human rights Covenants and are conferred, it has been argued, by the Bill of Rights.

Submissions before the Supreme Court considered two main questions, firstly the above mentioned: Who should consider all of Mr Zaoui’s human rights? And secondly: How does New Zealand define national security?

The later question appears to remain unclear and open to interpretation, one would suggest by the Inspector General of Intelligence and Security.

Mr Zaoui's lawyers argued that the test of endangerment of national security interests requires “very serious and substantial danger” to the security of New Zealand, or alternatively “serious and substantial danger”.

The Supreme Court accepted this but it is unclear as to how this would be weighted in the balancing equation.

The Supreme Court has indicated that a high threshold of threat to New Zealand be observed when considering whether Mr Zaoui ought to be deported. And as the Court of Appeal (COA) found, this degree of threat must be balanced against the threat to Mr Zaoui's person should he be deported to Algeria - the COA ruled that this risk ought to be weighted so as to protect the individual from being delivered into the hands of those would either cause or allow harm, torture or execution to befall on him.

The judgment does not therefore give Mr Zaoui any more protection than before, but potentially, considering New Zealand's political environment, does offer him a certain degree of uncertainty and consequentially less protection.

Justice Neazor has decided that a special advocate enter into the process, an experienced legal practitioner, who can challenge the validity of the material the SIS places before the review. In a sense this special advocate will act as Mr Zaoui's representative - however while this position allows a 'defender' to sight classified material held secret by the SIS, the special advocate cannot return to Mr Zaoui or his legal team to disclose the information nor seek explanation for allegations/asserts contained in the classified material.

This is a similar procedural structure that occurs in the United Kingdom.

Mr Zaoui's legal team said today that the Supreme Court has not determined whether hearsay evidence (or for that matter whether second, third or fourth degree of hearsay evidence) would be admissible to be placed before the Inspector General.

Considering Labour's recent dive in the polls and New Zealand First's rise, it follows that in a highly charged political arena, it is likely, potential coalition partners could threaten to erode further an incumbent party's political poll position should it not take an overly nationalistic over inter-nationalistic position on a case like Ahmed Zaoui's.

Indeed, post General Election day, a minor coalition partner with an aggressive and totalitarian immigration policy could find itself holding the balance of power. It may on entering a coalition, hold the Immigration Ministerial warrant and exhort its own policy interpretation over procedural consideration or departmental advice on such a deportation and thus render an outcome out of step and out of keeping with the vast majority of New Zealanders.

Additionally, it follows that even if such a party did not hold the immigration ministerial warrant it would likely engineer a political environment by waving the stability flag and command undue influence beneath that umbrella of Cabinet collective responsibility. The danger, the result, would be the erosion of a more centrist immigration minister's value judgments and decisions. This too, even considering the latest poll positioning, would prove to be out of step with the majority of New Zealanders.

Placing the political arena aside, what is wrong with having a Minister of Immigration considering an individual's human rights before he/she opens the gate and shoves them out into the wilderness?

Well, in contrast to the Inspector General, a Minister of Immigration would have three working days within which to make a 'final decision'.

The Immigration Minister would not have had access to the classified security information or the evidence and submissions provided by Mr Zaoui.

The Minister would have to address the refoulement/torture issues after the fact in the face of a confirmed certificate, and, would not be bound to receive further evidence and representations.

Reintroducing the political aspect, there may still remain one last exit clause from this long-lingering case of disinformation and legal athleticism.

The Labour-led government could withdraw its support for the security risk certificate.

As the Listener's Gordon Campbell rightly wrote in February: "In an interview conducted before the Supreme Court decision of February 3 (which decided whether the Crown will be allowed to appeal its last setback), I asked Swain (Minister of Immigration) whether he felt the director's use of the wrong security definition was sufficient reason to withdraw the certificate. 'If the Court gives a decision that says the wrong thing was used,' Swain replied, 'then we have to give consideration about the future. No question about that.'."

Gordon Campbell continued: "Withdrawal may become an increasingly attractive option. If one takes the initial SIS summary of the classified evidence against Zaoui – set out in the Inspector-General's judgment of September 16, 2003, which summarises the evidence that Swain's predecessor Lianne Dalziel presumably relied upon – and compares it with the summary released by court order in January 2004, a striking difference emerges. Initially, the SIS claimed that it had classified evidence pertaining to Zaoui's movements after he left Switzerland, but this claim has vanished from its January 2004 summary. Apparently, the SIS used a set of classified evidence in 2003 to convince the minister, one part of which it now seems unwilling to place before the Inspector-General."

For Labour's political strategists, it may be a point well worth exploring - particularly if it favors a coalition with the Progressives, the Greens, and United Future New Zealand over the nightmare of a Labour/New Zealand First axis.

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