************* ANDERSON
P
[1] Mr Zaoui is an Algerian National who
entered New Zealand in December 2002 and claimed refugee
status. The Refugee Status Appeals Authority upheld that
claim in August 2003 in consequence of which Mr Zaoui has
the benefit of the provisions of the Convention relating to
the Status of Refugees 1951, to which New Zealand is a
party. Notwithstanding, Mr Zaoui is embroiled with a formal
process, instigated by the Director of Security, who holds
office under the New Zealand Security Intelligence Act 1969,
which could lead to his expulsion from New Zealand. Aspects
of that process have been the subject of judicial review
proceedings in the High Court. The comprehensive judgment of
Williams J on the review is reported, Zaoui v
Attorney-General [2004] 2 NZLR 339. I have also had the
advantage of reading in draft the detailed and learned
reasons for judgment of Glazebrook J on the present appeal.
I think it appropriate, therefore, to confine my reasons for
judgment to an overview and an expression of concurrence
with Glazebrook J’s reasons and conclusions.
[2] Article
33 of the Refugee Convention provides as
follows:
1. No Contracting State shall expel
or return (“refouler”) a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would
be threatened on account of his race, religion, nationality,
membership of a particular social group or political
opinion.2. The benefit of the present provision may not,
however, be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a
final judgment of a particularly serious crime, constitutes
a danger to the community of that
country.
[3] Article 33 of the Refugee
Convention is recognised by s 129X of the Immigration Act
1987 in the following terms:
(1) No person who has been
recognised as a refugee in New Zealand or is a refugee
status claimant may be removed or deported from New Zealand
under this Act, unless the provisions of Article 32.1 or
Article 33.2 of the Refugee Convention allow the removal or
deportation.
(2) In carrying out their functions under
this Act in relation to a refugee or refugee status
claimant, immigration officers must have regard to the
provisions of this Part and of the Refugee Convention.
[4]
The constraints on expulsion or return could be weakened in
practice by a Contracting State unless it has a fair and
formal procedure for determining whether, in any particular
case, a refugee is deprived of protection by virtue of art
33.2. As a general proposition, for a system to be fair, it
would have to recognise and apply the ordinary principles of
natural justice which in New Zealand are affirmed by s 27 of
the New Zealand Bill of Rights Act 1990 (‘BORA’). A
fundamental aspect of natural justice is the right to know,
and to be accorded the opportunity of being heard in respect
of, matters which might be considered in the course of a
decision affecting a person’s rights or interests. But it
may sometimes be the case that the Contracting State’s
grounds for regarding a refugee as a danger to the security
of that country are based on classified information, the
disclosure of which, to others including the refugee facing
refoulement, may compromise the source of the information or
State security operations. This can produce a conflict
between the refugee’s rights to natural justice and the
State’s interest in its own security. In New Zealand there
is a legislative mechanism intended to bring a measure of
reconciliation between the conflicting rights and interests.
This is provided in Part IVA of the Immigration Act
1987.
[5] The object of Part IVA, which is not restricted
to refugees but applies generally to persons who may be
liable to be prevented entry to or expelled from New Zealand
is set out in s 114A in the following terms:
The object of this Part is to -(a) Recognise that the New
Zealand Security Intelligence Service holds classified
security information that is relevant to the administration
of this Act; and
(b) Recognise that such classified
security information should continue to be protected in any
use of it under this Act or in any proceedings which relate
to such use; and
(c) Recognise that the public interest
requires nevertheless that such information be used for the
purposes of this Act, but equally that fairness requires
some protection for the rights of any individual affected by
it; and
(d) Establish that the balance between the public
interest and the individual’s rights is best achieved by
allowing an independent person of high judicial standing to
consider the information and approve its proposed use;
and
(e) Recognise that the significance of the information
in question in a security sense is such that its approved
use should mean that no further avenues are available to the
individual under this Act and that removal or deportation,
as the case may require, can normally proceed immediately;
and thus
(f) Ensure that persons covered by this Act who
pose a security risk can where necessary be effectively and
quickly detained and removed or deported from New
Zealand.
[6] The whole of Part IVA is
appended to this judgment but it is convenient to summarise
it at this point.
[7] The Minister of Immigration may be
provided by the Director of Security with a security risk
certificate in terms of s 114D(1) of the Immigration Act.
The purpose of such certificate is to provide the Minister
with information in light of which a decision may be made
which could lead to the deportation or removal of a person
from New Zealand. The process envisages the possession by
the Director of classified security information which
categorises the subject of the certificate in terms of
stated security criteria. “Classified security information”
is defined by s 114B in terms of a threat to the security,
public order or public interest posed by an individual and
in terms also of security reasons why such information
cannot be disclosed to the individual or others. Relevant
security criteria are defined in s 114C. Of particular
relevance to Mr Zaoui is s 114C(6) which
provides:
The relevant refugee deportation
security criteria are a combination of any 1 or more of the
criteria listed in subsection (4) as relevant deportation
security criteria, taken together with either or both of the
following criteria:(a) That there are reasonable grounds
for regarding the person as a danger to the security of New
Zealand, in terms of Article 33.2 of the Refugee
Convention:
(b) That the person is a danger to the
community of New Zealand, having been convicted by a final
judgment of a particularly serious crime, in terms of
Article 33.2 of the Refugee Convention.
[8]
One of the important issues in this case is whether and if
so to what extent international law is imported by or
colours the meaning or connotations of s 114C(6) because of
the reference to the Refugee Convention.
[9] The Minister
may rely on a security risk certificate, initially as a
preliminary decision and later as a final decision, with the
ultimate consequence that immigration proceedings before
Tribunals or Courts are bound to be dismissed and the
subject of a certificate expelled. After the preliminary
decision by the Minister and before any final Ministerial
decision, the subject may apply for a review of the
Director’s decision to make a security risk certificate.
Such review is carried out by the Inspector-General of
Intelligence and Security, who holds office pursuant to the
Inspector-General of Intelligence and Security Act 1996
(‘I-G Act’).
[10] The function of the Inspector-General on
a review, prescribed by s 114I(4), is to determine whether
-
(a) The information that led to the making
of the certificate included information that was properly
regarded as classified security information; and(b) That
information is credible, having regard to the source or
sources of the information and its nature, and is relevant
to any security criterion; and
(c) When a relevant
security criterion is applied to the person in light of that
information, the person in question is properly covered by
that criterion – and thus whether the certificate was
properly made or not.
[11] If the
Inspector-General decides that the security risk certificate
was properly made, the Minister must make a final decision
within three working days whether to rely on it. Such a
decision leads to the ending of immigration related
litigation and to the expulsion of a person as mentioned.
But if the Inspector-General decides that the certificate
was not properly made, the person who sought the review must
be released from custody immediately and normal immigration
processes resumed.
[12] In the present case the Director
issued a security risk certificate in relation to Mr Zaoui
on 20 March 2003. Three days later the Minister made a
preliminary decision to rely on the certificate and issued a
notice to that effect. Mr Zaoui immediately applied to the
Inspector-General for a review. In memoranda dated 16
September 2003 and 7 October 2003 the Director, by counsel,
informed Mr Zaoui’s legal advisers and the Inspector-General
of certain legal and factual matters on which the security
risk certificate relied. Counsel for the Director and for Mr
Zaoui exchanged memoranda relating to the procedure which
they considered the Inspector-General should follow in
undertaking this wholly unprecedented review of a security
risk certificate. On 6 October 2003 the Inspector-General,
who was then the Honourable Laurence Greig and since 8 June
2004 has been the Honourable Paul Neazor, issued what has
been termed an interlocutory decision indicating he had
decided, amongst other things, that the Director did not
have to provide Mr Zaoui with a summary of the classified
security information and, further, that general issues of
international jurisprudence were “beside the point”.
[13]
Mr Zaoui’s response to the Director’s indication of how he
would conduct the review was an application to the High
Court for judicial review. Whilst I think it is questionable
whether the so-called “interlocutory decision” is, per se, a
statutory decision in terms of the Judicature Amendment Act
1972, it nevertheless evidences a proposed exercise by the
Inspector-General of his own statutory power of review.
Therefore, it is envisaged by s 4(1) of the Judicature
Amendment Act and unless judicial review is legally
precluded, as counsel for the Attorney-General contends,
this Court may appropriately examine and pass upon the
issues raised in this appeal.
[14] In the High Court
Williams J held that the Director must provide Mr Zaoui with
a summary of the allegations against him, provided that
information does not breach the definition of “classified
security information” which “cannot be divulged”. He said
that the right of a person charged – or subject to a
certificate, to know at least the outline of the allegations
and the basis on which they are made, was a fundamental
tenet 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”.
[15]
Neither the Crown nor Mr Zaoui have appealed against that
part of the judgment of Williams J. This appeal has been
brought by the Crown to determine whether the
Inspector-General is amenable to judicial review at all in
relation to his duties and powers in respect of a review of
a security risk certificate. The Attorney- General submits,
by counsel, that judicial review is precluded, as a matter
of inference from the statutory scheme and because of the
constraints on review specified in s 19(9) I-G Act and
imported by s 114I(6)(b) Immigration Act. The submission, if
correct, would prevent the Court from reviewing the
Inspector- General even for error of law.
[16] The bold
submission that the High Court’s supervisory jurisdiction in
respect of the exercise of any statutory power, on the
grounds of error of law, can be excluded at all, let alone
by inference, is essentially untenable. Even before the
affirmation of rights by s 27(2) BORA the Courts were
vigilant to protect their responsibility to determine what
the law is and to ensure that decision-makers acted lawfully
and stayed within the limits of the powers entrusted to them
by Parliament. That the High Court must regard as impliedly
excluded its supervision in respect of any statutory power,
to ensure its lawful exercise, let alone a power as relevant
to personal liberty as the Inspector-General’s power of
review, is a proposition I refuse to accept. As to s19(9)
I-G Act, this does not preclude review for lack of
jurisdiction, which the Courts interpret as including any
material error of law.
[17] Counsel for the
Attorney-General further submitted that even if the Court
had jurisdiction to review, the present intervention was
premature because the Inspector- General may ultimately
decide that the certificate was not properly made and, in
any event, there is a right of appeal from the decision of
the Inspector-General, on point of law, pursuant to s
114P.
[18] A particular submission for the
Attorney-General, albeit not annexed to a ground of appeal,
is that the function of the Inspector-General was to
consider whether there were reasonable grounds for the
Director to be satisfied that the information is classified
security information and that the relevant security criteria
are met. In my opinion s 114I(4) of the Immigration Act
makes it plain that the Inspector-General is to come to his
own view about the nature, credibility and relevance of
information said to be classified, and to his own view as to
whether a person in question is properly covered by a
relevant security criterion. The Inspector-General’s review
is not in the nature of that type of judicial review which
examines another person’s decision for rationality. It is a
process of independent assessment by the
Inspector-General.
[19] Notwithstanding that right of
appeal, I am satisfied it is apt to review the
Inspector-General’s process en route to an appealable
determination. It is the case that, as a generalisation, the
Courts are diffident about intervening by way of judicial
review before a matter is ripe for an available appeal. But
an exception must be admitted where the whole process en
route to the appealable decision may miscarry, with grave
consequences, unless judicial guidance is obtained. There
are compelling arguments for intervention in this case where
a review by the Inspector-General is entirely unprecedented,
where the subject’s liberty and convention rights are
potentially jeopardised and where the individual must join
issue with one hand tied behind his back by an assertion of
the existence of classified security information.
[20] I
would dismiss the Attorney-General’s appeal.
[21] There is
a cross-appeal on behalf of Mr Zaoui in two respects. The
first relates to a finding by Williams J, as part of his
ultimate reasoning, to the effect that the
Inspector-General’s errors had been contributed to by
suggestions on behalf of Mr Zaoui as to the procedure to be
followed. Mr Zaoui’s counsel are understandably troubled by
what seems a criticism of them and by the implication such a
conclusion may have in relation to costs issues in due
course. But, with respect, that is a matter insufficiently
related to questions of relief in this appeal for the Court
to take issue with the Judge.
[22] The core of the cross
appeal is, and was appropriately dealt with as such in
counsel’s submissions, Williams J’s findings summarised by
the conclusion that: It is for the Inspector-General to
decide what relevance and weight he accords the
international human rights instruments and international
human rights jurisprudence.
[23] The Attorney-General
takes issue with that finding on the grounds that it
envisages the Inspector-General going beyond his prescribed
function and undertaking the responsibility, which is the
Minister’s alone, of deciding, not whether the security risk
certificate was properly made, but whether an expulsion
should occur by relying on it. Mr Zaoui, on the other hand,
takes issue in terms amounting to the proposition that
Williams J’s finding did not go far enough in merely leaving
the possibility, complained of by the Attorney-General, as
an option. In Mr Zaoui’s submission the Inspector-General is
obliged to consider whether there is a country where Mr
Zaoui would be safe from the possibility of torture or
death, and to take account of that in deciding whether to
confirm the certificate. In my opinion, the finding is
wrong, not because it did not go far enough but because
international jurisprudence does not prescribe the
Inspector-General’s function; it colours the meaning or
connotations of the prescription of his function as it
relates to s 114C(6). The Inspector-General is bound by the
correct interpretation of the prescription. The
Attorney-General and Mr Zaoui may aptly take issue with
Williams J’s conclusion, but in each case their reasons are,
in my view, off the point.
[24] In that respect I am
entirely in agreement with the reasons given by Glazebrook J
and with the conclusions she sets out at para [169].
[25]
I have no doubt that the specific reference to the Refugee
Convention in s 114C of the Act and in particular, for
present purposes, subs (6), imports the international
jurisprudence in respect of the Convention. Not only is it
unthinkable that the legislature intended New Zealand’s
State obligations in relation to the Convention to be read
down by implication, the subsection expressly stipulates for
the terms of the Convention itself to inform the issue
whether “there are reasonable grounds for regarding the
person as a danger to the security of New Zealand”. The
legislature obviously intended that the Convention was to be
honoured, not derogated from or ignored. Such honouring
required it to be given effect consistent with international
law. As the international jurisprudence expatiated by
Glazebrook J shows, “danger to the security of New Zealand”
has connotations of substantial threat and harm, a real
connection between the individual and the threat and the
necessity for an appreciable alleviation of the danger to be
effected by deportation. I would allow the cross-appeal on
this issue.
Result
[26] The appeal by the
Attorney-General is dismissed and the cross-appeal by Mr
Zaoui is allowed. There will be declarations on the
cross-appeal in the terms expressed in Glazebrook J’s
conclusions at [169] (c)(d) and (e), and Mr Zaoui will have
costs in the sum of $12,000 together with disbursements
including the reasonable travelling and accommodation
expenses of two counsel. The question of the costs of the
Intervener is reserved. The form of the declarations
is:
(1) Whether there are reasonable grounds
for regarding the person as a danger to the security of New
Zealand must be decided in terms of art 33.2 of the Refugee
Convention. This follows from the explicit reference to the
Refugee Convention in s 114C(6)(a) and requires the
Inspector-General to consider whether there are reasonable
grounds for regarding Mr Zaoui as a danger to the security
of New Zealand in light of New Zealand’s obligations under
that Convention.(2) The security criteria in s 114C(6)(a)
will be met only if there are objectively reasonable grounds
based on credible evidence that Mr Zaoui constitutes a
danger to the security of New Zealand of such seriousness
that it would justify sending a person back to persecution.
The threshold is high and must involve a danger of
substantial threatened harm to the security of New
Zealand.
(3) There must be a real connection between Mr
Zaoui himself and the prospective or current danger to
national security and an appreciable alleviation of that
danger must be capable of being achieved through his
deportation.
************* JUDGMENT OF
GLAZEBROOK J
Table of Contents
[Paragraph Number]
Introduction [27]
Statutory
framework [30]
Background facts [52]
Interlocutory
decision of the then Inspector-General [59]
Decision of
Williams J [69]
Events since Williams J’s judgment
[84]
Availability of judicial review [86]
Williams J’s
decision [86]
Crown submissions on appeal
[90]
Submissions for Mr Zaoui [95]
Discussion
[101]
Relevance of international human rights instruments
[108]
Division of function between the Minister and the
Inspector-General [108]
Relevance of the Refugee
Convention to the review [118]
What does the Refugee
Convention require? [127]
Role of the RSAA
[161]
Conclusion [169]
# # # # #
#Introduction
[27] Mr Zaoui is an Algerian
national who has been recognised as a refugee in New
Zealand. He is the subject of a security risk certificate
issued by the Director of the New Zealand Security
Intelligence Service (SIS). The Inspector-General of
Intelligence and Security, by statute a retired High Court
Judge, is reviewing the issue of that certificate. If it is
confirmed, it could lead to Mr Zaoui’s deportation from New
Zealand.
[28] This appeal concerns the extent of the
review function. The Crown contends that the focus of the
Inspector-General’s review is solely on issues of security.
International human rights instruments and jurisprudence are
not relevant, although they will be taken into account by
the Minister of Immigration when deciding on the appropriate
action to take if the certificate is confirmed. Mr Zaoui
contends that the Inspector-General is required to weigh Mr
Zaoui’s human rights (and in particular his right not to be
exposed to a real risk of death or torture) against the
security interests of New Zealand when deciding whether the
security risk certificate was properly made.
[29] There is
a threshold issue raised by the Crown. It contends that
judicial review cuts across the scheme of the legislation
and that the proper course is for Mr Zaoui to wait for the
Inspector-General’s review to be completed and then, if the
certificate is confirmed, seek leave to appeal to this Court
on a point of law.
Statutory framework
[30] For ease of
reference the main legislative provisions and the relevant
international conventions referred to are set out in
Appendix 1 to this judgment. Where texts and articles are
referred to, the full reference is given only at the first
citation and subsequently by author surname.
[31] The
Immigration Act 1987 (the Act) was amended in 1999 in two
relevant ways. The first, introducing a new Part VIA,
provided a statutory basis for refugee status determination
and related appeals and was designed to clarify the
interface between the Act and the United Nations Convention
Relating to the Status of Refugees 1951 and the Protocol
Relating to the Status of Refugees 1967 (the Refugee
Convention). Before these amendments, New Zealand
implemented its obligations under the Refugee Convention
through administrative and quasi-judicial processes. Under
the Act, every claim to refugee status is determined by a
refugee status officer, an official designated as such by
the Chief Executive of the Department of Labour. There is
then a right of appeal to an independent body, the Refugee
Status Appeal Authority (RSAA). Mr Zaoui was granted refugee
status by the RSAA on 1 August 2003.
[32] Under s 129X
(contained in Part VIA of the Act), there is an absolute
prohibition on the removal or deportation of refugees or
refugee status claimants unless the provisions of art 32.1
or art 33.2 of the Refugee Convention allow the removal or
deportation. Article 32 applies only to refugees (and
probably refugee status claimants) who are lawfully in New
Zealand - see the discussion in Gunnel Stenberg
Non-Expulsion and Non-Refoulement: The Prohibition against
Removal of Refugees with Special Reference to Articles 32
and 33 of the 1951 Convention relating to the Status of
Refugees (IUSTUS FÖRLAG, 1989) at 87-96 and 121–130.
[33]
Mr Zaoui has not been granted a permit to enter New Zealand
even though he is a recognised refugee. The relevant article
therefore appears to be art 33, which provides as
follows:
(1) No Contracting State shall expel
or return (“refouler”) a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would
be threatened on account of his race, religion, nationality,
membership of a particular social group or political
opinion.(2) The benefit of the present provision may not,
however, be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a
final judgment of a particularly serious crime, constitutes
a danger to the community of that
country.
[34] The prohibition on refoulement,
contained in art 33.1 of the Refugee Convention, is
generally thought to be part of customary international law,
the (unwritten) rules of international law binding on all
States, which arise when States follow certain practices
generally and consistently out of a sense of legal
obligation. Thus it would normally be considered to form
part of New Zealand law in any event – see Ian Brownlie
Principles of Public International Law (6ed, Oxford, 2003)
at 6-8 and 41-44. The New Zealand Law Commission A New
Zealand Guide to International Law and its Sources (NZLC
R34, 1996) at 24 makes the same point, although, for a note
of caution, see Treasa Dunworth, “Hidden Anxieties:
Customary International Law in New Zealand” (2004) 2 NZJPIL
at 7. For the question of whether the prohibition on
refoulement is a principle of customary international law
see also Guy Goodwin-Gill, The Refugee in International Law
(2ed, 1996) at 143 and Sir Elihu Lauterpacht QC and Daniel
Bethlehem, “The scope and content of the principle of
non-refoulement: Opinion” in Feller, Türk and Nicholson,
Refugee Protection in International Law : UNHCR’s Global
Consultations on International Protection (Cambridge, 2003)
at para 216. I record here that this volume, to which I
refer extensively in the course of the judgment, consists of
papers and conclusions that were an outcome of the Global
Consultations on International Protection, organised by the
United Nations High Commissioner for Refugees (UNHCR) in
2000-2002 to reinvigorate the international refugee
protection regime. They are a result of a series of expert
roundtables that were held in 2001 as part of the Global
Consultations.
[35] The Executive Committee of the UNHCR,
indeed, in 1982, in General Conclusion on International
Protection No 25 (XXXIII) 1982 at para (b), went so far as
to observe that the principle of non-refoulement was
progressively acquiring the character of a peremptory rule
of international law or jus cogens, the rules of
international law that are accepted and recognised by the
international community of States as a whole as rules from
which no derogation is permissible - see Jean Allain “The
jus cogens Nature of non-refoulement” (2002) 13 Int Jnl
Refugee Law 533 at 534 and 539 and art 53 of the Vienna
Convention on the Law of Treaties. For an explanation of the
role and status of the Executive Committee see
Attorney-General v E (judgment of Thomas J at para [94]) and
Attorney-General v Refugee Council of New Zealand Inc [2003]
2 NZLR 577 (judgment of McGrath J at para [100]).
[36]
Section 129X(1), however, appears wider than the art 33.1
prohibition on refoulement. This is because art 33.1 only
prohibits expulsion or return to a country where the
refugee’s life or freedom would be threatened for a
Convention reason, either directly or indirectly, which is
usually interpreted as covering all situations where the
refugee risks any type of persecution for a Convention
reason – see the commentary on art 33 of Professor Atle
Grahl-Madsen in Commentary on the Refugee Convention,
Articles 2-11, 13-37 (1963; re-published by the Division of
International Protection of the UNHCR, 1997) at para (4) and
also Stenberg at 209 and 217-219 and James C Hathaway The
Law of Refugee Status (Butterworths, 1991) at 6-11. I record
here that Professor Grahl-Madsen’s commentary, which is also
referred to extensively in this judgment, was written during
the eighteen months he spent as a Special Consultant in the
office of the UNHCR. It is considered a seminal study on the
Refugee Convention - see Lauterpacht and Bethlehem at para
125 and the Foreword to the reissue of Professor
Grahl-Madsen’s commentary.
[37] The effect of s 129X(1)
seems to be that deportation or removal from New Zealand,
even to a safe third country, is only allowed in the case of
a refugee or refugee status claimant if art 32.1 or art 33.2
applies, that is, in the latter case, if there are
reasonable grounds for considering the refugee or refugee
status claimant a danger to the security of New Zealand or a
danger to the community, having been convicted of a
particularly serious crime. Article 33.2 is discussed in
more detail later.
[38] In the case of art 32.1, expulsion
of a refugee lawfully in New Zealand can only occur on
grounds of national security or public order. For an
analysis of the requirements of art 32 and the meaning of
national security see Stenberg at 165-170. Stenberg
considers that the term “security of the country” in art
33.2 is a more restrictive one than the term “national
security” in art 32.1, which in itself must be interpreted
restrictively – see 220-221 and see also Geoff Gilbert
“Current Issues in the application of the exclusion clauses”
in Feller, Türk and Nicholson 425, at 457-462. Grahl-Madsen,
however, equates the two terms – at para 8 of the commentary
on art 33.
[39] The second relevant amendment to the Act
was the introduction of special procedures in cases
involving security concerns through a new Part IVA of the
Act. It is this part that is primarily at issue in this
case. In the Explanatory Note to the Immigration Amendment
Bill 1998, it was explained (at i) that one of the principal
objects of the Bill was to “establish a special security
regime to protect sensitive security information that is
relevant to immigration matters.” The more detailed
explanation said (at iii) that such special procedures were
necessary to allow the information to be used without being
disclosed, while protecting the rights of the individual
through a process of independent scrutiny. The relevant
passage is set out in full as follows:
The
immigration decision-making process and fairness generally
require that the individual concerned has access to any
information held about them. This requirement sometimes
stops the New Zealand Security Intelligence Service from
providing classified security information on an immigration
application or decision even though that information may
have a direct bearing on the matter. The Bill therefore
establishes a special security process to allow for such
classified security information to be considered in
immigration decisions without putting the classified nature
of that information at risk, while ensuring that the rights
of the individual are protected through a process of
independent scrutiny.
[40] The Select
Committee report on the Bill recommended that the right of
the person, who is the subject of a security certificate, to
be heard should be referred to expressly in Part IVA, even
though the legislation already allowed for that by inclusion
of provisions from the Inspector-General’s own Act (at
vii).
[41] Section 114A sets out the objects of Part IVA.
It recognises that the public interest requires that
classified security information be able to be used in coming
to decisions under the Act but that nevertheless such
information should be protected from disclosure. Individual
rights are catered for by providing for an independent
person of high judicial standing to consider the classified
security information and “approve its proposed use”. The
section provides that the use of the information should mean
that no further avenues are available to the individual
under the Act and that removal or deportation, as the case
may require, could normally proceed immediately, allowing
for the effective and quick removal of those posing a
security risk.
[42] Classified security information is
defined under s 114B(1) as information about the threat to
security, public order or public interest posed by an
identifiable individual which is held by the SIS and which,
in the opinion of the Director, cannot be divulged to the
individual in question or to other persons because two
criteria are met, as set out in paras (a) and (b) of the
definition. Para (a) of the definition covers three
situations: where the information might lead to disclosure
of information, assistance or operational methods available
to the SIS, where it is information about particular
operations that have been undertaken by the SIS and where it
has been provided to the SIS by the Government of any
country or an agency of such a Government and the agency or
Government does not consent to its disclosure.
[43] Para
(b) covers four situations: where the disclosure of the
information would be likely to prejudice the security or
defence of New Zealand or the international relations of the
Government of New Zealand, where it would prejudice the
entrusting of information to the Government of New Zealand
by any other Government or agency of such Government or by
an international organisation, where it would prejudice the
maintenance of the law, including the prevention,
investigation and detection of offences and the right to a
fair trial, and finally where it would endanger the safety
of any person.
[44] Under s 114D, the Director of Security
can provide a Security Risk Certificate to the Minister of
Immigration where he or she holds classified security
information that the Director is satisfied –
a) Relates to an identifiable individual who is not a New
Zealand citizen and is a person about whom decisions are to
be, or can be, made under this Act; andb) Is credible,
having regard to the source or sources of the information
and its nature, and is relevant to the relevant security
criterion; and
c) Would mean, when applying a relevant
security criterion to the situation of that person in light
of that information, that the person meets the
criterion.
[45] Section 114C sets out the
relevant security criteria. Where a refugee or refugee
status claimant is concerned at least one of the security
criterion set out in s 114C(3) or (4) must be met, together
with one or more of those set out in s 114C(5) and (6). The
criteria relied on by the Director with regard to Mr Zaoui
are that he constitutes a threat to national security in
terms of s 72 of the Act (s 114C(4)(a)) and that there are
reasonable grounds for regarding him as a danger to the
security of New Zealand in terms of art 33.2 of the Refugee
Convention - see s 114C(6)(a) of the Act. There is no
reliance on s 73 of the Act dealing with suspected
terrorists – see s 114C(4)(b). Nor is there an allegation
that Mr Zaoui is a danger to the community of New Zealand,
having been convicted by a final judgment of a particularly
serious crime in terms of s 114C(6)(b) of the Act.
[46]
Under s 114G(1), the Minister is empowered to make a
preliminary decision to rely on a security risk certificate
and then must give a notice to that effect to the chief
executive of the Department of Labour. All immigration
processes, apart from refugee status determination
proceedings, then immediately cease. The individual must be
served with a copy of the notice and information relating to
the security risk certificate and be notified of the right
to apply for review of that certificate. Section 114Q
provides that no person who is a refugee status claimant may
be removed or deported from New Zealand until the refugee
status of that person has been finally determined under Part
VIA of the Act. Where the Minister does rely on a security
risk certificate he or she is not obliged to give reasons
for any decisions made in reliance on the certificate – see
s 114F(2)(a). There is also no express obligation on the
Director to give reasons for providing a security
certificate, beyond identifying the relevant security
criteria – see s 114D(2). The Director may be called by the
Minister to give an oral briefing on the contents of the
certificate but the content of the oral briefing is to be
determined by the Director and may not be recorded or
divulged by the Minister (s 114E).
[47] The procedure for
the review of a security risk certificate is set out in s
114I. It is undertaken by the Inspector-General of
Intelligence and Security, who must by statute be a retired
High Court Judge. Under s 114I(4) of the Act, the function
of the Inspector-General on a review is set out as being to
determine whether:
a) The information that
led to the making of the certificate included information
that was properly regarded as classified security
information; andb) That information is credible, having
regard to the source or sources of the information and its
nature, and is relevant to any security criterion; and
c)
When a relevant security criterion is applied to the person
in light of that information, the person in question is
properly covered by the criterion – and thus whether the
certificate was properly made or not.
[48] In
conducting the review, the Inspector-General may, under s
114I(5), take into account any relevant information,
including information that is not classified security
information. He or she has all the powers conferred on him
or her by the Inspector-General of Intelligence and Security
Act 1996 (I-G Act) and the procedural provisions of that
Act, with certain exceptions and with any necessary
modifications, apply to the review – see s 114I(6). I note
in particular that s 19(5) allows the Inspector-General to
receive any evidence as he or she thinks fit, whether
admissible in a Court of law or not and that s 19(8) of the
I-G Act allows the Inspector-General to regulate his or her
procedure in such a manner as he or she thinks fit, subject
to the provisions of the I-G Act. I also note the powers in
s 23 to require the production of documents and to summon
and examine on oath any person the Inspector-General
considers has relevant information.
[49] Under s 114H, a
person who seeks a review under s 114I may be represented,
whether by counsel or otherwise, in his or her dealings with
the Inspector-General, must be given access, to the extent
provided by the Privacy Act 1993, to any information about
him or her other than the classified security information
and may make written submissions to the Inspector-General
about the matter, whether or not he or she also wishes to be
heard pursuant to s 19(4) of the I-G Act. Section 19(4)
provides:
19 Proceedings of
Inspector-General
(4) The Inspector-General
shall permit the complainant to be heard, and to be
represented by counsel or any other person, and to have
other persons testify to the complainant's record,
reliability, and character.
[50] The decision
of the Inspector-General as to whether the certificate is
properly made or not must be accompanied by reasons, except
to the extent that the giving of reasons would be likely to
prejudice the interests that Part IVA seeks to protect in
relation to the classified security information – see s
114J(4). Under s 114P the person can, by leave of this
Court, appeal on a point of law against the Inspector-
General’s decision.
[51] If the security risk certificate
is held not to have been properly made, then s 114J(2)
requires that the person must be released from custody
immediately and the normal immigration procedures will then
recommence. If the certificate is confirmed, however, the
Minister is required under s 114K(1) to make a final
decision within three working days whether to rely on the
confirmed certificate and therefore to set in motion the
deportation or removal procedures – see s 114K(4)(b). This
applies unless the person is protected from removal or
deportation by s 114Q or s 129X – see s 114K(4)(c). The
Minister is not obliged to give any reasons for the decision
– see s 114K(7). Section 114K(6) provides that, where s 114K
applies, the person who is the subject of the certificate
has no further right of appeal or review under the Act. The
Minister does, however, have the power under s 114N to
revoke a decision to rely on the certificate or, where a
certificate has been confirmed by the Inspector-General, to
decide nevertheless that the relevant security criterion
should not be applied to the person.
Background
facts
[52] Mr Zaoui arrived in New Zealand on 4 December
2002 via Vietnam and the Republic of Korea (the latter
transit only) and sought refugee status. His application was
declined by the refugee status branch of the Immigration
Service on 30 January 2003 but, as noted above, granted by
the RSAA on 1 August 2003.
[53] On 20 March 2003, the
Director issued a security risk certificate to the Minister.
In a memorandum dated 16 September 2003 counsel for the
Director of Security indicated that the security risk
certificate relied on para (c) of the definition of
“security” in s 2(1) of the New Zealand Security
Intelligence Service Act
(SIS Act) relating to the
protection of New Zealand from activities within or related
to New Zealand that:
(i) Are influenced by any
foreign organisation or any foreign person; and(ii) Are
clandestine or deceptive, or threaten the safety of any
persons; and
(iii) Impact adversely on New Zealand’s
international well-being or economic
well-being.
[54] In a subsequent memorandum
of 7 October 2003, the Director clarified the position by
confirming that he did not rely on any adverse impacts on
New Zealand’s economic well-being. More significantly, I
observe that the Director did not rely on paras (a) or (d)
of the definition of security in the SIS Act, meaning
presumably that he had no apprehension that Mr Zaoui was or
would be involved in espionage or terrorism. This is
confirmed by the fact that s 73 of the Act is not relied
upon as being a relevant security criterion.
[55] In the
memorandum of 16 September the Director also provided the
following summary of grounds for the security risk
certificate:
3.1 Mr Zaoui’s Belgium and French
criminal convictions;3.2 the repeated decisions of the
Belgium tribunals/courts to decline Mr Zaoui refugee
status;
3.3 the decision of the Swiss Executive to expel
Mr Zaoui from Switzerland;
3.4 classified security
information providing background to those decisions;
3.5
classified security information relating to the period after
Mr Zaoui left Switzerland;
3.6 classified security
information being reports on materials in Mr Zaoui’s
possession on arrival and interviews conducted with him in
New Zealand;
3.7 classified security information being an
evaluation of the above material (in paragraphs 3.1 to 3.6
above).
[56] The Director has confirmed in
his affidavit of 12 November 2003 at paras 25 and 26 that
the SIS concerns about Mr Zaoui do not relate to his
activities in Algeria and that the SIS has had no contact
with the Algerian authorities about Mr Zaoui. The SIS has
only been concerned with Mr Zaoui’s activities since he has
left Algeria.
[57] The Minister made a preliminary
decision to rely on the Director’s certificate on 23 March
2003 and issued a notice to that effect. Mr Zaoui received
that notice on 27 March 2003 and immediately applied to the
Inspector-General for a review in terms of s 114I of the
Act.
[58] As this is the first time that a security risk
certificate has been issued under Part IVA of the Act and
consequently the first review by the then Inspector-General,
there were various memoranda filed by counsel for Mr Zaoui
and by counsel for the Director on the procedure that should
be followed in the review. This led to the then
Inspector-General, the Honourable Laurence Greig, issuing an
interlocutory decision on 6 October 2003 and it is certain
aspects of that decision that are the subject of this
appeal. On 8 June 2004 the Honourable Paul Neazor became the
new Inspector- General.
Interlocutory decision of the then
Inspector-General
[59] There are two main aspects of the
interlocutory decision of the Honourable Laurence Greig, the
then Inspector-General, that were the subject of review
proceedings in the High Court.
[60] The first issue was
whether the Director is required to provide a summary of the
classified security information to Mr Zaoui. The
Inspector-General said that he was not – see para 35 of his
decision quoted at para [65] below. Williams J held that he
was and the Crown has not appealed against that ruling. The
other aspect of the interlocutory decision, which is the
subject of the Crown appeal and Mr Zaoui’s cross-appeal, is
the extent, if any, to which the Inspector-General is
required to have regard to international human rights
instruments and standards.
[61] On the latter topic, the
Inspector-General rejected Mr Zaoui’s submission that the
cases of Suresh v Canada (Minister of Citizenship &
Immigration) [2002] 1 SCR 3 and Secretary of State for the
Home Department v Rehman [2003] 1 AC 153 should be taken
into account. In the Inspector-General’s view, those cases
are not relevant as they were concerned with deportation
while, in this case, the deportation decision is for the
Minister. The focus of the Director, and thus the
Inspector-General’s role, is, in his view, limited to the
question of whether there are reasonable grounds for
regarding Mr Zaoui as posing a security danger to New
Zealand. He said:
[18]…The decision at this
stage is the propriety of the security certificate. The
credibility of the information and its appropriate
classification and its application to the person in
question. Of course deportation or removal is the underlying
result and reason for the certificate but the decision on
that is for the Minister. The Director’s decision and
consideration is focused on the security questions, the
threat or danger to security of New Zealand. The
IGIS[Inspector-General] is equally limited to that focus.
This is even clearer in a case like the present when the
applicant has been declared to have a refugee status which
at once imposes on the Minister the considerations of the
various international conventions as to refoulement and its
limitations.
[62] Later, he reiterated his
view that general issues of international human rights law
were not relevant to his review. He said:
[28]
As I have already indicated my view is that the general
issues of international jurisprudence are beside the point.
My review is as to the propriety of the certificate by an
examination of the credibility of the relevant classified
information and its application to the appropriate criterion
as relevant to the applicant. The deportation issue is for
the Minister. I am bound to protect the security matters and
thus debar the applicant from being aware of
them.
[63] The Inspector-General accepted
that the matter involved a serious question with possible
grave consequences to Mr Zaoui and thus that it required a
careful scrutiny of the material that was before the
Director and all the material put forward by Mr Zaoui. He
continued:
[19]…That scrutiny is not limited
to the date of the certificate. It must follow from the use
of the present tense in reference to the credibility of the
material and its application to the Applicant that a review
must take into account at least information that the
applicant may bring forward. Indeed the fact that he is
given the opportunity to be heard and call evidence in his
support reinforces that continuing scrutiny. It would be
vain if the opportunity to give evidence had both
[presumably the Inspector-General instead meant ‘no’] real
meaning or effect on the review performance.[20] Moreover
the Director has a continuing obligation to keep under
consideration his certificate since he has the right or duty
to withdraw it. And the IGIS as well as the Director has the
right to take into account evidence or information that
would not be admissible in Court.
[64] He
said, however, that the classified security information
could not be provided to Mr Zaoui and that this was an area
where the ordinary rights of fairness did not
apply:
[21] That said what is classified
information as defined which was taken into account cannot
be disclosed to the applicant or any body. The
IGIS[Inspector-General] is entitled to receive it and to
question the Director and has officers as to its credibility
and application to the applicant but this is an area where
the Bill of Right [sic] BORA and the ordinary right of
fairness do not apply. The reason as recognised in this
legislation by the objects and the procedure under the IGIS
Act is that disclosure would jeopardise the operations of
the intelligence service and the security of New Zealand as
a whole.
[22] The classified information as defined and as
recognised and acknowledged by the IGIS will not be
disclosed to the applicant or his Counsel. They will not
have any opportunity to make representations about it. The
IGIS will review it and giving it consideration will weigh
it with the other information which is known to the
applicant and which he furnishes to the
IGIS.
[65] The Inspector-General said that he
had completed the examination of the classified security
information relied upon and was satisfied that it was
appropriately claimed as classified, although his decision
as to whether it was credible would wait until he had heard
from Mr Zaoui. He said that no further details of that
classified security information would be disclosed to Mr
Zaoui. He also said that he was satisfied that the Director
had been correct to adopt the definition of security in the
SIS Act:
[32] I have examined the files of the
Director and have considered and perused the documents and
other information that the director has relied upon in
making his certificate. I have interviewed him and inquired
from him the status of the information as to its
classification his reliance on it and the reasoning he
adopted in reaching his view that there was a threat to and
a danger to security. It may be noted that as
Inspector-General since 1996 I have had occasion to consider
the classification of information and the principles of
security and the meaning that this term has for the
intelligence agencies and for New Zealand as a whole. I
accept that the Director was correct to adopt the definition
of security in the NZ Security Intelligence Service Act
1969.[35] I am satisfied that the information that led to
the making of the certificate included information which is
properly regarded as classified security information as
defined in the Act. The nature of that information cannot
and will not be disclosed to the applicant or his advisors.
Nor is it appropriate to divulge any other information about
that classified material.
[66] The
Inspector-General also made some remarks as to the relevance
of the decision of the RSAA granting Mr Zaoui refugee status
as follows:
[23] The information and evidence
which the IGIS will take into account includes the decision
of the RSAA. The actual decision as to the refugee status
and the application of Article 1F is I believe binding on
me. That is to say I accept that Mr Zaoui has the status of
a refugee and that he is not a person to whom the Convention
does not apply because the application of Article 1F. I am
entitled to take into account and accept as evidence the
findings of the RSAA which are part of the decision as to
the status and the application of Article 1F. I am entitled
to take into account other findings of the RSAA which might
be described as obiter dicta but which it has given
consideration after weighing the evidence before it. All
this is subject to the caveat that the weight of that
information as evidence is subject to the fact that the RSAA
did not have either classified information before it and
that it was not and did not have jurisdiction to considered
[sic] and pronounce on the matters of threats or dangers to
the security of the [sic] NZ: that is to say the application
of Articles 32 and 33 of the Convention.[24] The reasons
for the admission of the findings of the RSAA in my review
include the fact that the review is made under the same Act
and as part of the one amending act. The RSAA unlike any
other authority is to continue its consideration when all
other authorities and proceedings are to stop when a
security certificate is given. That must give some
precedence and special weight to the deliberations and
findings of the RSAA. In any case its actual finding as to
status is not subject to appeal and is the final word on
that particular matter. I have read the RSAA decision and
observe that it is a careful and thorough review and
consideration of the material before it. It may be noted
however that the material was not subject to any
cross-examination or rebuttal. Indeed that is it seems the
likely course of the hearing before me as to the evidence
and submissions to be made by and on behalf of the
applicant.
[67] The then Inspector-General’s
view that there would probably be no cross-examination of
any of the witnesses called on Mr Zaoui’s behalf was the
subject of comment by Williams J in the High Court. He
said:
[94] …In essence, if the review proceeds
as currently proposed, it seems the Inspector-General will
have two bodies of information, each prepared without
reference to or in ignorance of the contents of the other,
unable to be measured or challenged by the other, and he is
required on that material to determine whether the
Certificate against Mr Zaoui was properly
made.
[68] It is obviously for the
Inspector-General to regulate his own procedure but I would
not have thought that there was anything in the statutory
scheme that would have ruled out cross-examination if the
Inspector-General considered this the best way to test the
evidence and was fair in all the circumstances (including
the fact that Mr Zaoui has no access to the classified
security information itself and therefore that any
reciprocal cross-examination of the Director and other
witnesses would necessarily be limited).
Decision of
Williams J
[69] Mr Zaoui filed judicial review proceedings
in the High Court challenging aspects of the interlocutory
decision. The High Court judgment of Williams J is reported
as Zaoui v Attorney-General [2004] 2 NZLR 339. As a
preliminary point Williams J rejected the Crown’s submission
that the Court had no jurisdiction to review the
Inspector-General’s interlocutory decision. I examine this
aspect of his decision in more detail below.
[70] On the
first issue for the review, Williams J held that the
Director should have been required to provide Mr Zaoui with
a summary of the classified security information and as much
information on the reasons the security risk certificate was
issued as could be released without revealing the classified
security information itself. He said:
[91]
And, while the Inspector-General’s function in reviewing
whether the Certificate was “properly made or not” is not an
adversarial one in the traditional partisan sense, in
evaluating the “classified security information” and its
credibility and evaluating whether a “relevant security
criterion” properly relates to Mr Zaoui, then, as fairness
requires, up to the limit of the statutory bar on divulgment
in s114B, he must be entitled to know what that “classified
security information” is, why the Director regarded it as
credible, why it was thought relevant to a security
criterion, and what underlay the Director’s conclusion that
he was properly covered by a “relevant security criterion”,
that is to say why the Director concluded he constituted a
threat to national security or a danger to the security of
New Zealand in terms of Article 32.2 of the Refugee
Convention. [Presumably the Judge meant art 33.2]….[106]
…However, that “classified security information can be
bowdlerised so as still to comply with the definition of
“classified security information” that “cannot be divulged”
but is still informative as the basis for the Certificate.
That would appear to be indicated if not required by the
“fairness” and “equally” requirements of s114A(c). Evidence
suggested overseas jurisdictions achieve that objective in
their summaries of “classified security
information”.
[107] As far as it relates to Mr Zaoui the
definition of “relevant security criteria” in s114C(4)(6)
and the strong terms of s114F make clear that whether a
Certificate has been properly issued in the sense of
complying with an appropriate security criterion and the
effect of the issue of such a Certificate is a serious
matter for the individual named. The gravity of those
matters may be taken as indicating that, to the extent
permissible, Mr Zaoui should know what is raised against him
in order to try to rebut it by material he is entitled to
put before the Inspector-General and thus ensure the rigour
of the process of deciding whether the Certificate was
properly made. That is also supported by Mr Zaoui’s
entitlement to information and the other significant rights
in s114H(2)….
[110] Therefore, seeing s114I in the context
of Part IVA particularly s114A, there is nothing to prevent
Mr Zaoui receiving an appropriately worded summary of
“classified security information” which affects him but
which complies with the statutory prohibitions on
disclosure, and nothing to say that natural justice has no
application to him. Indeed, for the reasons discussed, the
legislative indicia favour him, particularly in relation to
the summary….
[172] Therefore, all of the matters
discussed in this judgment lead to the conclusion that
:
(a) s114I in combination s19 of the Inspector-General’s
Act do not debar:
(i) 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.
(ii) the right of a person charged – 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”.
[71] Although these
findings of Williams J were not the subject of this appeal,
the Crown, in its submissions, said that the Director did
not accept that he must supply a “bowdlerised” version of
the classified security information, as that would
compromise the security interests, which Part IVA seeks to
protect. If the Crown took issue with that aspect of
Williams J’s ruling, then that should also have been the
subject of appeal. It may be, however, that all that the
Crown meant by its submission was that no information or
summary can be provided to the extent that that would
disclose the classified security information. If that was
the submission, then it is undoubtedly correct.
[72]
Having said that, as Williams J recognised, what Part IVA
protects from disclosure is the classified security
information itself. Given the major consequences that the
confirmation of a security risk certificate can have for an
individual, it is incumbent upon the Director to provide as
much information as is possible, without risking the
disclosure of the classified security information itself, as
to why the Director considers that the criteria set out in
paras (a) and (b) in the definition of classified security
information are met, as to the content of the classified
security information and why it is considered to be credible
and as to why the Director considers that the relevant
security criteria are met. This is to enable the person to
provide evidence and submissions to the Inspector-General on
the review with the benefit of as much information as
possible. This necessarily means that if, after his review
of the material, the Inspector-General is of the opinion
that a fuller summary should have been provided, then he
must ensure that this is done.
[73] I also note that what
is absolutely protected from disclosure is classified
security information and not documents containing classified
security information. It may thus be that, in some cases,
what should be released is the document with the passages of
classified security information deleted. This is a familiar
process for the courts with interception warrants – see the
discussion in Garrow and Turkington's Criminal Law in New
Zealand at s 312H.1.
[74] It is trite, too, that, for
information to be classified security information, it must
satisfy both para (a) and para (b) of the definition. For
example, it is not enough that the information might lead to
identification of the operational methods available to the
SIS, it must also prejudice the security or international
relations of New Zealand or meet one of the other criteria
in para (b) of the definition. It is not enough that a
foreign Government or agency refuses consent to disclosure.
Disclosure must also prejudice the entrusting of information
to the Government of New Zealand or meet one of the other
criteria in para (b). In that regard, absent evidence to the
contrary, it would have to be assumed that the foreign
Governments or agencies were acting reasonably. Therefore,
if the information is of a type, for example, that those
Governments or agencies would be required to disclose to Mr
Zaoui in a similar judicial or quasi-judicial process in
their own jurisdiction, then one would not have thought that
disclosure in similar circumstances here would prejudice
future information flows. The same applies if the
information is classified only because of its immediate
source rather than because of its content, as is suggested
may often be the case in the affidavit of Mr Buchanan, sworn
30 October 2003 at para 15.
[75] The Inspector-General, in
his interlocutory decision at [20] set out above at
[63],
suggested that the Director has a continuing obligation to
keep his certificate under consideration. Without expressing
any view on whether the Inspector-General is correct, I
would comment that, if further classified security
information came into the Director’s hands and that
information was provided to the Inspector-General, the
Director would then be under a similar obligation with
regard to that further information to provide a summary. I
also comment that, even if such information was not to be
passed to the Inspector-General, I would have thought a
summary should still be provided if the further information
could be used in giving advice to the Minister in the event
that the security risk certificate was confirmed.
[76] I
now move to an aspect of Williams J’s decision that has
caused concern to Mr Zaoui’s counsel and which purported to
form part of the cross-appeal. Williams J considered that
the procedure for the review that had been suggested by Mr
Zaoui’s counsel had been causative of the
Inspector-General’s errors in his interlocutory decision.
The procedure suggested by counsel for Mr Zaoui had the
decision on whether the information was classified security
information being made before hearing from Mr Zaoui.
Williams J held that the Inspector-General is obliged to
consider all information before coming to his decision on
whether the certificate was properly made or not, including
on whether the information was classified security
information. While this is undoubtedly correct, it is
understandable that Mr Zaoui’s counsel wants the decision on
whether the information was properly classified to be made
(at least in a preliminary fashion) before all of Mr Zaoui’s
evidence is presented. This is because, if the decision of
the Inspector-General is that the information is not
classified security information, then it will be disclosed
to Mr Zaoui. Mr Zaoui will then be able to direct his
further evidence and submissions to that released
information. The Inspector-General, in making his
preliminary determination as to whether the information was
properly regarded as classified security information, will
of course have to consider any material put forward on
behalf of Mr Zaoui on that subject. He will also be able to
revise the decision if later evidence shows his preliminary
assessment is erroneous.
[77] This brings me to another
point, which is not the subject of appeal but on which the
Crown again made submissions. The Crown submitted that the
Inspector- General’s function on review is to consider
whether or not there were reasonable grounds for the
Director to be satisfied that the information is classified
security information and that the relevant security criteria
are met. If there were grounds upon which a reasonable
Director would be satisfied that a criterion was met, the
Crown’s submission is that the Inspector-General may not
substitute his own assessment for that of the Director’s.
This was not Williams J’s view of the matter – see [86] –
[90] of his decision.
[78] Lest silence be taken as
acceptance of the Crown submission, I express the view that
Williams J was correct and that the Crown contention must
fail. Under s 114I(4)(a), the function of the
Inspector-General is to determine whether the information
was “properly” regarded as classified security information.
It does not say that his function is to determine if it was
“reasonably” so regarded. Equally, under s 114I(4)(b), the
Inspector-General must determine whether the information is
credible. Again it does not say the Inspector-General must
determine whether it could be “reasonably” regarded as
credible and the Crown did not in fact suggest that this
could be a possible interpretation of this paragraph.
Finally, in s 114I(4)(c), the term “properly” is again used
in relation to whether the relevant security criteria are
met. The overall test is whether the certificate was
“properly” made or not. Again, the term “reasonably” is not
used.
[79] This means that, if the Inspector-General comes
to a different view from the Director, he is obliged to
substitute his view for that of the Director. Even if the
word “reasonably” had been used, it is by no means clear
that this would have meant that the Crown submission would
have succeeded. That the Inspector-General’s review is a
substantive review is appropriate, given that a confirmed
certificate can lead to very serious consequences for an
individual and that the individual in question has no access
to the classified security information. This of course does
not stop the Inspector-General treating, if he considers it
appropriate, the Director’s views with a degree of deference
in recognition of the Director’s security expertise. This
may apply particularly to the question of whether
information is properly classified, especially as the
definition in the Act refers specifically to the opinion of
the Director on that issue.
[80] It is significant too
that, under s 114I(5), the Inspector-General may take into
account any relevant information that does not itself meet
the definition of classified security information. The
Inspector-General is thus not restricted to the information
taken into account by the Director. More importantly, the
Inspector-General must also consider any relevant material
provided by Mr Zaoui. This is information not available to
the Director at the time of issuing the certificate, which
by its nature will usually be issued on an ex parte basis.
If there were no ability for the Inspector- General to
substitute his own view for the Director’s, Mr Zaoui’s right
to be heard would be rendered nugatory. That right, in
itself, requires the Inspector-General’s role to be wider
than that contended for by the Crown. The obligation on the
Inspector-General to give reasons in s 114J(4) and the right
of appeal on points of law from the Inspector-General’s
decision in s 114P also support this view.
[81] I now
arrive at the part of Williams J’s decision that is the main
subject of the Crown appeal and Mr Zaoui’s cross-appeal.
Williams J held that the Refugee Convention and other
international human rights instruments were only
peripherally relevant to the decision that the
Inspector-General has to make. They were no doubt of clear
relevance to the Minister’s decision as to whether to deport
Mr Zaoui or not, if the security risk certificate were
upheld, but that was not the issue before the Court. The
possible consequences to Mr Zaoui did mean, however, that
the Inspector-General should subject the relevant security
criteria to rigorous examination. Williams J said
:
[114] There can be no dispute that to the
extent mandated by the statutory provisions, Mr Zaoui’s
position should be assessed conformably with the Refugee
Convention. The difficulty he faces is the extent to which
the statute, Part IVA in particular and s114I especially,
limit the applicability of those instruments. The decision
must be that though they inform construction of Mr Zaoui’s
rights and in particular the right not to be deported or
refouled unless the Refugee Convention permits because he is
protected from deportation under s129X, so far as Mr Zaoui
is concerned, Part IVA and, in particular, s114I focus on a
consideration as to whether the Certificate relating to Mr
Zaoui was “properly” made in light of the information on
which it was based and the material Mr Zaoui is entitled to
place before the Inspector-General. The Refugee Convention
is relevant but only of secondary relevance in those
respects. The balance of the Act is of little assistance in
this case as it deals with a number of distinct matters.
…[139] Further protection for Mr Zaoui if his deportation
is to be considered is the fact that “expulsion measures
against a refugee should only be taken in very exceptional
cases and after due consideration of all the
circumstances”
(UNHCR Executive Committee Conclusion No 7
1977 “Expulsion”), a stance strongly supported by leading
texts in the area. They include Goodwin-Gill (The Refugee in
International Law, 2nd ed 1996, p143) which says “the
principle of non-refoulement has crystallized into a rule of
customary international law, the core element of which is
the prohibition of return in any manner whatsoever of
refugees to countries where they may face persecution”
(emphasis in original) and Lauterpacht and Bethlehem
(“The
Scope and Content of the Principle of Non-refoulement” in
Feller Tűrk and Nicholson, “Refugee Protection in
International Law” para 132, p125) who say “there is now an
absolute prohibition on refoulement where there is a real
risk that the person concerned may be subjected to torture
or cruel, inhuman or degrading treatment or punishment” (see
also paras 52, 53, p107 and their summary, para 144
p127-128). …
[141] Those arguments are persuasive but this
judicial review does not involve deportation. Such will only
arise if the Certificate is confirmed, any appeal is
dismissed and the Minister decides after taking the
international human rights instruments and all other
material into account, that Mr Zaoui should be deported
because s129X does not protect him and Articles 32.1 and
33.2 permit his deportation. All that can be said at this
stage is that all the matters discussed indicate that in
deciding whether the Certificate was “properly made or not”
the Inspector-General may consider it appropriate to subject
the “relevant security criterion” aspect of his
consideration to rigorous examination.
[82]
Despite the finding that the decision of the
Inspector-General was limited to deciding whether the
certificate was properly made or not, Williams J held that
the Inspector-General should have regard to international
human rights instruments but the relevance and weight he
accorded them was a matter for him. He
said:
[172] Therefore, all of the matters
discussed in this judgment lead to the conclusion that
:a) s114I in combination with s19 of the
Inspector-General’s Act do not debar: …
(iii) Apart from
the limitation that evidence called by Mr Zaoui – as opposed
to evidence given by him – 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.
(iv) 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.
[83] As an aside, I would comment
that I would not see Mr Zaoui limited in the evidence he can
call from other parties to evidence concerning his “record,
reliability and character”. Given the importance of the
decision that the Inspector-General must make and the
serious consequences for Mr Zaoui, it is vital that the
Inspector- General make his decision based on all relevant
evidence. Section 19(4) of the I-G Act would, therefore, be
modified accordingly (see s 114I(6)(b) of the Act), a
necessary modification to ensure that all relevant evidence
is before the Inspector- General. This is not to suggest
that all such evidence should necessarily be presented
orally. In this regard, however, I note the powers of the
Inspector-General, as set out in s 23(1) and (2) of the I-G
Act, to require the production of documents and to summon
and examine witnesses.
Events since Williams J’s
judgment
[84] As indicated above, after Williams J’s
judgment and, as a consequence of the decision of the High
Court in Zaoui v Greig HC AK CIV-2004-404-000317, 31 March
2004 the then Inspector-General, the Honourable Laurence
Greig, resigned. The new Inspector-General will of course
not be bound by the previous Inspector-General’s work,
including the interlocutory judgment. Indeed, the new
Inspector-General will have to recommence the review
process. Despite this, it would be unsatisfactory if the new
Inspector-General was left in a state of uncertainty as to
whether or not the interlocutory decision of his predecessor
was correct in law. I consider, therefore, that this appeal
still has utility and neither of the parties sought to argue
otherwise (subject obviously to the Crown’s preliminary
point relating to the unavailability of judicial
review).
[85] I also observe that the Director, after
Williams J’s decision, supplied Mr Zaoui with a document,
dated 27 January 2004 and entitled “Summary of Allegations
and Reasoning of the Director of Security in Making a
Security Risk Certificate about Mr Ahmed Zaoui”. In that
document, the Director refers to a video that Mr Zaoui had
made during his journey overland from Malaysia via Thailand
and Laos to Vietnam and to a point of security concern
relating to the veracity of an answer Mr Zaoui gave in an
interview with an Arabic-speaking SIS officer (although the
question this related to was not disclosed). It also refers
again to the Belgian and French convictions and the
expulsion from Switzerland and classified security
information relating to those issues. Finally, the Director
gives a summary of the reasons for considering Mr Zaoui a
security concern in terms of the limbs of the definition of
security relied on by the Director. The document
says:
His reasoning is as follows, in the
form of comment on each section of the definition. It is
based both on the publicly known security-related European
decisions and convictions and related unclassified
information and on classified security information which
cannot be divulged.“The protection of New
Zealand from activities within or relating to New Zealand
that-”
It is reasonable to suspect that if permitted to
settle in New Zealand Mr Zaoui would in due course
undertake, facilitate, promote or encourage activities like
those of which he was convicted in Belgium and France and/or
which the Swiss government decided endangered Switzerland’s
domestic and external security. His presence here would
attract, both directly (people who wish to work with him)
and indirectly (people encouraged to believe that New
Zealand is a safe haven for people with his sort of record),
other people likely to engage in activities of security
concern.
“Are influenced by any foreign
organisation or any foreign person; and”
Mr Zaoui is a
foreign person. He has a long record of involvement with
foreign persons and foreign organisations, including
leadership. There is good reason to believe that any future
activities he may undertake will be influenced by other
foreign persons and/or by foreign
organisations.
“Are clandestine or
deceptive, or threaten the safety of any person; and”
The
activities of which he was convicted in Belgium and France
were clandestine or deceptive or threatened the safety of
persons. The Swiss government believed that his activity in
Switzerland “may lead to acts of violence, and even attacks,
in Switzerland”. Activities of this kind in New Zealand, by
Mr Zaoui or by others attracted to New Zealand by his
presence here, could threaten the safety of New
Zealanders.
“Impact adversely on New
Zealand’s international well-being”
As part of the
international community it is New Zealand’s responsibility
to take its proper part in controlling, defeating and
preventing activities of security concern, such as those of
which Mr Zaoui has been convicted in Belgium and France and
for which he was deported from Switzerland. Consistent with
this, it is a government objective to ensure that New
Zealand is neither the victim nor the source of acts of
terrorism or other activities of security concern, and to
prevent New Zealand from being or becoming a safe haven for
people who have undertaken, or may be intending to
undertake, such activities.
If Mr Zaoui, with his public
record, were allowed to settle here, that would indicate
that New Zealand has a lower level of concern about security
than other like-minded countries. That would impact
adversely on New Zealand’s reputation with such countries
and thus on New Zealand’s international wellbeing.
If Mr
Zaoui or other people attracted to New Zealand by his
presence here, were to undertake, facilitate, promote or
encourage activities of security concern, either in New
Zealand or elsewhere from within New Zealand, the adverse
impact on New Zealand’s reputation and thus on its
international well-being would be
compounded.
Availability of judicial
review
Williams J’s decision
[86] The Crown argued in
the High Court that s 19(9) of the I-G Act, as imported with
necessary modifications into the Immigration Act by s
114I(6)(b), precluded judicial review on the grounds
advanced by counsel for Mr Zaoui. Section 19(9)
provides:
Except on the ground of lack of
jurisdiction, no proceeding, report or finding of the
Inspector-General shall be challenged, reviewed, quashed or
called into question in any court.
[87] After
reviewing the authorities, Williams J said that courts
usually approach privative clauses on the basis that
Parliament did not intend decision-makers’ findings to be
immune from review if the decision has been reached on an
incorrect legal basis, whether due to error of law,
unfairness or unreasonableness. Therefore, if the
Inspector-General’s interlocutory decision was materially
incorrect in any such sense, it will have been reached with
“lack of jurisdiction” as the authorities define the phrase
and accordingly s 19(9) will be inapplicable.
[88] The
Crown had submitted that the statutory scheme in this case
limited this principle. Approaching the Inspector-General’s
jurisdiction as a matter of statutory interpretation,
Williams J acknowledged that other parts of the Act placed
specific restrictions on judicial review, but said none of
these were applicable to this step in the decision-making.
As regards the judicial status of the Inspector, he saw this
more as a mark of the sensitivity of the material than as an
indicator against review. He noted the appeal right given to
Mr Zaoui, should the certificate be upheld, but said that
this too was at a different stage of the process. Finally,
the Judge acknowledged the force in the Crown’s submission
that Part IVA processes required expedition, but was of the
opinion that, although judicial review might slow the
process, it would be preferable for the process to proceed
on the legally correct basis and thus avoid potential
repetition.
[89] The Crown had also argued that a judicial
review proceeding at an early stage of the
Inspector-General’s review was premature. Williams J held
that there was no basis to conclude that the proceeding
should not continue because it is not “ripe” for review. He
pointed out that there is ample authority to the effect that
in New Zealand interlocutory decisions made during the
course of exercising or proposing to exercise statutory
power are amenable to judicial review at that point and
there is express statutory authority to that effect. In
addition, it was sensible that there be such power as it
lessens the chance of legal error undermining the final
decision.
Crown submissions on appeal
[90] The Crown
began by accepting that the concept of
jurisdiction/jurisdictional error is elastic, but emphasised
that the meaning, scope and effect of a particular privative
clause has to be assessed against its statutory setting. The
Crown pointed to four features of the statutory context that
in its submission militate against allowing the broad review
contended for by Mr Zaoui.
[91] First, the Crown pointed
to Part IVA’s emphasis on speed, and submitted that judicial
review of procedural rulings is simply inconsistent with
this emphasis. Secondly, the Crown argued that Part IVA
definitively spells out the rights of the person affected
and submitted that, by allowing broad judicial review, the
court would be cutting across the clear process Parliament
has laid down.
[92] Thirdly, it was said that the
availability of an appeal to the Court of Appeal by leave
under s 114P(1) provides sufficient curial supervision. This
section allows a person named in a security risk certificate
that is confirmed under s 114J to appeal, with leave,
against the decision of the Inspector-General on the grounds
that it is “erroneous in point of law.” The Crown cited
Peters v Davison [1999] 2 NZLR 164 as illustrating the
breadth, and therefore the sufficiency, of the Court of
Appeal’s jurisdiction on an “error of law” basis. Thus, the
Crown argued, s 19(9) is a jurisdictional demarcation
clause, not a true privative clause. It does not extend the
Inspector-General’s jurisdiction to make conclusive his
decisions on legal issues. Rather it ensures that a
decision, which is erroneous in law, is addressed by way of
appellate review rather than through the supervisory
jurisdiction of the High Court. Further, in the Crown’s
submission, not only does the existence of a statutory
appeal generally point against allowing a full review, but a
full review at this stage would undermine the deliberate
control of the leave requirement in s 114P(1).
[93]
Fourthly, the Crown differed from Williams J’s assessment of
the significance of the Inspector-General’s status as a
former High Court Judge. The requirement of judicial status
is, in its submission, a guarantee that the Inspector-
General will be experienced in making objective
determinations and the value of this as the primary
safeguard has been expressly recognised by Parliament.
Further, as the Inspector-General is the functional
equivalent of a High Court Judge, the Crown submitted that
appeal to the Court of Appeal is more appropriate than High
Court supervision.
[94] The Crown also reprised its
submissions on prematurity. It submitted that reviewing the
Inspector-General’s processes before he has completed his
review will be futile if he ultimately determines that the
certificate was not properly made, especially since the
Director has no right of appeal. In addition, there is the
prospect of serial reviews throughout the process. In the
Crown’s submission, the concerns about prematurity are
reflected in the North American jurisprudence dealing with
the doctrine of “ripeness” as described in the decision of
the US Supreme Court in Abbott Laboratories v Gardner (1967)
387 US 136, 148-149. While accepting that the ripeness
doctrine is not recognised as such in New Zealand, the
principles underlying the doctrine are, it is submitted,
analogous and useful to the case. Mr Zaoui will have a
meaningful opportunity to complain later, if the certificate
is confirmed, through appeal.
Submissions for Mr
Zaoui
[95] Mr Harrison QC, for Mr Zaoui, submitted that
two main principles could be extracted from the privative
clause authorities. The first is that, if Parliament wishes
to oust the supervision of the High Court, it must do so
using clear and express language and secondly that any
“material error of law” will be considered a jurisdictional
error and thus amenable to review in terms of s 19(9). The
Inspector- General’s errors, in Mr Harrison’s submission,
are all material errors of law.
[96] Mr Harrison
essentially supported the reasoning of Williams J, but made
three additional points. Arguing that the decision of this
Court in Bulk Gas Users Group v Attorney-General [1983] NZLR
129 should be followed, Mr Harrison observed that s 19(9)
was enacted in 1996, in full knowledge of the law laid down
in that case, a point which is further strengthened by the
fact that the expression in s 19(9) “except on the ground of
lack of jurisdiction” is analogous to that considered in
Bulk Gas.
[97] Mr Harrison acknowledged the importance of
s 114P(1) but said that this supports the contention that
the Inspector-General was intended to be subject to
correction for errors of law. In Mr Harrison’s submission,
there are perverse consequences if s 114P(1) is meant to be
in place of review rights. Section 114P(1) gives no right of
appeal to the Crown and in any event an appeal is available
only when a certificate has been confirmed. One implication
of this would be, he submitted, that there would be no means
for the Crown to restrain the Inspector- General if, for
example, he had decided to provide what is clearly
classified security information to a person named in a
certificate. Accordingly, he submitted that s 114P(1) is
inadequate unless supplemented by the right to
review.
[98] Mr Harrison addressed the Crown’s expedition
argument by observing that the purpose of Part IVA is not as
one-sided as the Crown suggests. The statutory injunction in
s 114I(3) is to conduct the review with all reasonable speed
and diligence and several other sections in Part IVA evince
an intention to balance the public interest with individual
rights.
[99] Finally, Mr Harrison submitted that s 19(9),
when read consistently with s 27(2) of the New Zealand Bill
of Rights Act 1990 (BORA), as required by s 6 of that Act,
compels a restrictive interpretation of its privative effect
– see Joseph, Constitutional and Administrative Law in New
Zealand (2ed 2001) at 766-9. He pointed out that the 1985
White Paper proposing a Bill of Rights for New
Zealand
((1985) AJHR A6) commented in para 10.172
that:
The provision [what is now s 27(2)],
however, sets out and gives enhanced status to the basic
constitutional right to go to court to challenge the legal
validity of government actions. It should serve as a check
to privative clauses in Acts purporting to restrict the
power of judicial review.
[100] In terms of
the Crown’s prematurity arguments, Mr Harrison’s submission
is that it is not a principle of New Zealand law, or indeed
English law, that a participant in a statutory process,
which confers a right of appeal against its ultimate
outcome, cannot utilise judicial review to challenge an
adverse preliminary or procedural ruling. To the contrary
the staring point, in his submission is that Mr Zaoui had a
right to apply for judicial review under s 4(1) of the
Judicature Amendment Act 1972. The section applies
notwithstanding any right of appeal and to the proposed
exercise of statutory powers. In addition, in this case Mr
Zaoui has no present right of appeal. Mr Harrison does not,
however, dispute that the error of law alleged must be
material.
Discussion
[101] The approach to privative
clauses is now well established in New Zealand. Subject to
the statutory context, material errors of law are generally
considered to be jurisdictional errors. The errors asserted
here are material errors of law. The failure to provide a
summary is an allegation of a denial of natural justice. The
failure to have regard to international human rights
instruments is an allegation that the former
Inspector-General had fundamentally misconceived his task. I
agree with Williams J that there is nothing in the statutory
context that militates against the conclusion that review
was intended to be available with regard to such errors,
despite s 19(9) of the I-G Act.
[102] It is true that
there is an emphasis on speed in the statutory scheme but
allowing a review to proceed on a totally wrong basis would
in the long run cause as many delays as allowing judicial
review at this stage. It must be remembered that Mr Zaoui’s
case is the first under Part IVA and it is to be expected
that future reviews would be able to be conducted with much
more alacrity. Further, review is only available for
material errors of law and this must lessen the prospect of
serial reviews.
[103] I do not accept the Crown submission
that Part IVA spells out the complete process to be followed
and therefore excludes review. If the Crown submission were
accepted, this would mean that, short of a lack of
jurisdiction in the narrowest sense, review would not even
be available if those processes were not followed and the
rights accorded by the Act to the person affected not
respected in the review process. In any event, in my view
the statutory scheme is designed to protect individual
rights as far as is possible without divulging the
classified security information. This necessarily points to
the conclusion that review is available.
[104] Like
Williams J, I do not consider that the appeal right, which
is not even a present appeal right, excludes judicial
review. I accept Mr Harrison’s submission that there is
nothing in the New Zealand authorities to suggest that this
is the case. There is also merit in his submission that the
restrictive scope of possible appeal suggests that judicial
review is available. His observation, accepted by the Crown,
that the Crown itself is incapable of challenging on appeal
decisions of the Inspector- General, even though those
decisions may have grave implications for national security,
is a cogent one. This result cannot have been intended. In
addition, I do not see the availability of judicial review
as cutting across the leave requirement. Review is only
available for material errors of law and leave to appeal
would almost certainly be granted if such errors were made
by the Inspector-General in his review.
[105] The point
about the status of the Inspector-General appears to be
makeweight. Even current High Court Judges fulfilling
functions other than as High Court Judges, such as heading
commissions of inquiry, are amenable to review. Finally on
this part of the argument, I accept Mr Harrison’s submission
that, in the absence of clear words to the contrary (and
here all the indicia point the other way), the combination
of s 6 and s 27(2) of BORA would in any event require the
Court to construe “lack of jurisdiction” as including
material errors of law and hold, accordingly, that review is
not barred by s 19(9).
[106] Turning now to the Crown’s
submission on prematurity, I accept Mr Harrison’s submission
that the blanket application of the ripeness doctrine
contended for by the Crown is excluded by the Judicature
Amendment Act. The English cases are of limited value in
this regard as they are based on a regime where leave is
required to bring judicial review proceedings. The North
American cases are also of limited value, given the
different nature of the review function – see the discussion
of this in the judgment of Hammond J in Thompson v Treaty of
Waitangi Fisheries Commission CA247/03, 15 June 2004, at
paras [215] – [219].
[107] Although, as the Crown
observed, the Court retains a discretion to deny review,
this discretion should be exercised on the basis of the
factors of individual cases. It cannot operate as a blanket
exclusion of review in all Part IVA cases. In this case, the
importance of the points at issue means that relief should
not be denied on discretionary grounds.
Relevance of
international human rights instruments
Division of
function between the Minister and the
Inspector-General
[108] In order to decide to what extent
(if at all) the Inspector-General is required to consider
the international human rights dimension, it is first
necessary to analyse the Act to define the roles played by
the various people with input into the process. The main
issue for the appeal is the delineation of the limits of the
roles of the Inspector-General and the Minister under Part
IVA. To state the opposing submissions shortly, the Crown’s
position is that Williams J went too far in his finding of
limited relevance for the human rights dimension, while, for
Mr Zaoui, Williams J did not go far enough.
[109] The
Crown submitted that it is not the Inspector-General’s role
to consider any questions relating to deportation, including
considerations relating to the Convention Against Torture
and other Cruel, Inhuman or Degrading Treatment or
Punishment (entered into force 26 June 1987) and other human
rights instruments. The submission was that the
Inspector-General, like the Director, is concerned solely
with security questions and any questions as to deportation
are for the Minister.
[110] Mr Harrison, for Mr Zaoui,
submitted that, as the confirmation of the security risk
certificate will lead to deportation, subject to the
Minister’s discretion not to rely on it, then the
Inspector-General must, when deciding whether or not to
confirm the certificate, consider whether there is a safe
third country for Mr Zaoui to be sent to. If not, the
Inspector-General must balance the risk to the security of
New Zealand against the risk to Mr Zaoui of possible torture
and death. If a safe third country cannot be found, then the
Inspector-General should only confirm the certificate in
exceptional circumstances, if at all. Mr Harrison pointed to
the very short time frame of three working days for the
Minister to decide whether to rely on the certificate, if it
is confirmed by the Inspector-General. This, it was
submitted, makes it even more important that the
Inspector-General has taken into account New Zealand’s
international obligations.
[111] Mr Hesketh, for the Human
Rights Commission, made similar submissions. He submitted
that, while it is accepted that the law reserves certain
powers to the Minister in relation to the security
certificate, which may involve taking New Zealand’s
international commitments into account, this does not
preclude the Inspector-General from taking them into account
as well. I note that the Commission stressed that, in making
its submissions, it did not seek to appear as advocate for
Mr Zaoui but was carrying out its role of providing
oversight of the implementation of international human
rights instruments at the domestic level.
[112] Section
114I(4) provides that the Inspector-General’s role is to
decide whether the security risk certificate issued by the
Director in relation to Mr Zaoui was properly made. It is
only when that certificate is confirmed that any issue of
deportation or removal can arise but it is clearly for the
Minister to decide whether or not to rely on the certificate
if it is confirmed on review. It is only in the event that
the Minister decides to rely on the certificate that
deportation or removal can follow – see s 114K. The division
of functions under the legislation is, therefore, clear and
the Crown is correct in its submission that issues of
deportation or removal are for the Minister and not for the
Inspector-General.
[113] Mr Harrison submitted that it is
wrong to argue that the Inspector-General’s review is
uninvolved in and with the potential deportation of Mr Zaoui
since s 114A(d) lists, as one of the objects of Part IVA,
the recognition that the balance between the public interest
and the individual’s rights is best achieved by the
Inspector-General’s role to “consider the information and
approve its proposed use”. Section 114A(e) then refers to
the “approved use” of the information, an intended
consequence of which is that removal or deportation can
proceed immediately. The Inspector-General cannot lose sight
of that reality. I consider, however, that “approved use”
means the provision of the information to the Minister with
the knowledge that the information is sufficient to justify
deportation or removal but it does not involve the
consideration of whether or not deportation or removal will
take place. In other words, the certificate is an essential
part of the Minister’s information on which he or she must
judge whether to remove or deport. It is not the decision on
removal or deportation itself.
[114] The
Solicitor-General, Mr Arnold QC, assured the Court that the
current Minister accepts, as his predecessor did, that, in
making any decision on whether to rely on the certificate,
he must take into account BORA, New Zealand’s international
obligations under the international human rights instruments
to which it is a party, including the Convention Against
Torture, and customary international law. If the certificate
is confirmed, it seems to me that the Minister must also
ensure that he has sufficient information on the classified
security information that has been held to be credible and
the exact nature of the security risk involved. Such
information will be necessary to enable him to make a fully
informed decision on the deportation or removal question,
even though I note that the Act contains no explicit
provisions as to how this should occur.
[115] There is
merit in Mr Harrison’s submission that there is a very
truncated timeframe for the Minister to decide whether or
not to rely on the certificate. A three day timeframe would
clearly often be insufficient for a proper consideration of
the relevant human rights issues, including whether or not a
third country is safe and whether or not deportation to that
country will lead to indirect refoulement. There is also no
requirement for the Minister to give reasons, which limits
any possibility of effective review (if indeed review is
available). This cannot, however, operate to transfer what
are clearly functions appropriately vested in the Minister
to the Inspector-General. I accept the Crown submission, for
example, that the Inspector- General would not have the
expertise, the advice or the diplomatic channels to assess
whether a third country is safe.
[116] In this case, the
position is ameliorated somewhat as the Minister has
indicated willingness to receive and consider any material
that may be put forward by Mr Zaoui on these topics before
the review process is completed, although there will be
issues with the availability of funding for this. Section
7(1)(m) of the Legal Services Act 2000 provides legal aid
only for the Inspector-General’s review. No questions
relating to funding or to the procedure that should be
followed by the Minister and the considerations to be taken
into account are, however, before us and, accordingly, I
make no further comments on these topics.
[117] The
division of functions between the Inspector-General and the
Minister also appears to fit in with Professor
Grahl-Madsen’s comments in para 4 of his commentary on art
32 of the Refugee Convention, where he says that it is clear
that the authorities are free to decide that the expulsion
of a refugee is justified because of considerations of
national security or public order, that is to say that the
removal of a refugee would have a salutary effect on those
public goods, without having to consider whether it is
possible to send him or her out of the country, either to
another country of refuge or to the country of origin. It is
only after the expulsion has been decided upon that it is
necessary to deal with the question of where to send the
refugee concerned. As indicated above, it is the latter
issue that is the concern of the Minister, the former that
of the Inspector-General.
Relevance of the Refugee
Convention to the review
[118] This is not, however, the
end of the matter as it is still necessary to consider
whether, despite the limits of the Inspector-General’s
functions under Part IVA of the Act, international human
rights instruments are nevertheless relevant. The Crown
submitted that international human rights instruments,
including the Refugee Convention, are irrelevant to the
Inspector-General’s task, which is limited to considering
security questions.
[119] Mr Harrison submitted, on the
other hand, that international human rights instruments are
of primary relevance. In his submission, the inclusion of
the wording of a key provision of the Refugee Convention,
art 33.2, in both of the relevant s 114C criteria must be
treated as having the effect of a deliberate importation
into Part IVA of New Zealand’s overall obligations under art
33, as interpreted at international law. It necessarily
follows that any assessment by the Inspector-General in the
course of a security risk certificate review of the question
whether Mr Zaoui is properly covered by the s 114C(6)(a)
criterion must be undertaken and judged against a standard
of compliance with art 33 as a whole. In particular, art
33.2 of the Refugee Convention requires a balancing of the
seriousness of the risk to national security with the
possible consequences to Mr Zaoui of confirming the security
risk certificate. The greater the consequences to Mr Zaoui,
the higher the risk to national security must be.
[120] Mr
Hesketh’s submission was in essence the same. He submitted
that it should not be possible to invoke a provision (art
33.2) to exclude a person from protection to which they are
otherwise entitled without first evaluating the context
within which that protection arises.
[121] One of the
matters to be decided by the Inspector-General is whether Mr
Zaoui meets the security criteria relied upon by the
Director. In Mr Zaoui’s case, the Director considered that,
under s 114C(6)(a), there are reasonable grounds for
regarding Mr Zaoui as a danger to the security of New
Zealand in terms of art 33.2 of the Refugee Convention and
that he also, under s 114C(4)(a), constitutes a threat to
national security in terms of s 72 of the Act.
[122] For a
person, like Mr Zaoui, who is recognised as a refugee in New
Zealand, there is little practical difference between the s
114C(4) and (6) criteria, given the prohibition in s 129X(1)
on the removal or deportation of a person who is a refugee
or refugee status claimant unless the provisions of art 32.1
or art 33.2 of the Refugee Convention allow the removal or
deportation. The relevant refugee deportation security
criteria also require a combination of at least one
criterion from each of s 114C(4) and s 114C(6). This must
effectively limit the concept of a threat to national
security under s 72, in the case of a refugee or refugee
status claimant, to matters that would allow deportation
under art 32.1 or art 33.2 of the Refugee Convention. This
means that Mr Zaoui cannot be deported unless there are
reasonable grounds for regarding him as a danger to the
security of New Zealand in terms of art 33.2, that being the
s 114C(6) criterion relied on by the Director.
[123] The
explicit reference to the Refugee Convention in s 114C(6)
must mean that whether there are reasonable grounds for
regarding Mr Zaoui a danger to the security of New Zealand
has to be considered in light of New Zealand’s obligations
under that Convention. It is difficult to conceive of a more
direct way of importing these considerations into the
statute. The Crown’s submission that the InspectorGeneral is
not required to consider the Refugee Convention is clearly
untenable. The statute explicitly requires him to do
so.
[124] This means that the Inspector-General’s view
that international human rights obligations are “beside the
point” is incorrect, at least insofar as art 33.2 of the
Refugee Convention is concerned. It also means that the
Inspector-General’s view that the Director was correct to
rely on the definition of security in the SIS Act was wrong,
at least insofar as that definition does not coincide with
the manner in which the term is used in the Refugee
Convention, as brought into New Zealand law by s 114C(6). I
comment that the purpose of the SIS Act definition of
security is to define the powers of the Security
Intelligence Service and its Director. It would not be
expected that such powers would be defined too restrictively
as that would unduly constrain their activities. As will
become clear from the analysis below, the definition of
security in the SIS Act serves quite a different purpose
from the term as used in the Refugee Convention.
[125]
Equally, Williams J’s comments on the relevance of the
Refugee Convention at [114] of his judgment (quoted at [81]
above), and the view expressed at [172](iv)
(quoted at
[82] above) that it is for the Inspector-General to decide
what relevance and weight he accords international human
rights instruments and international human rights
jurisprudence, cannot be correct, at least insofar as it
extends to art 33.2 of the Refugee Convention.
[126] The
primary focus must, however, be on the statutory wording,
including the reference to art 32.2 of the Refugee
Convention. While, as discussed above, the division of
functions between the Inspector-General and the Minister
means that it is for the Minister to consider the relevant
human rights issues that relate the question of deportation
or removal, other international human rights instruments and
jurisprudence and BORA may well be relevant to the
Inspector-General’s review. I note, for example, that there
is a presumption that, so far as its wording allows,
legislation should be read consistently with New Zealand’s
international obligations - see New Zealand Airline Pilots'
Association v Attorney-General [1997] 3 NZLR 269, at 289 and
the discussion in J F Burrows Statute Law in New Zealand
(3ed, 2003) at 341-343. In addition, there is the explicit
instruction in s 6 of BORA requiring an interpretation that
is consistent with BORA where possible – see Paul Rishworth
The New Zealand Bill of Rights Act (OUP, 2003) at chapter 4.
It is not possible at this stage, however, to assess the
extent to which they should be taken into account. I agree,
therefore, with Williams J’s assessment that the relevance
of, and the weight to be attached to, those other
instruments and BORA will be a matter for the
Inspector-General to assess in the course of his
review.
What does the Refugee Convention require?
[127]
It is now necessary to consider the meaning of the phrase
“reasonable grounds for regarding [a person] as a danger to
the security of New Zealand”. As stated above, it is clear
from the use of the qualifying words, “in terms of article
33.2 of the Refugee Convention”, that the meaning of the
phrase is designed to conform to the meaning it bears under
the Refugee Convention.
[128] Article 31.1 of the Vienna
Convention on the Law of Treaties, (1155 UNT 331 entered
into force 27 January 1980), requires treaties to be
interpreted in good faith in accordance with the ordinary
meaning of the words as seen in their context and in the
light of the treaty’s object and purpose. Context, under art
31.2, means the treaty as a whole, including its preamble
and annexes as well as any agreements or instruments made by
the parties in connection with the treaty.
[129] This
approach to interpretation is effectively the same as New
Zealand’s approach to the interpretation of statutes as set
out in s 5 of the Interpretation Act 1999, even though the
reference to context recommended by the Law Commission was
taken out of that section before its enactment (A New
Interpretation Act: To Avoid “Prolixity and Tautology” (NZLC
R17, 1990) paras 66-72). The deletion of the word “context”
was because of a concern that such a reference may have
brought in too wide a range of material. Even without a
reference to context, however, it is clear that words in a
statute should, as appropriate, be read in the context of
the statute as a whole - see the discussion in Burrows,
155-167.
[130] Under the Vienna Convention, art 31.3, any
subsequent agreement as to interpretation of the treaty and
subsequent State practice can affect the interpretation of
treaties. Relevant rules of international law applicable in
the relations between the parties must be taken into
account. It is also acceptable, under art 32, to have
recourse to the travaux préparatoires (preparatory work for
the treaty) as a means of interpretation, although
Lauterpacht and Bethlehem, at para 47, suggest that with
older treaties, such as the Refugee Convention, the
preparatory work may be of more limited assistance, given
the passage of time and subsequent developments in
international law. These principles have no direct
counterpart in New Zealand’s Interpretation Act but see the
discussion by Burrows at 168-199, 243-252 and 273 about
reference to extrinsic materials, in particular the use of
the legislative history as an aid to interpretation, the
presumption as to conformity with international obligations
discussed above, the statutory directions as to Bill of
Rights consistent interpretations in s 6 of BORA and the
principle of interpretation set out in s 6 of the
Interpretation Act that enactments apply to circumstances as
they arise.
[131] If there was, nevertheless, a divergence
between the interpretation of a provision under domestic
principles and that under the Vienna Convention, then it
would be a matter of statutory interpretation to determine
whether the domestic or international interpretation was
meant to prevail. In this case, the statute clearly points
to the international interpretation principles applying
because of the direct reference to the Refugee Convention
but I do not consider that, in fact in this case, any
questions of differences between domestic and international
interpretation principles arise.
[132] The starting point
for the interpretation of the phrase, “reasonable grounds
for regarding [a person] as a danger to the security of New
Zealand, in terms of Article 33.2 of the Refugee Convention”
must be the words themselves, as seen in the context of the
Refugee Convention and in light of its object and purpose,
which is clearly of a humanitarian character. As pointed out
by Lauterpacht and Bethlehem, at paras 49 and 50, the
humanitarian purpose emerges quite clearly from the preamble
to the Convention and also from its origin in the work of
the Ad Hoc Committee on Statelessness. See also the
discussion of the genesis of the Refugee Convention in
Nehemiah Robinson Convention Relating to the Status of
Stateless Persons: Its History and Interpretation (1955,
Reprinted by the Division of International Protection of the
UNHCR, 1997). It is also, they consider, clear from the very
definition of the term refugee in art 1A(2) of the
Convention and the protection afforded to refugees by
articles 31-33.
[133] Using the methodology set out above,
the meaning of the first part of the phrase, that requiring
“reasonable grounds”, is self-evident. It means that the
State concerned cannot act either arbitrarily or
capriciously and that it must specifically address the
question of whether there is a future risk and the
conclusion on the matter must be supported by evidence. The
Courts in New Zealand, in the context of the issue of search
warrants, have also emphasised the evidential requirement:
see R v Sanders [1994] 3 NZLR 450. In Part IVA, the
requirement that the Director of Security hold classified
security information that is credible (s 114D) and the role
of the Inspector-General on review in determining whether
such information was properly regarded as classified
security information and was credible (s 114I) necessarily
requires an evidential foundation, even if the evidence
would not be admissible in a court.
[134] Although the
legislation in issue did not use the words, “reasonable
grounds”, the Canadian Supreme Court in Suresh v Canada
(Minister of Citizenship & Immigration) [2002] 1 SCR 3 at
para [90] said, of the power under the Canadian Immigration
Act for the Minister to issue a certificate that a person
constitutes a danger to the security of Canada, that the
grounds for the issue of that certificate had to be
objectively reasonable and based on evidence. See also on
this point Secretary of State for the Home Department v
Rehman [2003] 1 AC 153, at [22] per Lord Slynn, [29] per
Lord Steyn, [56] per Lord Hoffman and [65] per Lord Hutton
and Lauterpacht and Bethlehem at para 168.
[135] The next
issue is the meaning of the term “danger to the security of
New Zealand”. It is clear from the travaux préparatoires for
the Refugee Convention that there was intended to be a
margin of appreciation for States in the interpretation of
that phrase: see Grahl-Madsen at para 6 of his commentary on
art 33. Indeed, one would expect that views on security
could well differ between States, depending on the
particular circumstances of those States. This Court has
emphasised the many differing uses of the phrase “security
of New Zealand” in a large number of different statutory
contexts: see Choudry v Attorney-General [1999] 2 NZLR 582,
594-595. Views as to what would constitute a danger to
national security can also legitimately change over time.
Nevertheless, the phrase “danger to the security of New
Zealand” must be interpreted in good faith in accordance
with the purpose of the Convention and the wording of the
provision, including the use of the word “danger”, which can
be seen as a strong word, connoting the risk of exposure to
harm (Oxford English Dictionary, 2ed, 1989). In my view, the
potential harm involved must be serious.
[136] The Refugee
Convention is designed to protect refugees from persecution
and the non-refoulement obligation is central to this
function. It is non-derogable
[34] in terms of art 42.1
and, as discussed above at para has become part of customary
international law. The importance of the non-refoulement
obligation is recognised in the Act by its importation into
s 129X and the references to art 33 in Part IVA itself (s
114C(5)(a) and (b), s 114C(6)(a) and (b), and s 114K(4)(b)
and (c) and s 114Q). Against this background, it is clear
that the art 33.2 exception must be interpreted
restrictively. In my view, this means that the danger to
security must be serious enough to justify frustrating the
whole purpose of the Refugee Convention by sending a person
back to persecution.
[137] This view is supported by the
authorities. Grahl-Madsen (at para 5 of his commentary on
art 33) points out that art 33.2 was introduced during the
deliberations of the Conference of Plenipotentiaries (as
convened by the General Assembly to consider a draft
convention that had been prepared under the auspices of the
Economic and Social Council by the Ad Hoc Committee on
Statelessness and Related Problems - see Lauterpacht and
Bethlehem at 98-99 and Robinson at 2). It resulted from an
amendment proposed jointly by the delegates of France and
the United Kingdom. Before then the principle of
non-refoulement in the draft treaty had been expressed in
absolute terms, as it had been in the 1933 Convention (The
Convention of 28 October 1933 relating to the International
Status of Refugees, 159 LoNTS 199). It was not, however,
intended to be a wide exception. Grahl-Madsen comments, in
para 7 of his commentary on art 33.2, that the United
Kingdom delegate stressed that “the authors of the joint
amendment had sought to restrict its scope, so as not to
prejudice the efficacy of the article as a whole”. See also
Stenberg at 219-221.
[138] Lauterpacht and Bethlehem, too,
consider that the exception must be viewed restrictively and
that the danger to the security of the country in
contemplation in art 33(2) must be taken to be very serious
danger, rather than danger of some lesser order. They point
to the humanitarian character of the Convention and to the
importance of the protections afforded to refugees by arts
31 to 33 of the Refugee Convention. They note (at para 51)
that the prohibition on refoulement in art 33 holds a
special place in the Convention, being one of the articles
where no reservation is possible (see art 42.1). They
consider that the prohibition on refoulement embodies the
humanitarian essence of the Convention and point out that it
was reaffirmed in art VII(1) of the 1967 Protocol and that
it has been emphasised on a number of occasions both by the
Executive Committee and by the United Nations General
Assembly (see for example A/RES/51/75, 12 February 1997). As
already noted, the Executive Committee has even gone so far
as to observe that the principle of non-refoulement is
acquiring the character of a peremptory rule of
international law – see Conclusion No 25 (XXXIII) 1982 at
para (b).
[139] The Expert Roundtable organised by the
UNHCR and the Lauterpacht Research Centre for International
Law, University of Cambridge, on 9-10 July 2001 concluded,
after consideration of the Lauterpacht and Bethlehem paper,
that art 33.2 must be interpreted very restrictively,
subject to due process safeguards and as a measure of last
resort – see Feller, Türk and Nicholson at 179. This last
resort requirement can be contrasted with the view expressed
by Grahl-Madsen at para 7 of his commentary on art 33 that,
if there is a serious danger to the security of the country,
it is immaterial for the application of the provision
whether the State may safeguard its interests by measures
other than expulsion. However, he also suggested that
refugees should perhaps be given fair warning and a chance
to amend their ways before expulsion to a country of
persecution is seriously considered.
[140] In the context
of the Canadian Immigration Act, the Canadian Supreme Court
saw a danger to the security of Canada, as requiring
substantial threatened harm. It said (at para
90):
90 A person constitutes a "danger to the
security of Canada" if he or she poses a serious threat to
the security of Canada, whether direct or indirect, and
bearing in mind the fact that the security of one country is
often dependent on the security of other nations. The threat
must be "serious", in the sense that it must be grounded on
objectively reasonable suspicion based on evidence and in
the sense that the threatened harm must be substantial
rather than negligible.
[141] It is also
important to remember that the term used is “security”.
Concerns about New Zealand’s reputation can be taken into
account only if they impinge to such a serious extent on
national security that they could fairly be said to
constitute a danger to national security. In this regard it
must be stressed that the granting of refugee status cannot
be seen as an unfriendly act, either on the part of the
State where there is a risk of persecution or by any other
State - see Grahl-Madsen (at para (7) of his commentary on
art 33) and Stenberg at 167. The same must apply to a State
fulfilling its obligations under art 33.
[142] I observe
here too the prospective nature of the danger in this
context. In other words it is concerned with danger to the
security of New Zealand in the present or the future, not
the past, although past conduct may well be relevant in the
assessment of whether a refugee is a danger to New Zealand
now or in the futuresee Grahl-Madsen in para 7 of his
commentary on art 33 and Lauterpacht and Bethlehem at para
164.
[143] The next question is whether the danger to the
security of New Zealand must be of a direct nature or
whether it can include indirect threats of harm to New
Zealand. Despite the lack of a definition and the margin of
appreciation accorded to States, Grahl-Madsen considered the
meaning of security of the country in art 33.2 to be clear.
He says in para 8 of his commentary on art
33:
The meaning of this term is rather clear.
If a person is engaged in activities aiming at facilitating
the conquest of the country where he is staying or a part of
the country, by another State, he is threatening the
security of the former country. The same applies if he works
for the overthrow of the Government of his country of
residence by force or other illegal means (e.g.
falsification of election results, coercion of voters, etc),
or if he engages in activities which are directed against a
foreign Government, which as a result threatens the
Government of the country of residence with repercussions of
a serious nature. Espionage, sabotage of military
installations and terrorist activities are among acts which
customarily are labelled as threats to the national
security.Generally speaking, the notion of “national
security” or “the security of the country” is invoked
against acts of a rather serious nature endangering directly
or indirectly the constitution (Government), the territorial
integrity, the independence or the external peace of the
country concerned.
[144] Lauterpacht and
Bethlehem, at para 165, endorse Grahl-Madsen’s approach of
requiring the security of the country of refuge to be in
danger and not that of other countries. They say that this
is evident from the clear words, as well as fitting in with
the humanitarian policy of the
Convention:
165. Also evident on its face, the
exception addresses circumstances in which there is a
prospect of danger to the security of the country of refuge.
It does not address circumstances in which there is a
possibility of danger to the security of other countries or
to the international community more generally. While there
is nothing in the 1951 Convention which limits a State from
taking measures to control activity within its territory or
persons subject to its jurisdiction that may pose a danger
to the security of other States or of the international
community, they cannot do so, in the case of refugees or
asylum seekers, by way of refoulement. The exceptions in
Article 33(2) evidently amount to a compromise between the
danger to a refugee from refoulement and the danger to the
security of his or her country of refuge from their conduct.
A broadening of the scope of the exception to allow a
country of refuge to remove a refugee to a territory of risk
on grounds of possible danger to other countries or to the
international community would, in our view, be inconsistent
with the nature of this compromise and with the humanitarian
and fundamental character of the prohibition of
refoulement.
[145] In Rehman, Lord Slynn
rejected the idea that the danger to security contemplated
must be direct. Terrorist activity in another State could,
in his view, suffice as long as there was a real possibility
of an adverse effect on the United Kingdom. Lord Steyn, Lord
Hoffman and Lord Hutton made similar remarks and Lord Clyde
agreed with Lord Hoffman. Lord Slynn
said:
[15] It seems to me that Mr Rehman is
entitled to say that ‘the interests of national security’
cannot be used to justify any reason the Secretary of State
has for wishing to deport an individual from the United
Kingdom. There must be some possibility of risk or danger to
the security or well-being of the nation which the Secretary
of State considers makes it desirable for the public good
that the individual should be deported. But I do not accept
that this risk has to be the result of ‘a direct threat’ to
the United Kingdom as Mr Kadri has argued. Nor do I accept
that the interests of national security are limited to
action by an individual which can be said to be ‘targeted
at’ the United Kingdom, its system of government or its
people as the commission considered. The commission [the
Special Immigration Appeals Commission] agreed ([1999] INLR
517 at 528) that this limitation is not to be taken
literally since they accepted that such targeting –
‘includes activities directed against the overthrow or
destabilisation of a foreign government if that foreign
government is likely to take reprisals against the UK which
affect the security of the UK or of its nationals.’[16] I
accept as far as it goes a statement by Professor
Grahl-Madsen in The Status of Refugees in International Law
(1966):
‘A person may be said to offend against national
security if he engages in activities directed at the
overthrow by external or internal force or other illegal
means of the government of the country concerned or in
activities which are directed against a foreign government
which as a result threaten the former government with
intervention of a serious nature.’
That was adopted by the
commission but I for my part do not accept that these are
the only examples of action which makes it in the interests
of national security to deport a person. It seems to me
that, in contemporary world conditions, action against a
foreign state may be capable indirectly of affecting the
security of the United Kingdom. The means open to terrorists
both in attacking another state and attacking international
or global activity by the community of nations, whatever the
objectives of the terrorist, may well be capable of
reflecting on the safety and well-being of the United
Kingdom or its citizens. The sophistication of means
available, the speed of movement of persons and goods, the
speed of modern communication, are all factors which may
have to be taken into account in deciding whether there is a
real possibility that the national security of the United
Kingdom may immediately or subsequently be put at risk by
the actions of others. To require the matters in question to
be capable of resulting ‘directly’ in a threat to national
security limits too tightly the discretion of the executive
in deciding how the interests of the state, including not
merely military defence but democracy, the legal and
constitutional systems of the state need to be protected. I
accept that there must be a real possibility of an adverse
affect on the United Kingdom for what is done by the
individual under inquiry but I do not accept that it has to
be direct or immediate. Whether there is such a real
possibility is a matter which has to be weighed up by the
Secretary of State and balanced against the possible
injustice to that individual if a deportation order is
made.
[146] The Canadian Supreme Court in
Suresh took a similar approach. The Court considered (at
para 87) that, in light of current conditions, support of
terrorism abroad could have adverse repercussions on
Canada’s security, meaning that it could, depending on the
circumstances, constitute an indirect danger to the security
of Canada. It elaborated at para 88:
88 First,
the global transport and money networks that feed terrorism
abroad have the potential to touch all countries, including
Canada, and to thus implicate them in the terrorist
activity. Second, terrorism itself is a worldwide
phenomenon. The terrorist cause may focus on a distant
locale, but the violent acts that support it may be close at
hand. Third, preventive or precautionary state action may be
justified; not only an immediate threat but also possible
future risks must be considered. Fourth, Canada's national
security may be promoted by reciprocal cooperation between
Canada and other states in combating international
terrorism. These considerations lead us to conclude that to
insist on direct proof of a specific threat to Canada as the
test for "danger to the security of Canada" is to set the
bar too high. There must be a real and serious possibility
of adverse effect to Canada. But the threat need not be
direct; rather it may be grounded in distant events that
indirectly have a real possibility of harming Canadian
security.
[147] The word “security” obviously
encompasses the concepts discussed by Grahl-Madsen but I
would incline to support the extension favoured by the House
of Lords and the Canadian Supreme Court, as long as the
indirect danger can sensibly be related to New Zealand. It
must also meet the other requirements discussed above. If
the danger cannot be sensibly related to New Zealand then it
would not accord with the statutory wording – see on this
topic the comments of Lord Slynn quoted above at para
[145]and those of James C Hathaway and Colin J Harvey
“Framing Refugee Protection in the New World Disorder”
(2001) 34 Cornell Int LJ 257 at 290-291. For the exposition
of a cautionary approach in assessing this danger see Obiora
Chinedu Okafor and Pius Lekwuwa Okoronkwo in “Re-configuring
Non-refoulement? The Suresh Decision, ‘Security Relativism’,
and the International Human Rights Imperative” (2003) 15 Int
Jnl Refugee Law 30, 38.
[148] The wording of the provision
also requires the person him or herself to constitute a
danger to national security. This clearly implies that there
must be some element of causation. It was found by the RSAA
(but without the benefit of the classified security
information) that all Mr Zaoui has ever done is to advocate
the return of democracy in Algeria by peaceful means (see
paras [543]-[545], [681],
[795], and [980]). If that is
the case, and absent evidence to the contrary, it would have
to be assumed that he would be unlikely to advocate anything
different in the future. It would, in such a situation, be
difficult to imagine a legitimate process of reasoning that
would find Mr Zaoui as causative of the actions of those who
may in the future commit terrorist acts.
[149]
Grahl-Madsen says (at para (5) of his commentary on art 32)
that, as a general rule, it is the acts and behaviour of the
refugee in his or her country of refuge, and not the public
image of his or her personality, which may justify expulsion
under art 32. These comments would appear to me also to be
relevant to art 33.2, particularly because Mr Zaoui is a
recognised refugee. The RSAA found that Mr Zaoui’s adverse
reputation had arisen, at least in part, from false
information disseminated by Algeria (see paras [967] –
[976]). To the extent that this is the case, he cannot
reasonably be considered as responsible for his reputation
and thus any possible adverse effect arising from that
reputation cannot be seen as caused by him.
[150]
Lauterpacht and Bethlehem agree that what is to be assessed
is the danger posed by the individual in question. At para
176 they state that there must be a real connection between
the individual in question, the prospective danger to the
security of the country of refugee and a significant
alleviation of that danger consequent upon the refoulement
of that individual. If the removal of the individual would
not achieve this end, the refoulement would not be
justifiable. See also the comments of Grahl-Madsen on this
topic at para (4) of his commentary on art 32.
[151] It is
also important that the interpretation of the term “danger
to the security of the country” takes account of a person’s
rights to freedom of association and expression as
guaranteed in ss 17 and 14 of BORA. Obviously, under the
Terrorism Suppression Act, the right to freedom of
association will not extend to knowing participation in a
terrorist group to enhance the ability of the group to carry
out or participate in terrorist acts (s 13) but s 5(5) of
that Act makes it very clear that merely engaging in any
protest, advocacy or dissent is not in itself sufficient to
engage the definition of act of terrorism.
[152] Gilbert
even suggests (at 459-460) that freedom of expression should
extend to support of armed opposition groups in the country
of origin, leaving the refugee protected by the guarantee of
non-refoulement. Okafor and Okoronkwo make a similar point
(at 39). They say that there is no necessary linkage between
the conduct of terrorist activities in a foreign country and
the generation of a real risk to national security. This
issue does not need to be explored further, however, given
that the Director, in Mr Zaoui’s case, does not rely on s 73
of the Act. Nor does he rely on para (d) of the definition
of security in the SIS Act.
[153] The final issue is
whether there is a sliding scale of seriousness of the risk
to national security, depending on the possible consequences
for a particular refugee of refoulement. If this were the
case, then the Inspector-General would, if he confirms the
certificate, be required to identify the actual level of
risk to national security posed by Mr Zaoui over and above
the minimum required to uphold the certificate, even if it
is the Minister who must conduct the actual balancing
exercise in terms of the principles discussed above. It is
likely, however, that the Inspector-General should do this
in any event in his decision on the review as the
information would be necessary for the Minister to make a
fully informed decision as to whether or not to rely on the
certificate. The point is therefore largely
academic.
[154] Most commentators say that there is a
requirement of proportionality, basing this view on the
general principle of proportionality in international law
and on the comments of the United Kingdom delegate when
promoting the addition of what became art 33.2. He said that
States would have to “decide whether the danger entailed to
refugees by expulsion outweighed the menace to public
security that would arise if they were permitted to stay” –
see Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons, 16th mtg, UN Doc
A/CONF.2/sr16 at 8
(1951) (statement of Mr Hoare of the
United Kingdom) the Grahl-Madsen commentary on art 33, para
7 and Dr Paul Weis (ed) The Refugee Convention,
1951
(1995, Cambridge University Press) at 342.
Lauterpacht and Bethlehem consider the requirement for
proportionality at para 178 where they
say:
178. The requirement of proportionality
will necessitate that consideration be given to factors such
as:a) the seriousness of the danger posed to the security
of the country;
b) the likelihood of that danger being
realized and its imminence;
c) whether the danger to the
security of the country would be eliminated or significantly
alleviated by the removal of the individual concerned;
d)
the nature and seriousness of the risk to the individual
from refoulement;
e) whether other avenues consistent with
the prohibition of refoulement are available and could be
followed, whether in the country of refuge or by the removal
of the individual concerned to a safe third
country.
[155] Professor Goodwin-Gill, in his
text at 139-140, considers that principles of natural
justice and due processes of law require something more than
mere mechanical application of the exception. In his view,
the application of art 33.2 ought always to involve the
question of proportionality, with account taken of the
nature of the consequences likely to befall the refugee on
return. Gilbert also considers that there should be
balancing of the refugee’s fear of persecution against the
danger he or she represents to the security of the country –
see 462. He points out too that the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status under
the 1951 Convention and 1967 Protocol relating to the Status
of Refugees (HCR/IP/4 ENG/REV.1, reedited 1992) at para 156
assumes that such balancing is part of the art 33.2 process.
I note that this approach was taken by the House of Lords in
Rehman – see the remarks (with which Lord Steyn, Lord Clyde
and Lord Hutton agreed) of Lord Slynn at para 16 and Lord
Hoffman at para 56.
[156] Hathaway and Harvey disagree -
at 294-296. Once the required standard is met, in their
view, there is no need for any additional balancing. The
required standards are, however, stringent. The concept of
danger to the security of a country must be narrowly
confined such that it would always, because of its
seriousness, trump purely individuated risks. To require
extra balancing risks lowering the standard. They say at
295:
Moreover, while advocacy of a
proportionality test before applying Article 33(2) is
superficially humane, it may work in practice against a
liberal view of the duty to protect refugees. Because of the
implicit premise that some individuated forms of harm could
be more compelling than national security or danger to the
host community, a proportionality test risks trivializing
the significance of the latter two
concepts.
[157] In my view, there is a
balancing in any decision under art 33.2 and therefore with
regard to s 114C(6)(a). As discussed above, it is built into
the concept of danger to the security of the country that
the danger to security posed by the individual must be
serious enough to warrant sending a hypothetical person back
to persecution. Balancing in this sense is the concern of
the Inspector-General. The weight of authority seems to
favour an additional balancing of the consequences for the
particular individual if removed or deported against the
danger to security. Under the statutory scheme, as discussed
above, this additional balancing would be for the
Minister.
[158] It is worth finishing this topic with a
discussion of deportation or removal to death or torture.
Lauterpacht and Bethlehem consider that there is no ability
at all, whether for reasons of national security or
otherwise, to send a person back to direct or indirect
danger of torture, death or cruel, inhuman or degrading
treatment or punishment – see paras 154 and 218. This view
was endorsed by the Expert Roundtable, which stated that, in
cases of torture, there are no exceptions to the prohibition
against refoulement – see Feller, Türk and Nicholson at 179.
This was also the view taken by the European Court of Human
Rights in Chahal v United Kingdom (1996) 23 EHRR 413, paras
101-104.
[159] The Canadian Supreme Court in Suresh took a
somewhat different view. Despite the protections in the
Canadian Charter of Rights and Freedoms and despite holding
that it is likely that the prohibition on torture is a
peremptory norm of international law (see paras 62-65), the
Court held that, even though torture is so abhorrent that it
will almost always be disproportionate to interests on the
other side of the balance, including security interests, it
could not rule out deportation to torture in exceptional
cases. However, the Court commented that the balance would
rarely be struck in favour of deportation where there is a
serious risk of torture – see paras 76-78 of that decision.
This decision has been subject to criticism in David
Dyzenhaus (ed) The Unity of Public Law (Hart, 2004) by David
Mullan “Deference from Baker to Suresh and Beyond –
Interpreting the Conflicting Signals” 21, 44-46 and Jutta
Brunnee and Stephen J Toope “A Hesitant Embrace: Baker and
the Application of International Law by the Canadian Courts
357, 379-380. See also Okafor and Okoronkwo at 43-46 who
consider that the Supreme Court moved from an absolute
condemnation of torture to a relativist condoning of the
practice based on the desire to secure Canada from threats
to its security, in their view a seriously flawed attitude
that it is said should be rejected on the same basis as that
of the rejection of the proposition, by a majority of
Canadians, that criminals ought to be denied human rights
protections.
[160] The question of whether or not there is
in New Zealand an absolute prohibition on removal or
deportation to torture and death, however, was not before
us. It is the Minister who will decide where to send Mr
Zaoui if he decides to rely on a confirmed certificate and,
as indicated earlier, we are not faced with the question of
what considerations the Minister must take into account. It
would appear, in any event, from what the Solicitor-General
said to this Court, that the Minister accepts that, before
he decides to rely on a confirmed certificate, he needs to
find a safe third country to send Mr Zaoui. Role of the
RSAA
[161] The other body having a role in the process
related to Mr Zaoui has been the RSAA. As indicated above,
the issuing of a security risk certificate stops all
immigration related processes, apart from those to determine
whether or not a person has refugee status. That decision,
by statute, rests with the refugee status officers and, on
appeal, with the RSAA. The Inspector-General, as he
recognised in his interlocutory decision, is bound by the
finding of the RSAA as to Mr Zaoui’s status as a refugee,
despite it being reached without access to the classified
security information.
[162] An integral part of the
refugee status decision-making process is to decide whether,
despite a finding that the person has a well-founded fear of
persecution, the exclusion criteria in the Refugee
Convention apply. In Mr Zaoui’s case, the exclusion criteria
that had possible relevance were those contained in art 1F.
Article 1F precludes a person from being granted refugee
status where there are serious reasons for considering
that:
(a) He has committed a crime against
peace, or war crime, or a crime against humanity, as defined
in the International instruments drawn up to make provision
in respect of such crimes;(b) He has committed a serious
non-political crime outside the country of refugee prior to
his admission to that country as a refugee;
(c) He has
been guilty of acts contrary to the purposes and principles
of the United Nations.
[163] The RSAA
concluded (at para [981] of its decision) that there were no
serious reasons for considering that Mr Zaoui had committed
crimes against humanity or serious non-political crimes and
that he was, therefore, not excluded from the protection of
the Refugee Convention. In particular, at [980], the RSAA,
as indicated above, said that there is no evidence for
considering that Mr Zaoui has committed acts of terrorism or
that he is a member, let alone a leader, of the Algerian
Groupe Islamique Armé (GIA) (which I note was automatically
designated as a terrorist entity at the time of the
enactment of the Terrorism Suppression Act following its
inclusion in the United Nations list of terrorist
organisations) or any other armed group. Terrorist acts (in
the sense that they are defined in s 5(1) of the Terrorism
Suppression Act 2002) would generally be encompassed within
the term “serious non-political crime” and would therefore
act as a bar to refugee status pursuant to art 1F - see the
discussion in the Advisory Council of Jurists to the
Asia-Pacific Forum of National Human Rights Institutions
Reference on the Rule of Law in Combating Terrorism (May
2004) at 68 and the International Bar Association
International Terrorism: Legal Challenges and Responses – A
Report by the International Bar Association’s Task Force on
International Terrorism (2003) at 66-69.
[164] I note also
that Security Council Resolution 1373 (S/RES/1373 (2001)
Threats to international peace and security caused by
terrorist acts), at para 3(f) requires States to ensure that
refugee status is not granted to terrorists. That resolution
also, however, required that measures taken for that purpose
must conform with the relevant provisions of national and
international law, including international standards of
human rights. More recently, in S/RES/1456 (2003) Highlevel
meeting of the Security Council: Combating Terrorism, the
Security Council reiterated the obligations of States in
combating terrorism to ensure that such measures accord with
international human rights, refugee and humanitarian law, as
did the Bali Ministerial Regional Meeting on Counter
Terrorism held on 5 February 2004. I observe again, however,
that the Director did not in any event rely on para (d) of
the definition of security in the SIS Act in Mr Zaoui’s
case. Nor did he rely on s 73 of the Act.
[165] In coming
to its conclusion on art 1F, the RSAA examined in detail,
and rejected as providing grounds for exclusion, Mr Zaoui’s
Algerian convictions, the decisions declining him refugee
statues in Belgium, the Belgian and French convictions, the
deportation from Switzerland, non-classified information
provided by the SIS, newspaper reports linking Mr Zaoui to
the GIA in Algeria and other armed groups and an alleged
admission as to membership by Mr Zaoui on arrival in New
Zealand. It will be noted that many of these matters are
relied upon by the Director as justifying the issuing of the
security risk certificate.
[166] In his interlocutory
decision, the then Inspector-General said that he considered
himself bound by the RSAA decision on art 1F – see para [66]
above. This is true in one sense in that the
Inspector-General has no power to remove refugee status from
Mr Zaoui. On the other hand, the RSAA did not have access to
the classified security information in coming to its
decision on art 1F. In addition, the decision of the
Inspector-General on art 33.2 is different from that of the
RSAA. Art 1F is concerned with past acts. Art 33.2 is only
concerned with past acts to the extent that they may serve
as an indication of the behaviour one may expect from the
refugee in the future. The danger that the refugee
constitutes must be a present or future danger – see the
discussion above at para [142].
[167] I note here that the
danger involved is not a present or future danger that a
person may commit a crime as that can be dealt with by the
ordinary criminal law. There is an added dimension. The
anticipated crime must cause the person to be a danger to
the security of New Zealand in the sense discussed above or
a danger to the community. Grahl-Madsen makes this point
when talking about the type of crimes which could constitute
a danger to the community. See the discussion by
Grahl-Madsen in para 10 of his commentary on art 33, Gilbert
at 462 and Weis at 342. The point is equally applicable to
the first limb regarding danger to the security of New
Zealand.
[168] It would not be acceptable to allow the
security risk certificate process to be used as a back door
method of challenging the RSAA grant of refugee status to Mr
Zaoui. The art 33.2 criteria must be met. Although Stenberg
(at 225-226) considers that the two articles have the same
standard of restrictiveness, this view is not widely held.
Lauterpacht and Bethlehem, at para 147, see the threshold
for refoulement under art 33.2 as being higher than that for
refusal of refugee status under art 1F (and the standard
under art 1F is in itself high: see Gilbert at 470). Indeed,
they say that, if the conduct of a refugee is insufficiently
grave to exclude him or her from the protection of the
Refugee Convention by operation of art 1F, it is unlikely to
satisfy the higher threshold in art 33.2. Hathaway and
Harvey (at 320) agree that there is a higher threshold in
art 33.2 but take a narrower view of the scope of art 1F
than was taken by the RSAA, although the view of art 1F
taken by the RSAA appears to be the one more generally held
– see for example Gilbert, at 447-8.
Conclusion
[169] In
summary, I conclude as follows:
a) Judicial review is
available.
b) It is the role of the Minister to decide on
questions of removal or deportation. This means that any
evidence as to the risk of indirect refoulement to torture
or persecution should be addressed to the Minister. Such
evidence is not relevant to the Inspector-General’s
review.
c) Whether there are reasonable grounds for
regarding the person as a danger to the security of New
Zealand must be decided in terms of art 33.2 of the Refugee
Convention. This follows from the explicit reference to the
Refugee Convention in s 114C(6)(a) and requires the
Inspector-General to consider whether there are reasonable
grounds for regarding Mr Zaoui as a danger to the security
of New Zealand in light of New Zealand’s obligations under
that Convention.
d) The security criteria in s 114C(6)(a)
will be met only if there are objectively reasonable grounds
based on credible evidence that Mr Zaoui constitutes a
danger to the security of New Zealand of such seriousness
that it would justify sending a person back to persecution.
The threshold is high and must involve a danger of
substantial threatened harm to the security of New
Zealand.
e) There must be a real connection between Mr
Zaoui himself and the prospective or current danger to
national security and an appreciable alleviation of that
danger must be capable of being achieved through his
deportation.
[170] I would dismiss the Crown appeal and
allow Mr Zaoui’s cross-appeal, to the extent set out
above.
************* JUDGMENT
OF WILLIAM YOUNG J
Introduction
[171] I am
in accord with the conclusions Glazebrook J expressed in
para [169](a), (b) and (c) of the judgment which she has
prepared. Accordingly I would dismiss the appeal and allow
the cross-appeal to the extent specified in para
[169](c).
The issues
[172] The main issues on this
appeal are narrow:
(a) Was the interlocutory decision of
the Inspector-General subject to judicial review?
(b) To
what extent, if any, are international jurisprudence and
human rights considerations (to which I will usually refer
as “human rights considerations”) relevant to the task of
the Inspector-General?
[173] I will deal with each of
these issues in turn.
Was the interlocutory decision of
the Inspector-General subject to judicial review?
A
preliminary comment
[174] The Solicitor-General challenges
the judgment of Williams J on the threshold issue of the
availability of judicial review. In this respect he repeated
arguments advanced to and rejected by Williams J who then
went on to decide the substantive issues presented by the
case. Further, the Director has, in any event, complied (or
purported to comply) with Williams J’s judgment in that he
has supplied Mr Zaoui with a document dated 27 January 2004
entitled “Summary of Allegations and Reasoning of Director
of Security in Making a Security Risk Certificate About Mr
Zaoui”.
[175] This provides an inauspicious context for
consideration of the Solicitor-General’s arguments. If we
were to hold that the judicial review proceedings were
premature or not available at all, where would that leave
the substantive conclusions of Williams J? The
Solicitor-General would say that those conclusions would
then be of no legal effect and this is no doubt so. But they
would remain on the record as the considered conclusions of
a High Court Judge and thus highly influential in respect of
the processes to be conducted by the Inspector-General. A
threshold justiciability argument which has been rejected at
first instance is not a prime candidate for appellate review
if there has already been a substantive determination of the
case involving declaratory relief.
The arguments advanced
by the Solicitor-General
[176] The Solicitor-General
advanced two arguments:
(a) The processes of the
Inspector-General are not subject to review at all.
(b)
Alternatively, the present review proceedings are
premature.
[177] The detailed submissions advanced by the
parties in relation to these arguments are surveyed in the
judgment prepared by Glazebrook J and there is no point in
me repeating them in any detail.
Is judicial review
available in respect of decisions of the
Inspector-General?
[178] The Solicitor-General’s argument
in part turned on s 19(9) of the Inspector-General of
Intelligence and Security Act 1996 and in part on the
overall statutory scheme under Part 4A of the Immigration
Act which he contended was inconsistent with the
availability of judicial review proceedings.
[179]
Interestingly, s 19(9) is in terms which are essentially the
same as the privative clause considered in Bulk Gas Users
Group v Attorney-General [1983] NZLR 129. Parliament must
therefore have intended that the words “except on the ground
of lack of jurisdiction” would be construed in light of the
approach taken by this Court in the Bulk Gas Users case and,
earlier, by the House of Lords in Anisminic Ltd v Foreign
Compensation Commission [1969] 2 AC 147. This particular
form of privative clause is therefore a legislative
indication that judicial review on grounds of lack of
jurisdiction (in the Anisminic sense) is available.
[180]
Section 114H(4) of the Immigration Act excludes, in
unequivocal terms, the possibility of judicial review of
either a certificate or the Director’s decision to make a
certificate. In that context, the absence of any similar
provision in relation to proceedings before the
Inspector-General seems to me to be highly
significant.
[181] Further, the directions of the New
Zealand Bill of Rights Act 1990 and in particular, those
expressed in s 6 and 27(2) point strongly in favour of the
approach argued on behalf of Mr Zaoui.
[182] For the
reasons which I have given and the other considerations
referred to by both Anderson P and Glazebrook J in the
judgments they have prepared, I am satisfied that the
proceedings of the Inspector-General under Part 4A of the
Immigration Act are generally amenable to judicial
review.
Were the present review proceedings
premature?
[183] I accept that prematurity considerations
may provide a discretionary ground for declining
review.
[184] The Crown has not challenged that part of
the judgment of Williams J which was addressed to natural
justice considerations. In any event, a prematurity argument
would be of little substantive merit in this context. The
Inspector-General intended to conduct his review on a basis
which Williams J has held - and the Crown now appears to
accept – was not going to comply with the rules of natural
justice. It does not seem to me to have been premature of Mr
Zaoui to seek relief in relation to what was
proposed.
[185] I do, however, have some sympathy for the
arguments advanced by the Solicitor-General. It is not
possible to foresee all respects in which human rights
considerations may become relevant to the inquiry to be
conducted by the new Inspector-General. In that context, I
see a need for caution in terms of reaching definitive
conclusions as to the extent to which such considerations
are relevant. I also share the Solicitor-General’s
uneasiness about the possibility of a series of challenges
to interlocutory decisions of the Inspector-General which
may have the consequence that the existing process is
further delayed.
[186] That said, the Inspector-General
did say that he regarded “general issues of international
jurisprudence” as “beside the point” - an approach which has
been specifically addressed by Williams J and, in part,
found to be incorrect. If we were to hold that the review
proceedings were premature, the conclusions of Williams J
would necessarily be influential in the way in which the new
Inspector-General might be expected to conduct his inquiry
(a point already made, see para [175] above). Further, as
will become apparent:
(a) There are some aspects to the
process which are obviously significantly affected by human
rights considerations.
(b) There are some human rights
considerations which counsel for Mr Zaoui wishes to deploy
in the course of the inquiry but which are not relevant.
Given the importance of these issues to the structure and
scope of the inquiry to be conducted by the
Inspector-General, I see no harm, and indeed much good, in
addressing them at this stage in the process.
[187] For
those reasons I do not see Mr Zaoui’s proceedings as
premature. The fate of the appeal
[188] Accordingly I
agree that the appeal by the Attorney-General should be
dismissed.
The relevance of human rights
considerations
The approach of the former
Inspector-General
[189] In his interlocutory decision of 6
October 2003 which has given rise to these proceedings, the
former Inspector-General was addressing, inter alia, an
argument from the Director that the human rights instruments
relied on by Mr Zaoui were irrelevant (see para [14] of the
decision) and also whether the Human Rights Commission
should be permitted to participate in the process. The
Inspector-General accepted that he had was required to deal
with “a serious question with possible grave consequences to
Mr Zaoui”. But he did not see international conventions
relating to refoulement as relevant to his task, as opposed
to that of the Minister. Likewise, in the context of the
possible role of the Human Rights Commission, he considered
that “general issues of international jurisprudence are
beside the point”.
[190] It is unclear to me whether the
former Inspector-General had in mind the extent to which the
legislation invoked the language of, and obligations under,
the Refugee Convention. This point was dealt with explicitly
in the written submissions advanced to him by Mr Harrison
but is not specifically addressed in his decision.
The
approach of Williams J
[191] The relevant passages from
the judgment of Williams J are set out in the judgment
prepared by Glazebrook J. There is no need for me to repeat
them all. It is sufficient to record that Williams J saw
human rights considerations as being primarily relevant in
terms of the Minister’s function should the certificate be
confirmed. However, Williams J concluded that human rights
considerations dictated that the Inspector-General subject
the certificate to “rigorous examination”
(see para [141]
of his judgment). As well, he considered at para [172] of
his judgment:
… the determination whether the
Certificate was “properly made or not” … will undoubtedly
involve reference to the international human rights
instruments and international human rights jurisprudence.
Accordingly he concluded, in the same paragraph of his
judgment that: 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
competing arguments
[192] The Crown contends that Williams
J went too far. Mr Zaoui argues that he did not go far
enough.
[193] The arguments both ways are discussed at
length in the judgment of Glazebrook J.
Evaluation
[194]
Section 114C(6) specifically refers to and incorporates art
33.2 of the Refugee Convention. Also of relevance is s
129X(1) which precludes the deportation of Mr Zaoui unless
art 33.2 is satisfied. International jurisprudence as to the
meaning and effect of art 33.2 is therefore obviously
relevant.
[195] I also agree that human rights arguments
directed to the question whether Mr Zaoui should be deported
in the event that the Inspector-General upholds the security
certificate are for the Minister. On this aspect of the case
I agree with the approach of the former Inspector-General,
the views of Williams J in the High Court and the
conclusions expressed by Glazebrook J in the judgment which
she has prepared.
[196] In her judgment, Glazebrook J has
discussed in considerable detail the respects in which she
considers that human rights considerations (but particularly
the international jurisprudence) influence or control the
interpretation to be placed on art 33.2 of the Refugee
Convention and the way it must be applied by the
Inspector-General. I would prefer to express no definitive
conclusions on these points, as they were not the subject of
elaborate argument on both sides. This is the only aspect of
the case on which I differ from Anderson P and Glazebrook J.
I will, however, identify some issues which have arisen, or
may in the future arise, in respect of which I regard human
rights considerations as relevant.
[197] Article 33 of the
Refugee Convention, at least if construed literally, would
permit the deportation of Mr Zaoui if:
… there
are reasonable grounds for regarding [him] as a danger to
the security of the country in which he is [ie New Zealand]…
. It does not permit his deportation on the basis that:
there are reasonable grounds for concluding that there are
reasonable grounds for regarding him as a danger to the
security of New Zealand.
Yet this is
essentially what the Crown asserted when it argued that the
scope of the Inspector-General’s review was simply to
determine whether there was a reasonable basis for the
Director’s certificate. So for this, as well as the reasons
given by Anderson P and Glazebrook J in the judgments which
they have prepared, I am satisfied that the
Inspector-General’s review involves a substantive
reconsideration of the merits of the certificate given by
the Director.
[198] The words “reasonable grounds for
regarding” might not, in themselves, suggest a particularly
exacting standard to be satisfied before refoulement is
permissible under art 33. I am, however, firmly of the view
that these words must be interpreted so as to ensure that
New Zealand conforms to its obligations under the Refugee
Convention and thus in light of the international
understanding of what they mean (or imply).
[199] Likewise
the concept of “danger to the security of” New Zealand
requires an interpretation which is consistent with New
Zealand’s obligations under the Refugee Convention and, in
respect of this question, international understanding as to
the scope of art 33.2 necessarily comes into
play.
Conclusion
[200] I am not sure that the approach
which I favour differs in substance from that taken by
Williams J in the High Court. His conclusions, however, were
expressed in reasonably general terms whereas I would prefer
to be explicit as to the respects in which human rights
considerations will necessarily be directly relevant to the
exercise the Inspector-General must carry out. So I favour
allowing the cross-appeal but only to the extent
contemplated by Glazebrook J in para [169](c) of her
judgment.
***********
APPENDIX
* # # # #
*A: IMMIGRATION ACT 1987
2
Interpretation
(1) In this Act, unless the context
otherwise requires,— act of terrorism means—
(a) Any act
that involves the taking of human life, or threatening to
take human life, or the wilful or reckless endangering of
human life, carried out for the purpose of furthering an
ideological aim; or
(b) Any act involving any explosive or
incendiary device causing or likely to cause the destruction
of, or serious damage to, any premises, building,
installation, vehicle, or property of a kind referred to in
any of sections 298 to 304, except subsection (3) of section
298, of the Crimes Act 1961 [causing disease or sickness in
animals and contaminating food, crops, water, or other
products] , carried out for the purpose of furthering an
ideological aim; or
(c) Any act that constitutes, or that
would, if committed in New Zealand, constitute, a crime
against section 79 of the Crimes Act 1961 [sabotage],
carried out for the purpose of furthering an ideological
aim; or
(d) Any act that constitutes, or that would, if
committed in New Zealand, constitute, an offence against any
of the provisions of the Aviation Crimes Act 1972 [hijacking
and crimes relating to damage or destruction of aircraft and
international airports] or the Crimes (Internationally
Protected Persons, United Nations and Associated Personnel,
and Hostages) Act 1980 [serious crimes such as murder,
offences of violence and kidnapping committed against
persons, for example diplomats, who are entitled to special
protection from attack] or the Maritime Crimes Act 1999 or
against section 7(1) or section 8(1) of the Terrorism
Suppression Act 2002; and includes the planning of any such
act:
Part III—Deportation of persons threatening national
security and suspected terrorists
72 Persons threatening
national security
Where the Minister certifies that the
continued presence in New Zealand of any person named in the
certificate constitutes a threat to national security, the
Governor- General may, by Order in Council, order the
deportation from New Zealand of that person.
73 Suspected
terrorists
(1) The Minister may, by order signed by the
Minister, order the deportation from New Zealand of any
person where the Minister has reason to believe—
(a) That
the person is a member of or adheres to any organisation or
group of persons that has engaged in, or has claimed
responsibility for, an act of terrorism in New Zealand;
or
(b) That the person has engaged in, or claimed
responsibility for, an act of terrorism in New Zealand;
or
(c) That the person—
(i) Is a member of or adheres to
any organisation or group of persons that has engaged in, or
has claimed responsibility for, an act of terrorism outside
New Zealand; or
(ii) Has engaged in, or claimed
responsibility for, an act of terrorism outside New Zealand—
and that, by reason thereof, or for any other reason, that
person's continued presence in New Zealand constitutes a
threat to public safety; or
(d) That the person will, if
permitted to remain in New Zealand, engage in, or facilitate
the commission of, any act of terrorism.
(2) The Minister
may at any time revoke a deportation order made under this
section.
Part IVA—Special procedures in cases involving
security concerns 114A Object of Part
The object of this
Part is to—
(a) Recognise that the New Zealand Security
Intelligence Service holds classified security information
that is relevant to the administration of this Act;
and
(b) Recognise that such classified security
information should continue to be protected in any use of it
under this Act or in any proceedings which relate to such
use; and
(c) Recognise that the public interest requires
nevertheless that such information be used for the purposes
of this Act, but equally that fairness requires some
protection for the rights of any individual affected by it;
and
(d) Establish that the balance between the public
interest and the individual's rights is best achieved by
allowing an independent person of high judicial standing to
consider the information and approve its proposed use;
and
(e) Recognise that the significance of the information
in question in a security sense is such that its approved
use should mean that no further avenues are available to the
individual under this Act and that removal or deportation,
as the case may require, can normally proceed immediately;
and thus
(f) Ensure that persons covered by this Act who
pose a security risk can where necessary be effectively and
quickly detained and removed or deported from New
Zealand.
114B Definitions
(1) In this Part, unless the
context otherwise requires,— certificate, or security risk
certificate, means a certificate made under section 114D:
classified security information means information about the
threat to security, public order, or public interest posed
by an identifiable individual which is held by the New
Zealand Security Intelligence Service, being information
which, in the opinion of the Director, cannot be divulged to
the individual in question or to other persons because
both—
(a) The information—
(i) Might lead to the
identification of, or provide details of, the source of the
information, the nature, content, or scope of the
information, or the nature or type of the assistance or
operational methods available to the New Zealand Security
Intelligence Service; or
(ii) Is about particular
operations that have been undertaken, or are being or are
proposed to be undertaken, in pursuance of any of the
functions of the Service or of another intelligence and
security agency
(as defined in section 2 of the
Intelligence and Security Committee Act 1996); or
(iii)
Has been provided to the New Zealand Security Intelligence
Service by the government of any other country or by an
agency of such a government, and is information that cannot
be disclosed by the Service because the government or agency
by which that information has been provided will not consent
to the disclosure; and
(b) Disclosure of the information
would be likely—
(i) To prejudice the security or defence
of New Zealand or the international relations of the
Government of New Zealand; or
(ii) To prejudice the
entrusting of information to the Government of New Zealand
on a basis of confidence by the government of another
country or any agency of such a government, or by any
international organisation; or
(iii) To prejudice the
maintenance of the law, including the prevention,
investigation, and detection of offences, and the right to a
fair trial; or
(iv) To endanger the safety of any
person:
Director, or Director of Security, means the
Director of Security within the meaning of the New Zealand
Security Intelligence Service Act 1969:
Inspector-General
means the Inspector-General of Intelligence and Security
established and appointed under the Inspector-General of
Intelligence and Security Act 1996, and, in any case where
the Inspector-General is not available, within a time that
will ensure that any review is completed with all reasonable
speed, to review a decision of the Director of Security,
includes a person appointed under subsection (2) to act as
Inspector-General: relevant security criterion, or security
criterion, has the meaning given by section 114C.
(2) The
Governor-General, on the recommendation of the Prime
Minister following consultation with the Leader of the
Opposition, may appoint a person who has previously held
office as a Judge of the High Court of New Zealand to act as
Inspector-General in any case where the Inspector-General is
not available, within a time that will ensure that any
review is completed with all reasonable speed, to review a
decision of the Director of Security under this Part.
(3)
The fact that a person appointed under subsection (2)
exercises or performs any function or power of the
Inspector-General under this Part is conclusive evidence of
the authority of the person to do so, and no person may in
any proceedings question whether the occasion requiring or
authorising the person to exercise or perform the function
or power has arisen or has ceased.
114C Relevant security
criteria
(1) For the purposes of this Part, relevant
security criterion means any of the following, as the case
may require: …
(d) A relevant refugee removal security
criterion within the meaning of subsection (5), where a
decision is to be taken as to whether a person in New
Zealand who is a refugee status claimant or refugee—
(i)
Who holds a temporary permit should have that permit revoked
and a removal order served; or
(ii) Who holds a limited
purpose permit should have that permit revoked and a removal
order served; or
(iii) Who is in New Zealand unlawfully
should be served with a removal order:
(e) A relevant
refugee deportation security criterion within the meaning of
subsection (6), where a decision is to be taken as to
whether a person in New Zealand who is a refugee status
claimant or refugee—
(i) Who holds a temporary permit or a
limited purpose permit or a residence permit should be
deported; or
(ii) Who is exempt under this Act from the
requirement to hold a permit should be deported; or
(iii)
Who is in New Zealand unlawfully should be deported….
(3)
The relevant removal security criteria are any of the
criteria set out in section 7(1)(e), (f), (g)(i), and (h)
(which relate to terrorism and danger to security or public
order).
(4) The relevant deportation security criteria are
as follows:
(a) That the person constitutes a threat to
national security in terms of section 72:
(b) Any of the
criteria set out in section 73(1) (which relates to
suspected terrorists).
(5) The relevant refugee removal
security criteria are a combination of any 1 or more of the
criteria listed in subsection (3) as relevant removal
security criteria, taken together with either or both of the
following criteria:
(a) That there are reasonable grounds
for regarding the person as a danger to the security of New
Zealand, in terms of Article 33.2 of the Refugee
Convention:
(b) That the person is a danger to the
community of New Zealand, having been convicted by a final
judgment of a particularly serious crime, in terms of
Article 33.2 of the Refugee Convention.
(6) The relevant
refugee deportation security criteria are a combination of
any 1 or more of the criteria listed in subsection (4) as
relevant deportation security criteria, taken together with
either or both of the following criteria:
(a) That there
are reasonable grounds for regarding the person as a danger
to the security of New Zealand, in terms of Article 33.2 of
the Refugee Convention:
(b) That the person is a danger to
the community of New Zealand, having been convicted by a
final judgment of a particularly serious crime, in terms of
Article 33.2 of the Refugee Convention.
(7) More than 1
relevant security criterion may be applicable at the same
time to a particular person, but nothing in this section
requires more than 1 relevant security criterion to be
applied under this Part in any particular case (except to
the extent that subsections (5) and (6) require a
combination of criteria in relation to refugees and refugee
status claimants).
114D Director of Security may provide
Minister with security risk certificate
(1) If the
Director of Security holds classified security information
that the Director is satisfied—
(a) Relates to an
identifiable individual who is not a New Zealand citizen and
about whom decisions are to be, or can be, made under this
Act; and
(b) Is credible, having regard to the source or
sources of the information and its nature, and is relevant
to the relevant security criterion; and
(c) Would mean,
when applying a relevant security criterion to the situation
of that person in light of that information, that the person
meets the criterion,— the Director may provide a security
risk certificate to the Minister to that effect.
(2) A
certificate must be in writing and must clearly identify the
relevant security criterion or criteria that it relates
to.
(3) In making a decision under subsection (1) the
Director may take into account any relevant information that
does not itself meet the definition of classified security
information.
(4) For the purposes of applying this section
and this Part, any reference to the belief or opinion of the
Minister in the wording of a particular security criterion
is to be read as including an alternative reference to the
belief or opinion of the Director.] 114E Minister may
require oral briefing from Director on contents of
certificate
(1) On receipt of a security risk certificate
the Minister may call for an oral briefing from the Director
on the contents of the certificate.
(2) The content of the
oral briefing is to be determined by the Director, and may
not be recorded by the Minister or on the Minister's
behalf.
(3) The Minister must not divulge the contents of
the briefing to any other person, and may not be called to
give evidence in any court or tribunal in relation to
anything coming to the Minister's knowledge as a result of
the briefing.]
114F Effect of certificate
(1) The
existence of a security risk certificate is evidence of
sufficient grounds for the conclusion or matter certified,
subject only to a decision of the Inspector- General on a
review conducted under section 114I, and the Minister may
rely on the certificate when making a decision under this
Part whether or not the Minister receives an oral briefing
under section 114E.
(2) Where the Minister does rely on a
certificate,—
(a) The Minister is not obliged to give
reasons for any decision made in reliance on the
certificate, and section 23 of the Official Information Act
1982 does not apply; and
(b) The Minister may not be
compelled in any proceedings to provide those reasons or any
information relating to them or to any briefing under
section 114E, other than the information contained in the
certificate itself.
114G Effect where Minister makes
preliminary decision to rely on certificate
(1) If the
Minister makes a preliminary decision to rely on a security
risk certificate in relation to an individual, the Minister
must give a notice to that effect to the chief executive of
the Department of Labour.
(2) The effect of the giving of
a notice under subsection (1) in the case of a person who is
not in New Zealand is—
(a) To require the processing of
any application or other matter in relation to the named
individual by a visa officer or immigration officer that is
currently under way to be suspended, despite any other
requirement of this Act; and
(b) To require the chief
executive to immediately ensure that the processing is in
fact stopped; and
(c) To require any matter under this Act
in relation to the named individual that is proceeding in an
Authority, [the Board,] the Tribunal, the District Court, or
the High Court to be suspended, notwithstanding anything in
this Act or any other enactment or rule of law; and
(d) To
require the chief executive to send to the person a copy of
the notice and to notify the person of the matters specified
in subparagraphs (i) to
(v) of subsection (4)(d).
(3)
The effect of the giving of a notice under subsection (1) in
the case of a person who is in New Zealand is—
(a) To
require the processing of any application or other matter in
relation to the named individual by an immigration officer
that is currently underway to be suspended, notwithstanding
any other requirement of this Act; and
(b) To require any
matter under this Act in relation to the named individual
that is proceeding in an Authority (other than the Refugee
Status Appeals Authority), [the Board,] the Tribunal, the
District Court, or the High Court to be suspended,
notwithstanding anything in this Act or any other enactment
or rule of law; and
(c) To require the detention of the
named individual by a member of the Police under subsection
(5).
(4) On receipt of a notice under subsection (1) in
respect of a person who is in New Zealand, the chief
executive must—
(a) Immediately ensure that the processing
of any application or other matter in relation to the named
individual by an immigration officer that is currently
underway is stopped; and
(b) Not accept for processing any
application or other matter in relation to the named
individual (other than applications or matters relating to
refugee status); and
(c) If appropriate, immediately
advise an Authority, [the Board,] the Tribunal, the District
Court, or the High Court, in the prescribed manner, that any
proceedings or matter under this Act in relation to the
named individual are to be stopped in accordance with
subsection (2); and
(d) Arrange for a member of the Police
to as soon as is practicable personally serve on the person
concerned a copy of the notice, along with written
information stating—
(i) That the Director of Security has
made a security risk certificate in relation to the person;
and
(ii) That the Minister has made a preliminary decision
to rely on the certificate; and
(iii) The relevant
security criterion or criteria that the certificate relates
to; and
(iv) The potential effect of the certificate;
and
(v) The rights of the person under section 114H
(including the right to be heard by the Inspector-General
under section 19(4) of the Inspector-General of Intelligence
and Security Act 1996), and the time within which the right
to a review must be exercised.
(5) Where a member of the
Police serves a notice on a person under subsection
(4),
that member or any other member of the Police must arrest
the person without warrant and place the person in
custody.
(6) A person arrested under subsection (5) must
be brought before a District Court Judge as soon as
possible, and may in no case be detained for more than 48
hours unless, within that period, a Judge issues a warrant
of commitment under section 114O for the continued detention
of the person in custody.] 114H Rights of person in respect
of whom security risk certificate given and relied on
(1)
A person on whom a Ministerial notice is served under
section 114G(4)(d) or who receives notification under
section 114G(2)(d) may, under section 114I, seek a review by
the Inspector-General of Intelligence and Security of the
decision of the Director of Security to make the security
risk certificate.
(2) A person who seeks a review under
section 114I may—
(a) Be represented, whether by counsel
or otherwise, in his or her dealings with the
Inspector-General; and
(b) Have access, to the extent
provided by the Privacy Act 1993, to any information about
the person other than the classified security information;
and
(c) Make written submissions to the Inspector-General
about the matter, whether or not the person also wishes to
be heard under section 19(4) of the Inspector-General of
Intelligence and Security Act 1996 (as applied by section
114I(6) of this Act).
(3) No action may be taken to remove
or deport the person on whom a notice served under section
114G(4)(d) remains in force unless and until section 114K
applies in respect of the person.
(4) No review
proceedings may be brought in any court in respect of the
certificate or the Director's decision to make the
certificate.]
114I Review of certificate
(1) A person on
whom a Ministerial notice is served under section 114G(4)(d)
may, within 5 days of its service, apply in the prescribed
manner for a review of the decision to make the security
risk certificate upon which the notice is based.
(2) A
person to whom a Ministerial notice is notified under
section 114G(2)(d) may, within 28 days of the notification,
apply in the prescribed manner for a review of the decision
to make the security risk certificate upon which the notice
is based.
(3) The review is to be conducted by the
Inspector-General of Intelligence and Security with all
reasonable speed and diligence.
(4) The function of the
Inspector-General on a review is to determine whether—
(a)
The information that led to the making of the certificate
included information that was properly regarded as
classified security information; and
(b) That information
is credible, having regard to the source or sources of the
information and its nature, and is relevant to any security
criterion; and
(c) When a relevant security criterion is
applied to the person in light of that information, the
person in question is properly covered by that criterion—
and thus whether the certificate was properly made or
not.
(5) In carrying out a review, the Inspector-General
may take into account any relevant information that does not
itself meet the definition of classified security
information.
(6) For the purposes of a review under this
section—
(a) The Inspector-General has all the powers
conferred on him or her by the Inspector-General of
Intelligence and Security Act 1996; and
(b) Sections 13,
19 (except subsections (1)(b) and (2)), 20, 21, 22, 23, 24,
26, 28, and 29 of that Act, with any necessary
modifications, apply to the review; and
(c) The chief
executive of the Department of Labour must provide the
Inspector-General with any file relating to the appellant,
and any other relevant information, that is held by the
chief executive.
(7) For the purposes of a review under
this section, the chief executive of the Department of
Labour must, as soon as practicable after finding out that
the review is lodged, notify to the Inspector-General the
name and contact details of an officer of the Department of
Labour who may accept service on behalf of the chief
executive of notices and matters relating to the
review.]
114J Result of review
(1) If on a review under
section 114I the Inspector-General decides that the security
risk certificate was properly made, the consequences set out
in section 114K apply following notification of the decision
to the person who sought the review.
(2) If the
Inspector-General decides that the certificate was not
properly made, the person who sought the review must be
released from custody immediately, and normal immigration
processes must resume in accordance with section 114L
following notification of the decision to the person who
sought the review.
(3) As soon as possible after reaching
a decision on the review, the Inspector- General must notify
the decision—
(a) To the person who sought the review, by
way of personal service in the case of a person in New
Zealand; and
(b) To the Minister; and
(c) By personal
service to the chief executive of the Department of Labour
or to such other officer of the Department of Labour as the
chief executive has notified to the Director-General { sic ?
Inspector-General } under section 114I(7) as a person who
can accept service on behalf of the chief executive;
and
(d) To the Director of Security.
(4) The decision of
the Inspector-General must be accompanied by reasons, except
to the extent that the giving of reasons would itself be
likely to prejudice the interests that this Part seeks to
protect in relation to the classified security
information.
(5) The Inspector-General may make
recommendations in relation to the payment of costs or
expenses of the person who has sought the review.]
114K
Effect of confirmation of certificate, or failure to seek
review
(1) Where—
(a) A security risk certificate has
been confirmed under section 114J(1); or
(b) The
certificate is confirmed to the extent that no review has
been applied for under section 114I within 5 days (or 28
days, in the case of a person who is not in New Zealand)
after the serving of a Ministerial notice under section
114G(2)(d) or (4)(d),— the Minister must make a final
decision within 3 working days whether to rely on the
confirmed certificate and accordingly to direct the chief
executive in writing to act in reliance on the certificate
under subsection (3).
(2) In making a final decision under
subsection (1) the Minister may seek information from other
sources and may consider matters other than the contents of
the certificate.
(3) On receipt of a direction from the
Minister under subsection (1) to rely on the confirmed
certificate, the chief executive must ensure that—
(a)
Where the person's case was before the Tribunal, an
Authority, [the Board,] the District Court, or High Court
before the certificate was made, the relevant body is
immediately notified in the prescribed manner of the
Inspector-General's determination or the failure to seek
review, so that it can dismiss the matter in reliance on
this section; or
(b) In any other case, an appropriate
decision is made in reliance on the relevant security
criterion as soon as practicable.
(4) In either event, the
chief executive must ensure that—
(a) Any visa or permit
that the person still holds is cancelled or revoked, without
further authority than this section, and in such case the
cancellation or revocation takes effect immediately and
without any right of appeal or review; and
(b) If a
removal order or deportation order is not already in
existence, an appropriate person who may make such an order
makes the relevant order immediately without further
authority than this section, and the person is removed or
deported, unless protected from removal or deportation under
section 114Q or section 129X; and
(c) In the case of a
person who is protected from removal or deportation by
section 129X, the person is released from custody and is
given an appropriate temporary permit.
(5) On receipt of
the appropriate notification under subsection (3)(a) by the
Tribunal, Authority, [Board,] District Court, or High Court
considering the matter, the proceedings in question
immediately lapse, and are to be treated as having been
dismissed.
(6) Where this section applies, the person who
is the subject of the certificate has no further right of
appeal or review under this Act.
(7) The Minister is not
obliged to give reasons for his or her decision to give a
direction under this section, and section 23 of the Official
Information Act 1982 does not apply in respect of the
decision.] 114L Resumption of normal immigration processes
where certificate not confirmed on review, or certificate or
Ministerial notice withdrawn
(1) This section applies in
respect of a person named in a Ministerial notice given
under section 114G if—
(a) The Inspector-General has given
notice under section 114J that the certificate was not
properly made; or
(b) The certificate is withdrawn under
section 114M; or
(c) The Ministerial notice is withdrawn
under section 114N, or the Minister decides under that
section that the relevant security criterion should not be
applied to the person in question, or decides under section
114N to revoke his or her decision to rely on the confirmed
certificate; or
(d) The Minister fails to make a final
decision in respect of the certificate within the period of
3 working days referred to in section 114K(1).
(2) Where
this section applies, the chief executive must ensure
that—
(a) The person is released from custody immediately;
and
(b) Any immigration processing or appeal that was
stopped in reliance on section 114G immediately recommences;
and
(c) The person is advised, if any application or other
matter had not been accepted for processing in reliance on
section 114G(4)(b), that the application or matter will now
be accepted for processing; and
(d) Where the person's
case was before the Tribunal, an Authority, [the Board,] the
District Court, or High Court before the certificate was
made, the relevant body is immediately notified in the
prescribed manner of the failure to confirm the certificate
or the withdrawal of the certificate or Ministerial notice
or other relevant Ministerial decision, so that it can
resume consideration of the matter that was before it.
(3)
Where any proceedings have lapsed under section 114K(5) by
reason of notification under section 114K(3)(a) of the
Minister's decision to rely on a confirmed security risk
certificate,—
(a) Those proceedings will nevertheless be
treated as not having lapsed if notification of a revocation
of that decision is received by the relevant Tribunal,
Authority, [the Board,] or Court under subsection (2)(d) of
this section; and
(b) Those proceedings continue
accordingly from the time of notification of the revocation,
with any time limits relating to the proceedings extended by
the period of any lapse under section 114K(5).
(4) Where
any immigration processing or appeal recommences under
subsection
(2)(b), or commences as a result of advice
given under subsection (2)(c), the officer or body concerned
is not to take into account the fact that the provisions of
this Part had been applied to the person.
114M Withdrawal
of security risk certificate by Director
(1) Nothing in
this Part prevents the Director from withdrawing a
certificate in relation to any person at any time by
notifying the Minister accordingly.
(2) If the Minister
has already relied on the certificate, the Minister must
immediately inform the chief executive of the Department of
Labour of the withdrawal.
(3) If the Director withdraws a
certificate, section 114L then applies.
114N Minister may
withdraw notice, or decline to use certificate
(1) Nothing
in this Part prevents the Minister from—
(a) Withdrawing a
notice given under section 114G at any time by notifying the
chief executive of the Department of Labour accordingly;
or
(b) Where a security risk certificate has been
confirmed by the Inspector- General, deciding nevertheless
that the relevant security criterion should not be applied
to the person in question, and notifying the chief executive
accordingly; or
(c) Revoking a decision under section 114K
to rely on the confirmed certificate, and notifying the
chief executive accordingly.
(2) On any notification to
the chief executive under subsection (1), section 114L then
applies….
114P Appeal on point of law from decision of
Inspector-General
(1) If the person named in a security
risk certificate that is confirmed by the Inspector-General
under section 114J is dissatisfied with the decision of the
Inspector-General as being erroneous in point of law, the
person may, with the leave of the Court of Appeal, appeal to
the Court of Appeal.
(2) Any such appeal must be
brought—
(a) In the case of a person who is in New Zealand
at the time of notification, within 3 working days of being
notified of the Inspector- General's decision under section
114J(3)(a):
(b) In the case of a person who is not in New
Zealand at the time of notification, within 28 days of being
notified of the Inspector-General's decision.
(3) The
Court of Appeal may, at any time on or before determining
the appeal, or determining whether or not to grant leave to
appeal, give such directions and make such orders as it
thinks appropriate in the circumstances of the case.
(4)
Subject to this section and this Part, section 66 of the
Judicature Act 1908, and any rules of Court, apply with any
necessary modifications to an appeal under this section as
if it were an appeal from a determination of the High
Court.
114Q Prohibition on removal or deportation of
refugee status claimant
Despite anything in this Part, no
person who is a refugee status claimant may be removed or
deported from New Zealand until the refugee status of that
person has been finally determined under Part 6A.
Part
VIA—Refugee determinations
129X Prohibition on removal or
deportation of refugee or refugee status claimant
(1) No
person who has been recognised as a refugee in New Zealand
or is a refugee status claimant may be removed or deported
from New Zealand under this Act, unless the provisions of
Article 32.1 or Article 33.2 of the Refugee Convention allow
the removal or deportation.
(2) In carrying out their
functions under this Act in relation to a refugee or refugee
status claimant, immigration officers must have regard to
the provisions of this Part and of the Refugee
Convention.
* # # # # * B:
INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY ACT
1996
19 Proceedings of
Inspector-General
(1) The Inspector-General, on commencing
an inquiry,—
(a) Shall notify the chief executive of the
relevant intelligence and security agency of both the
commencement of the inquiry and the nature of the inquiry;
and …
(3) If the inquiry relates to a complaint, the
Inspector-General may require the complainant to give on
oath any information relating to the complaint, and may for
that purpose administer an oath to the complainant.
(4)
The Inspector-General shall permit the complainant to be
heard, and to be represented by counsel or any other person,
and to have other persons testify to the complainant's
record, reliability, and character.
(5) In accordance with
the foregoing provisions of this section, the Inspector-
General may receive such evidence as the Inspector-General
thinks fit, whether admissible in a Court of law or
not.
(6) Every inquiry by the Inspector-General shall be
conducted in private.
(7) If at any time during the course
of an inquiry it appears to the Inspector- General that
there may be sufficient grounds for making any report or
recommendation that may adversely affect an intelligence and
security agency, or any employee of an intelligence and
security agency, or any other person, the Inspector-General
shall give to that intelligence and security agency,
employee, or person an opportunity to be heard.
(8)
Subject to the provisions of this Act, the Inspector-General
shall regulate his or her procedure in such a manner as the
Inspector-General thinks fit.
(9) Except on the ground of
lack of jurisdiction, no proceeding, report, or finding of
the Inspector-General shall be challenged, reviewed,
quashed, or called in question in any Court.
23 Powers of
Inspector-General in relation to inquiries
(1) The
Inspector-General may require any person who, in the
Inspector- General's opinion, is able to give information
relating to any matter to which an inquiry relates to
furnish such information, and to produce such documents or
things in the possession or under the control of that
person, as in the opinion of the Inspector-General are
relevant to the subject-matter of the inquiry.
(2) The
Inspector-General may summon and examine on oath any person
who in the opinion of the Inspector-General is able to give
any information relating to any matter to which an inquiry
relates, and may for the purpose administer an oath to any
person so summoned.
(3) Every such examination by the
Inspector-General shall be deemed to be a judicial
proceeding within the meaning of section 108 of the Crimes
Act 1961
(which relates to perjury).
(4) Subject to
subsection (5) of this section, every person who appears as
a witness before the Inspector-General shall have the same
privileges in relation to the giving of information, the
answering of questions, and the production of documents and
papers and things as witnesses have in Courts of law.
* # # # # *C: NEW ZEALAND
SECURITY INTELLIGENCE SERVICE ACT 1969
2
Interpretation Security means—
(a) The protection of New
Zealand from acts of espionage, sabotage, and subversion,
whether or not they are directed from or intended to be
committed within New Zealand:
(b) The identification of
foreign capabilities, intentions, or activities within or
relating to New Zealand that impact on New Zealand's
international well-being or economic well-being:
(c) The
protection of New Zealand from activities within or relating
to New Zealand that—
(i) Are influenced by any foreign
organisation or any foreign person; and
(ii) Are
clandestine or deceptive, or threaten the safety of any
person; and
(iii) Impact adversely on New Zealand's
international well-being or economic well-being:
(d) the
prevention of any terrorist act and of any activity relating
to the carrying out or facilitating of any terrorist act
terrorist act has the same meaning as in section 5(1) of the
Terrorism Suppression Act 2002
4 Functions Of New Zealand
Security Intelligence Service
(1) Subject to the control
of the Minister, the functions of the New Zealand Security
Intelligence Service shall be—
(a) To obtain, correlate,
and evaluate intelligence relevant to security, and to
communicate any such intelligence to such persons, and in
such manner, as the Director considers to be in the
interests of security:
(b) To advise Ministers of the
Crown, where the Director is satisfied that it is necessary
or desirable to do so, in respect of matters relevant to
security, so far as those matters relate to Departments or
branches of the State Services of which they are in
charge:
(ba) To advise any of the following persons on
protective measures that are directly or indirectly relevant
to security:
(i) Ministers of the Crown or Government
departments:
(ii) Public authorities:
(iii) Any person
who, in the opinion of the Director, should receive the
advice:
(bb) To conduct inquiries into whether particular
individuals should be granted security clearances, and to
make appropriate recommendations based on those
inquiries:
(bc) To make recommendations in respect of
matters to be decided under the Citizenship Act 1977 or the
Immigration Act 1987, to the extent that those matters are
relevant to security:
* # # # #
*D. TERRORISM SUPPRESSION ACT
2002
5 Terrorist act defined
(1) An act
is a terrorist act for the purposes of this Act if—
(a)
the act falls within subsection (2); or
(b) the act is an
act against a specified terrorism convention (as defined in
section 4(1)); or
(c) the act is a terrorist act in armed
conflict (as defined in section 4(1)).
(2) An act falls
within this subsection if it is intended to cause, in any 1
or more countries, 1 or more of the outcomes specified in
subsection (3), and is carried out for the purpose of
advancing an ideological, political, or religious cause, and
with the following intention:
(a) to induce terror in a
civilian population; or
(b) to unduly compel or to force a
government or an international organisation to do or abstain
from doing any act.
(3) The outcomes referred to in
subsection (2) are—
(a) the death of, or other serious
bodily injury to, 1 or more persons
(other than a person
carrying out the act):
(b) a serious risk to the health or
safety of a population:
(c) destruction of, or serious
damage to, property of great value or importance, or major
economic loss, or major environmental damage, if likely to
result in 1 or more outcomes specified in paragraphs (a),
(b), and
(d):
(d) serious interference with, or serious
disruption to, an infrastructure facility, if likely to
endanger human life:
(e) introduction or release of a
disease-bearing organism, if likely to devastate the
national economy of a country.
(4) However, an act does
not fall within subsection (2) if it occurs in a situation
of armed conflict and is, at the time and in the place that
it occurs, in accordance with rules of international law
applicable to the conflict.
(5) To avoid doubt, the fact
that a person engages in any protest, advocacy, or dissent,
or engages in any strike, lockout, or other industrial
action, is not, by itself, a sufficient basis for inferring
that the person—
(a) is carrying out an act for a purpose,
or with an intention, specified in subsection (2); or
(b)
intends to cause an outcome specified in subsection
(3).
13 Participating in terrorist groups
(1) A person
commits an offence who participates in a group or
organisation for the purpose stated in subsection (2),
knowing that the group or organisation is—
(a) an entity
that is for the time being designated under this Act as a
terrorist entity; or
(b) an entity that carries out, or
participates in the carrying out of, 1 or more terrorist
acts.
(2) The purpose referred to in subsection (1) is to
enhance the ability of any entity (being an entity of the
kind referred to in subsection (1)(a) or (b)) to carry out,
or to participate in the carrying out of, 1 or more
terrorist acts.
(3) A person who commits an offence
against subsection (1) is liable on conviction on indictment
to imprisonment for a term not exceeding 14 years.
22
Final designation as terrorist or associated entity
(1)
The Prime Minister may designate an entity [a person, group,
trust, partnership, or fund, or an unincorporated
association or organisation] as a terrorist entity under
this section if the Prime Minister believes on reasonable
grounds that the entity has knowingly carried out [planning
or other preparations to carry out the act, whether it is
actually carried out or not, a credible threat to carry out
the act, whether it is actually carried out or not, an
attempt or the carrying out of the act], or has knowingly
participated in the carrying out of, 1 or more terrorist
acts.
(2) On or after designating an entity as a terrorist
entity under this Act, the Prime Minister may designate 1 or
more other entities as an associated entity under this
section.
(3) The Prime Minister may exercise the power
given by subsection (2) only if the Prime Minister believes
on reasonable grounds that the other entity—
(a) is
knowingly facilitating the carrying out of 1 or more
terrorist acts by, or with the participation of, the
terrorist entity (for example, by financing those acts, in
full or in part); or
(b) is acting on behalf of, or at the
direction of,—
(i) the terrorist entity, knowing that the
terrorist entity has done what is referred to in subsection
(1); or
(ii) an entity designated as an associated entity
under subsection
(2) and paragraph (a), knowing that the
associated entity is doing what is referred to in paragraph
(a); or
(c) is an entity (other than an individual) that
is wholly owned or effectively controlled, directly or
indirectly, by the terrorist entity, or by an entity
designated under subsection (2) and paragraph (a) or
paragraph (b).
(4) Before designating an entity as a
terrorist or associated entity under this section, the Prime
Minister must consult with the Attorney-General about the
proposed designation.
* # # # #
*E: CONVENTION RELATING TO THE STATUS OF
REFUGEES
189 UNTS 150, entered into force
22 April 1954
PREAMBLE
The High Contracting
Parties,
Considering that the Charter of the United
Nations and the Universal Declaration of Human Rights
approved on 10 December 1948 by the General Assembly have
affirmed the principle that human beings shall enjoy
fundamental rights and freedoms without
discrimination.
Considering that the United Nations has,
on various occasions, manifested its profound concern for
refugees and endeavoured to assure refugees the widest
possible exercise of these fundamental rights and
freedoms.
Considering that it is desirable to revise and
consolidate previous international agreements relating to
the status of refugees and to extend the scope of and the
protection accorded by such instruments by means of a new
agreement.
Considering that the grant of asylum may place
unduly heavy burdens on certain countries, and that a
satisfactory solution of a problem of which the United
Nations has recognised the international scope and nature
cannot therefore be achieved without international
co-operation.
Expressing the wish that all States,
recognising the social and humanitarian nature of the
problem of refugees, will do everything within their power
to prevent this problem from becoming a cause of tension
between States.
Noting that the United Nations High
Commissioner for Refugees is charged with the task of
supervising international conventions providing for the
protection of refugees, and recognising that the effective
co-ordination of measures taken to deal with this problem
will depend upon the co-operation of States with the High
Commissioner.
Have agreed as follows:
CHAPTER 1 –
GENERAL PROVISIONS
Article 1 – Definition of the term
“refugee”
A. For the purposes of the present Convention,
the term “refugee” shall apply to any person who:
(i) Has
been considered a refugee under the Arrangements of 12 May
1926 and 30 June 1928 or under the Conventions of 28 October
1933 and 10 February 1938, the Protocol of 14 September 1939
or the Constitution of the International Refugee
Organisation;
(ii) Decisions of non-eligibility taken by
the International Refugee Organisation during the period of
its activities shall not prevent the status of refugee being
accorded to persons who fulfil the conditions of paragraph 2
of this section;
(iii) As a result of events occurring
before 1 January 1951 and owing to well-founded fear of
being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political
opinion, is outside the country of his nationality and is
unable, or owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a
nationality and being outside the country of his former
habitual residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it.
(iv) In
the case of a person who has more than on nationality, the
term “the country of his nationality” shall mean each of the
countries of which he is a national, and a person shall not
be deemed to be lacking the protection of the country of his
nationality if, without any valid reason based on
well-founded fear, he has not availed himself of the
protection of one of the countries of which he is a
national. … F. The provisions of this Convention shall not
apply to any person with respect to whom there are serious
reasons for considering that.
(a) He has committed a crime
against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make
provision in respect of such crimes;
(b) He has committed
a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee;
(c)
He has been guilty of acts contrary to the purposes and
principles of the United Nations.
Article 32 –
Expulsion
1. The Contracting States shall not expel a
refugee lawfully in their territory save on grounds of
national security or public order.
2. The expulsion of
such a refugee shall be only in pursuance of a decision
reached in accordance with due process of law. Except where
compelling reasons of national security otherwise require,
the refugee shall be allowed to submit evidence to clear
himself, and to appeal to and be represented for the purpose
before competent authority or a person or persons specially
designated by the competent authority.
3. The Contracting
States shall allow such a refugee a reasonable period within
which to seek legal admission into another country. The
Contracting States reserve the right to apply during that
period such internal measures as they may deem
necessary.
Article 33 – Prohibition of expulsion or return
(“refoulement”)
1. No Contracting State shall expel or
return (“refouler”) a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would
be threatened on account of his race, religion, nationality,
membership of a particular social group or political
opinion.
2. The benefit of the present provision may not,
however, be claimed by a refugee whom there are reasonable
grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a
final judgment of a particularly serious crime, constitutes
a danger to the community of that country.
Article 42 –
Reservations
1. At the time of signature, ratification or
accession, any State may make reservations to articles of
the Convention other than to articles 1, 3, 4, 16(1), 33,
36-46 inclusive.
2. Any State making a reservation in
accordance with paragraph 1 of this article may at any time
withdraw the reservation by a communication to that effect
addressed to the Secretary-General of the United
Nations.
* # # # # *F:
VIENNA CONVENTION ON THE LAW OF
TREATIES
1155 UNT 5331 entered into force
27 January 1980
Article 31 General rule of
interpretation
(1) A treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of
its object and purpose.
(2) The context for the purpose of
the interpretation of a treaty shall comprise, in addition
to the text, including its preamble and annexes:
(a) any
agreement relating to the treaty which was made between all
the parties in connection with the conclusion of the
treaty;
(b) any instrument which was made by one or more
parties in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to
the treaty.
(3) There shall be taken into account,
together with the context:
(a) any subsequent agreement
between the parties regarding the interpretation of the
treaty or the application of its provisions;
(b) any
subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international
law applicable in the relations between the parties.
(4) A
special meaning shall be given to a term if it is
established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had
to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from
the application of article 31, or to determine the meaning
when the interpretation according to article 31:
(a)
leaves the meaning ambiguous or obscure; or
(b) leads to a
result which is manifestly absurd or unreasonable.
Article
53 Treaties conflicting with a peremptory norm of general
international law (jus cogens)
A treaty is void if, at the
time of its conclusion, it conflicts with a peremptory norm
of general international law. For the purposes of the
present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the
international community of States as a whole as a norm from
which no derogation is permitted and which can be modified
only by a subsequent norm of general international law
having the same character.
Article 64 Emergence of a new
peremptory norm of general international law (jus
cogens)
If a new peremptory norm of general international
law emerges, any existing treaty which is in conflict with
that norm becomes void and terminates.
ENDS
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