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Breen, Claire --- "The human rights of asylum-seekers in New Zealand" [2005] NZYbkNZJur 7; (2005) 8.1 Yearbook of New Zealand Jurisprudence 119

Last Updated: 16 April 2015

The Human Rights of Asylum-Seekers in
New Zealand

CLAIRE BREEN*

INTRODUCTION

The heightened tension between human rights law and the legal measures underpinning national security is illustrated in New Zealand by the large body of jurisprudence generated by the detention of one asylum-seeker, Ahmed Zaoui, on the grounds that he posed a threat to national security. Although the cases arising from the challenges to the legality of his detention have, broadly speaking, followed two separate strands, these strands of litigation became intertwined by virtue of the fact that they were both concerned with the need to determine the extent to which the human rights of asylum-seekers are protected in New Zealand. The first strand of litigation constituted Ahmed Zaoui' s challenge to the legality of his continued detention the basis that such detention was arbitrary and thus a violation of his human rights. The second strand concerned whether, and to what extent, principles of human rights law should inform any determination of his status as a security risk. Both cases have required the New Zealand Courts to give careful consideration to both the domestic legal framework and the international legal framework governing the rights of asylum-seekers. Although the Zaoui cases post-date the terrorist attacks of September 11, 2001, the law that gives rise to the cases actually precedes the attacks by years and, in the case of some of the relevant international law, by decades. One of the central themes of the legal issues arising in the Zaoui cases is that of 'risks to national security' which may act to limit the rights of refugees. What is of concern in terms of human rights law is the limited obligation upon States, such as New Zealand, to reveal the reasons that give rise to the classification of an individual as a risk to national security

Dr. Claire Breen, Law School, University of Waikato, Hamilton, NZ

120 Yearbook of New Zealand Jurisprudence Vol 8.1

and thereby allow that individual to mount a more effective challenge to such a classification.' The Zaoui cases do not deal with this particular concern in any great detail and although the cases provide a useful framework by which to consider the human rights of refugees in New Zealand, concern remains over the extent to which 'national security' issues overwhelm human rights.

THE INTERNATIONAL LEGAL FRAMEWORK RELATING TO REFUGEES.

The Convention Relating to the Status of Refugees 1951 (the Refugee Convention)2 forms the cornerstone of international law governing asylum-seekers. Broadly speaking, Article 1A(2) defines a refugee as someone who:

owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that country...3

The Convention also spells out people or groups of people who are not covered by the Convention including those who have committed war crimes or crimes against humanity or who have committed a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee.'

This element of the Zaoui litigation is discussed in John Hopkins elsewhere in this special edition.

2

The Convention Relating to the Status of Refugees 1951. 189 UNTS 137.

  1. The Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (the 1967 Protocol) provides for this broader definition with Parties who have ratified the Protocol agreeing to the removal the temporal and geographical limitations contained in following original wording of Article 1, 'as a result of events occurring before 1 January 1951' and 'as a result of such events'.

4 Article 1F.

The Refugee Convention lays down basic minimum standards for the protection of refugees. It outlines a refugee's rights including the right to freedom of religion and movement, the right to work, education and accessibility to

travel documents. The Convention also highlights a
refugee's obligations to the State in which asylum is being sought. In broad terms, the refugee must respect the laws and

regulations of the country of asylum. However, the
Convention is not confined to enumerating the rights of refugees, it also enumerates the rights of States dealing with refugees. Accordingly, Article 31(2) allows States to limit the movements of such refugees where necessary with the proviso that such restrictions are only be applied until their status in the country is regularised or they obtain admission into another country.

States may determine more precisely the manner in, and extent to which, such protection is to be afforded to refugees by way of national legislation. Thus, Article 32 of the Convention provides for the expulsion of refugees for reasons of national security or public order. However, such decisions must be 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.

However, the margin of appreciation granted to States is limited by the fact that certain provisions of the Convention are considered so fundamental that no reservations may be made to them. Included in such provisions is the principle of non-refoulement, i.e., that no Contracting State shall expel or return ("refouler") a refugee, against his or her will, in any manner whatsoever, to a territory where he or she fears persecution or where his life or freedom would be threatened on account of his or her race, religion, nationality,

122 Yearbook of New Zealand Jurisprudence Vol 8.1

membership of a particular social group or political opinion.' This principle is also regarded as binding States that have not ratified the Refugee Convention from involuntarily returning an asylum-seeker. However, the Refugee Convention contains an exception to the principle of non-refoulement as Article 33(2) allows for the expulsion of refugees where the State regards them as a risk to national security.

Although the Refugee Convention is the primary source of international law regarding the rights of refugees, other basic human rights principles also pertain, especially with regard to the detention of asylum-seekers. In spite of the fact that the Convention explicitly recognises the rights of States to limit the freedom of movement of asylum-seekers, such limitation must conform with the basic human rights to liberty and the right to be free from arbitrary detention. In this connection particular regard must be had to Articles 12 and 13 of the International Covenant on Civil and Political Rights.' Article 12(1) provides that, "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement" with this right not being subject to any restrictions except those which are provided by law, are necessary to protect, inter alia, national security, with the requirement that such restrictions be consistent with the other rights recognised in the Covenant.' According to the Human Rights Committee, the question of whether an alien is "lawfully" within the territory of a State is a matter to be governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the States international obligations. In that connection, the Committee has held in, Celepli v. Sweden,' that an alien who entered the State illegally, but whose status has been regularised, must be considered to be lawfully within the territory for the purposes of Article 12.

5

Article 33(1).

6

International Covenant on Civil and Political Rights, U.N. G.A. Res. 2200 (XXI), 21 UN GAOR, Supp. (No. 16) 52, U.N. Doc. A16316 (1966).

'

Article 12(3).

Celepli v. Sweden, in Communication No. 456/1991, para. 9.2.

Once a person is lawfully within a State, any restrictions on his or her rights guaranteed by Article 12, paragraphs 1 and 2, as well as any treatment different from that accorded to nationals, have to be justified under the rules provided for by article 12, paragraph 3.9

Furthermore, Article 13 of the ICCPR provides:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

lo

Equally relevent is Article 9(1) of the ICCPR which provides that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure

as are established by law.11

Reference may also be made to the right to be free from torture, cruel, inhuman and or degrading treatment or punishment, a right recognized as customary international law and conventional human rights law. Thus, the Universal Declaration and the ICCPR both provide that no one shall be subjected to torture or to cruel, inhuman or degrading

  1. General Comment No. 27: Freedom of movement (Art.12): 02/11/99. CCPR/C/21/Rev.1/Add.9, para. 4. See also, General Comment No. 15: The position of aliens under the Covenant: 11/04/86. CCPR General Comment No. 15. (General Comments), para. 8.

10 See, in general, General Comment 15, ibid.

See also, the Human Rights Committee, General Comment 21: Replaces general comment 9 concerning humane treatment of persons deprived of liberty (Art. 10): 10/04/92.

124 Yearbook of New Zealand Jurisprudence Vol 8.1

treatment or punishment.' These rights are also regarded as being non-derogable.13 The prohibition against torture etc is expanded upon by the United Nations Convention Against Torture 1989 (CAT) with its more elaborate definition of what constitutes torture' and its statement that torture is never justifiable.'

THE RIGHTS OF ASYLUM-SEEKERS AND REFUGEES IN NEW ZEALAND.

International instruments relating to the rights of refugees have not incorporated the issue of granting of asylum, which continues to be at the discretion of individual governments. New Zealand acceded to the Refugee Convention on 30 June 1960 and later acceded to the 1967 Protocol Relating to the Status of Refugees ("the Protocol") on 6 August 1973. In acceding to both the Convention and the Protocol, New Zealand acknowledges all United Nations conventions relevant to determining refugee status, as well as international instruments of law used to determine refugee status. The provisions of international law regarding the rights of refugees and asylum-seekers has found expression in the Immigration Act 1987 (IA), as well as the New Zealand Bill of Rights Act 1990 (BORA). The latter piece of legislation also constitutes the basis for the incorporation into domestic law of the civil and political rights referred to above.

With particular reference to the rights of asylum-seekers, refugee status is to be determined in accordance with Part 6A of the IA, where the object of that part of the Act is described as being the provision of a statutory basis for the system by which New Zealand ensures that it meets its obligations

12

UDHR, Article 5 and ICCPR, Article 7.

13

See, the Human Rights Committee's General Comment No. 5: Derogation of rights (Art. 4): 31/07/81; and General Comment No. 20: Replaces general comment 7concerning-prohibition of torture and cruel treatment or punishment (Art. 7): 10/03/92.

14

Article 1.

15 Art 2(2).

2005 The Human Rights of Asylum-Seekers in New Zealand 125

under the Refugee Convention.' The provisions of Part GA must also be read in light of New Zealand' s rights regarding expulsion of refugees that are incorporated into Parts 3 and 4 of the Act, in particular Part 3's provisions regarding the deportation of persons threatening national security, and suspected terrorists which are of particular relevance to the cases at hand. New Zealand's obligations under the Refugee Convention provided for in Part 6A must also be read in light of Part 4A of the IA with its special procedures in cases involving security concerns. Specifically, ss 114D and 114G of the IA allow for the (continued) detention of refugees in cases of where they are regarded as a security risk.

LEGITIMATE RESTRICTIONS ON THE RIGHT TO FREEDOM OF MOVEMENT OR ARBITRARY DETENTION? ATTORNEY-GENERAL

V AHMED ZAOUI.

It is this national and international framework that, in essence, gives rise to the first strand of cases arising from the detention of Ahmed Zaoui who had initially been detained under a warrant of commitment issued under s 128(7) of the IA which relates to the detention of persons arriving unlawfully in New Zealand. Although Mr Zaoui's arrival into New Zealand was unlawful, his legal position was `regularised', to use the words of the Human Rights Committee, by virtue of the fact that the Refugee Status Appeals Authority (RSAA) granted him refugee status in August 2003.'7 However, on 20 March 2003, prior to the RSAA's hearing of his appeal, the Director of Security provided a security risk certificate under the s 114D(1) of the IA and the Minister for Immigration made a preliminary decision to rely upon it in accordance with s 114G(1). In other words, Mr Zaoui, on the basis of classified information, was to be regarded as constituting a security risk to New Zealand. As a consequence, and in line with New Zealand's international obligations under the s 33(2) of the Refugee

16 In particular, ss 129A, 129C and 129D.

  1. Refugee Status Appeals Authority New Zealand; Refugee Appeal No. 74540, 1 August 2003, para. 456, 979-981.

126 Yearbook of New Zealand Jurisprudence Vol 8.1

Convention and (to a questionable extent) Article 13 of the ICCPR, and in addition to the s 72 of the IA, Mr Zaoui was to be deported, irrespective of the likely negative consequences of any subsequent refoulement to Algeria. In response, Mr Zaoui sought a review of the Director's certificate under s 1141 of the Act.

On 28 March 2003, the District Court at Manakau issued a warrant of commitment under s 1140(1)(b) which allowed for the continued detention of Mr Zaoui given his perceived security risk. It was this initial issuing of the warrant of detention that gave rise to one of the strands of human rights related litigation on behalf of Ahmed Zaoui. In essence, Mr Zaoui sought to challenge the lawfulness of his continued detention under the special procedures in cases involving security concerns contained in Part 4A of the IA. In particular, he sought a recall and/or amendment from the District Court of the warrant of commitment authorising his continued detention and also sought to be released on bail or on an order of habeas corpus from the High Court. In other words, the applicant sought to challenge the limitations that had been imposed upon his right to freedom of movement.

As previously indicated, national and international law whether relating to refugees or human rights in general recognise that this right may only be subject to such restrictions which are provided by law and which are necessary to protect, in this context, national security. With regards to the ICCPR, such restrictions must also be consistent with the other rights recognised in the Covenant. In the context of domestic law, Mr Zaoui argued that the relevant portions of the IA could not be interpreted as excluding his application for bail or conditional release. Thus, in terms of New Zealand's obligations arising from the provisions of international refugee and human rights law, the 1A is to be interpreted broadly so as to minimise any restrictions on the freedom of movement of the applicant. The interrelationship between domestic law and New Zealand's international obligations was reiterated in more arguments in favour of Mr Zaoui's release on bail,

2005 The Human Rights of Asylum-Seekers in New Zealand 127

specifically with regard to the right to be free from arbitrary detention. The argument advanced by Counsel was that the delays in the review process had rendered his detention illegitimate and therefore arbitrary. Both the High Court and the Court of Appeal determined that the statutory framework of Part 4A of the Immigration Act was aimed at the efficient resolution of security issues and precluded any enquiry into matters underlying a security risk certificate, and that the provisions of s 1140 in particular did not provide for the conditional release of persons detained and an inherent right to grant bail was thus excluded by that part of the IA. Given such findings, continued detention was therefore to be regarded as justifiable and not amounting to arbitrary detention.

Mr Zaoui appealed to the Supreme Court which identified the issue regarding the restrictions on the freedom of movement arising out of the continued detention of Mr Zaoui as being whether the High Court had jurisdiction or power to order the appellant's release on bail from detention under a warrant issued pursuant to s1140 of the Act. The Supreme Court overturned the decisions of both lower Courts and found that the High Court did have such jurisdiction stating:

Unless excluded by statute, the inherent jurisdiction of the High Court to grant bail may be directly invoked whenever someone is detained under any enactment pending trial, sentence, appeal, determination of legal status, or (in immigration cases) removal or deportation from New Zealand. The jurisdiction can be exercised whether or not the High Court is seized of proceedings challenging the lawfulness of the detention.'

The Supreme Court stated the common law jurisdiction that was exercisable by both the District and High Courts' could be excluded by statute but only where such statutory exclusion was explicit.' To that end, the Supreme Court

18

Zaoui v The Attorney-General and Ors SC SC CIV 13/2004 [25 November 20041, para 31.

19 Ibid, para. 33.

20 Ibid, para.s 37-38.

128 Yearbook of New Zealand Jurisprudence Vol 8.1

judges made reference to the House of Lords decision in R v Spilsbury and the judgments of Lord Russell CJ and Kennedy J that there is a presumption against restricting, "the ancient and important jurisdiction of this Court to admit bail."' According to Lord Russell CJ:

This inherent power to admit bail is historical, and has long been exercised by the Court, and if the Legislature had meant to curtail or circumscribe this well-known power, their intention would have been carried out by express enactment.22

With regard to habeas corpus, the Supreme Court noted that bail could be granted, and historically had been granted by way of, or as a response to, habeas corpus applications where the granting of bail was an exercise of the Court's inherent common law power to grant bail. According to the Supreme Court, therefore, the High Court's inherent substantive jurisdiction to grant bail could still be invoked today (where not modified by statute) by different processes including the procedure of habeas corpus." Similarly, in terms of the question of whether Part 4A of the IA precluded the exercise of inherent jurisdiction to grant bail, the Supreme Court stated that, "clear statutory wording is required." Thus, within the context of domestic or common law, the Court's finding as to the broad power to grant bail and/or release persons in response to habeas corpus applications indicate that the right to freedom of movement is to be accorded broad protection. Any restrictions on this right, whether accorded to an asylum-seeker or other individual, could be justifiable only in the narrowest of circumstances and these were that the Court's jurisdiction to grant bail was to be subsumed by unequivocal legislative enactment only. Moreover, the Supreme Court added that legislation should be interpreted consistently with New Zealand's international legal obligations and referred to the requirement contained in

21 [1898] UKLawRpKQB 156; [1898] 2 QB 615, at 625.

22

Ibid, at 622.

23 Zaoui, supra note 17, para. 41.

24

Ibid, at para. 44.

2005 The Human Rights of Asylum-Seekers in New Zealand 129

Article 31(2) of the Refugee Convention that only restrictions that are deemed necessary are to be upon the movement of certain refugees and that, accordingly, those refugees that are detained should be entitled to challenge their detention. The Supreme Court recognized that national security could be one reason for detention but that such reasons had to be tested and that security could not provide a basis for a blanket exclusion of such cases and that strong statutory language would be required to defeat that entitlement.'

It was against this requirement of strong statutory language that the Supreme Court considered the manner in which Part 4A dealt with the issue of detention. It identified some omissions in the wording of Part 4A, for example, the lack of express provision for review of the detention, no matter how long it may continue and in what circumstances. Omissions such as this became significant when they affected the right of refugees under the Convention to be detained only to the extent that is necessary. According to the Court, where statutory provisions appeared less than comprehensive the courts had to do their best to give them workable meaning. In the present context, the Court stated that it was "of prime importance that any powers of detention be approached in light of the fundamental right, long recognised under the common law, of liberty for all persons subject only to such limits as are imposed by law."' Accordingly, the Supreme Court stated:

Consideration of the provisions of Part 4A should therefore proceed on the basis that there is a jurisdiction to grant bail in a suitable case unless that is clearly excluded, expressly or by necessary implication. In Part 4A it is not expressly excluded, as it is in ss 128(15) and 128B(12).27

The Supreme Court also rejected the finding of the lower Courts that bail was precluded by necessary implication from

25 Ibid, para. 44.

26 Ibid, at para. 52.

27 Ibid, at para. 53.

130 Yearbook of New Zealand Jurisprudence Vol 8.1

the provisions of Part 4A. It acknowledged the very real difficulties that could arise in cases such as the present but it also stated that such difficulties could not be said to dictate a conclusion that the jurisdiction to grant bail must be inconsistent with detention ordered on the basis of a security risk certificate. The Supreme Court did not see any incompatibility in a person being regarded as a danger to the security of New Zealand within the statutory security criteria if allowed to remain in this country, on the one hand, and the release of that person under conditions fixed and supervised by the courts for a limited period whilst the statutory processes are completed, on the other.

The Court continued its theme of broad statutory interpretation with regard to s 1140(2) and stated that even if it was to be construed as contemplating only outright release on an application for habeas corpus, it could not to be inferred from such an interpretation that bail on that or any other form of application was therefore precluded. Similarly, in the Supreme Court's opinion, there was no need to confine the words in s 1140(3) "or if for any other reason the person is to be released" to the reasons expressly set out in other provisions of Part 4A. Neither did the provisions that expressly required release in certain circumstances necessarily imply mandatory detention until those circumstances arose. The references to release in the specified circumstances were quite capable of being read as applying in the event that the person had not otherwise been released. Accordingly, the Supreme Court was not convinced that Part 4A contained the necessary implication that, in all circumstances, the inherent jurisdiction of the High Court to grant bail was excluded. Where bail became an issue with regard to persons who were subject to security risk certificates, the matter of security would be of major importance and the formulation of bail conditions would need to take that into account. In that respect, provisions in other Parts of the Act directed to conditional release in various circumstances could provide some guidance.' The Supreme

28 lbid,

para.s 65-69.

2005 The Human Rights of Asylum-Seekers in New Zealand 131

Court noted that Mr Zaoui's preferred outcome was bail. Given that, and its conclusion that the High Court had inherent jurisdiction to grant bail, the Supreme Court thought it unnecessary to consider the alternative argument for Mr Zaoui that his detention had become arbitrary in terms of s 22 of the Bill of Rights Act as any grant of bail would alleviate those circumstances relied upon as making his continued detention arbitrary.'

NON-REFOULEMENT, RISKS TO NATIONAL SECURITY AND THE HUMAN RIGHTS OF REFUGEES IN NEW ZEALAND.

The second strand of human rights generated litigation related to the issuing, and subsequent application for review, of the security risk certificate issued by the New Zealand security services. In an appeal process that culminated in a Supreme Court hearing, that Court had to consider whether the national security limit placed by Article 33(2) on the bar on deportation stated in Article 33(1) stood alone as an exception to the prohibition on refoulement or whether Article 33(2) required or permitted consideration of the dangers to the individual by reference to human rights law in excess of the express terms of article 33(2) and, consequently, whether the second paragraph of Article 33(2) incorporated some element of proportionality or balancing. Thus, in terms of the extent of the right of refugees in New Zealand not be refouled, the question was whether a decision to deport a refugee on the basis that he or she constituted a threat to national security should take into account, and where necessary be mitigated by, the threat of arbitrary death and/or torture should they be returned to their country of origin. The Supreme Court rejected such a balancing approach in favour of a 'sequential' reading of Article 33 as incorporated into New Zealand domestic law by Parts 3 and 4A of the IA. In terms of the plain meaning and purpose of Article 33, the consequence of the adoption of a sequential reading was that neither paragraph was to be regarded as being related in any proportionate or balancing way. In the

29 Ibid, para. 70.

opinion of the Court, the latter interpretative approach was to be avoided unless it was plainly called for. Accordingly, should the standard demanded by Article 33(2) be satisfied, it would defeat the prohibition on the expulsion of a refugee whose life or freedom might be threatened as contained in Article 33(4' In support of such a reading, the Supreme Court noted that a 2003 roundtable discussion on the Refugee Convention confirmed the distinct and sequential reading of Article 33 without any reference to balancing or proportionality. In fact, according to the Court, such an approach was rejected by a UNHCR consultation on the meaning to be given to Article 33 and that relevant UK, US and Australian legislation all rejected proportionality as an element of Article 33.31

The Supreme Court found further support for this approach as it noted that the drafting history of the Refugee Convention did not support a proportionality or balancing proposition.' Any drafting discussion related to any possible restrictions that might be imposed upon the right of States to decide whether the danger entailed to refugees by expulsion outweighed the menace to public security should they be allowed to stay centred on the requirement that States have reasonable or sufficient grounds for regarding that any refugee was to be considered to be a danger to the security of that country. Such discussion did not centre on the nature of the balance, if any, to be struck. Moreover, the Court noted that subsequent cases and commentaries neither advanced nor supported such an approach. 33 Thus, the Supreme Court concluded that:

the judgment or assessment to be made under article 33.2 is to be made in its own terms, by reference to

30

Attorney-General v Zaoui SC CIV 19/2004 [2005] NZSC 38, 21 June 2005, para. 12.

31

Ibid, para. 13.

32

Article 32 of the Vienna Convention allows for the drafting history of a treaty could be relied upon to assist in determining the meaning to be given to a particular treaty article.

33

Ibid, para. 14.

2005 The Human Rights of Asylum-Seekers in New Zealand 133

danger to the security, in this case, of New Zealand, and without any balancing or weighing or proportional reference to the matter dealt with in article 33.1, the threat, were Mr Zaoui to be expelled or returned, to his life or freedom on the proscribed grounds or the more specific rights protected by the New Zealand Bill of Rights Act 1990 read with the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Paragraph (2) of article 33 of the Refugee Convention states a single standard.34

Thus, in terms of the actual meaning to be given to Article 33(2) and its requirement of a danger to the security (of New Zealand) or a danger to the community (of New Zealand), the Supreme Court, in relying upon the Supreme Court of Canada's decision in Suresh,' as well as the New Zealand Court of Appeal's decision in Choudry v Attorney-General' formulated the following test:

to come within article 33.2, the person in question must be thought on reasonable grounds to pose a serious threat to the security of New Zealand; the threat must be based on objectively reasonable grounds and the threatened harm must be substantia1.37

The Supreme Court then considered the question of whether Article 33(2) had been amended by the prohibition on refoulement contained in Article 3(1) of CAT and by the prohibitions on arbitrary death and/or torture contained in Articles 6(1) and 7 of the ICCPR which have been interpreted to cover the actions of States who may be considering the deportation, treaties to which New Zealand is a party. The Court relied upon Article 30 of the Vienna Convention on the Law of Treaties 1969 which called for a successive reading of the later treaties's and which allowed the Court to conclude

34 Ibid, at para. 15

35

Suresh v Canada (Minister of Citizenship & Immigration) [2002] 1 SCR 3, paras [80]92].

36

[1999] 2 NZLR 582, 594-595.

37 Zaoui, supra, note 29, at para. 18.

38 Ibid, para. 23.

that the later human rights treaties had not amended Article 33(2) of the Refugee Convention. Moreover, although the prohibition on torture is ius cogens, and the ICCPR and CAT set out absolute prohibitions on torture, such prohibitions were, in the Court's opinion, to be regarded as being distinct to the prohibition on refoulement to torture as again, "the obligations are successive, not merged."' Therefore, according to the Supreme Court, Article 33(2) under Part 4A of the IA was to be applied in its own terms.'

The second issue identified by the Supreme Court was whether it was for the Director-General, and upon application for review the Inspector General of Intelligence and Security, or the Minister for Immigration to consider, in the exercise of the functions of Part 4A, the consequences for the individual of removal or deportation. Such a consideration required close examination of Part 4A, beginning with the bases and power of the Director of Security to issue a security risk certificate.' Such a certificate would only have effect once the Minister had made a preliminary decision to rely upon it,42 in response to which the subject of the certificate could initiate the review process.' The function of the Inspector-General, once the review process has been initiated, is outlined in s 1141(4), the focus of which was solely upon the information that related to the making of the security certificate and its relevance to any of the security criterion referred to in the IA and whether the subject of the certificate was properly covered by that criterion.' Thus, according to the Supreme Court, the review process related to the, "decision of the Director-General to make the security risk certificate, nothing more, nothing less"45 and such decision was to be confined to the criterion of threats to national security referred to in s 72 of the IA and Article 33(2) of the

39 Ibid, at para. 24.
ao Ibid, para. 25.
41

Sections 114C(6)(a) and (4)(a) and 114D respectively, IA.
42

Sections 114E-114G, IA.
41

Sections, ss 114H(1), 1141(4), 114J(4) and ssl 14P, IA.
44

Ibid, para. 30.
45 Ibid, at para. 39.
2005 The Human Rights of Asylum-Seekers in New Zealand 135

Convention and which, "did not extend beyond those matters to threats to the person who is the subject of the certificate."' Moreover, any new information that may arise during the course of the Inspector-General's review would not affect the scope of the inquiry but rather merely improve upon the quality and depth of the decision.' Confinement of the review process to the national security criterion was further supported, in the opinion of the Supreme Court, by reference to the legislative role of the Inspector-General, which is:

to assist with the review and oversight of such intelligence and security activity. The function of the Office does not extend to possible threats to noncitizens overseas.°

Further, the Court was of the view that the Inspector-General's expertise lay in the field of security and intelligence rather than human rights and that his legislative powers provided him with no adequate basis to make assessments about human rights and even less so to weigh such an assessment against the threat to national security.49 Thus, the Supreme Court concluded:

that in carrying out his function under Part 4A of the Immigration Act the Inspector-General is concerned only to determine whether the relevant security criteria — here s 72 and article 33.2 — are satisfied. He is not to determine whether Mr Zaoui is subject to a threat which would or might prevent his removal from New Zealand.

The final issue to be considered by the Supreme Court was the extent of the protection of Mr Zaoui's right not to be returned to the risk of torture or arbitrary taking of life, an obligation which the New Zealand government had accepted, particularly that it was obliged to conform with its obligations

46 Ibid.

47 Ibid, para. 41.
48 Ibid, at para. 44.
49 Ibid, para. 45.
50 Ibid, at para. 46.

under Articles 6(1) and 7 of the ICCPR and Article 3 of CAT. The question that remained for the Court to decide was the manner in which such obligations were to be met and who would meet them, given its decision that it was not the Inspector-General.'

The Supreme Court turned to ss 8 and 9 of the BORA52 which, along with Articles 6(1) and 7 of the ICCPR, which form the basis of New Zealand's human rights obligations underpinning any decision to deport an individual where such rights might be violated. In considering the effect of such obligations upon ss 114K to 114N of the 1A, the Court held that if the Minister was to seek to rely on the certificate, then the protection arising from the granting to Mr Zaoui of refugee status, under s 129X of the IA, would no longer be available as it would be overridden by those articles of the Refugee Convention permitting the removal or deportation of individuals considered to be national security risks.' This analysis of the IA then led the Court to consider s 72 and the making of an order to deport persons threatening national security. The Court noted that s 6 of the BORA directed that

s 72 of the IA be interpreted, where possible, in a manner consistent with the provisions of the BORA, including the right not to be arbitrarily deprived of life and not to be subjected to torture. Not only that, the BORA rights, in addition to the power conferred by s 72 of the IA, were to be interpreted in accordance with both customary and treaty-based international law. So, although s 72 conferred the power to deport on the basis of a threat to national security, in actually deciding whether to act on that power, the Supreme Court held there was nothing in the IA that would prevent the Minister, the Governor-General or the Cabinet having regard to mitigating factors that might indicate that an individual should not be deported. According to the Court:

51 Ibid, para.s 48-49.

52

Section 8 relates to the right not to be deprived of life and s 9 relates to the right not to be subjected to torture or (disproportionately) cruel treatment.

53

Zaoui, supra note 29, para.s 54-58.

2005 The Human Rights of Asylum-Seekers in New Zealand 137

The power conferred by s 72 is to be interpreted and exercised consistently with the provisions of ss 8 and 9 of the Bill of Rights and with the closely related international obligations in the Covenant and the Convention against Torture.54

This direction towards a more full consideration of the human rights implications of a Ministerial decision to deport is amplified by further direction by the Supreme Court as to the procedure to be followed under s 72. First, any decision should have adequate time to address the issues of fact and judgment involved, despite any legislative prescription towards speed and effectiveness. Second, the Minister must give reasons for the decision to deport under s 23 of the Official Information Act, although the Court recognised that that Act may also allow for limitations to the provision of such reasons. Finally, the Court stated that the right to natural justice, contained in both the BORA and the ICCPR, would also provide procedural protection, although consideration would still have to be had to security considerations. The consequence of such interpretation, according to the Court, was that these provisions, as a matter of law, would prevent removal if their terms were satisfied even if the threat to national security was made out in terms of s 72 and Article 33.2." The Supreme Court concluded with its view that:

the Minister, in deciding whether to certify under s 72 of the Immigration Act 1987 that the continued presence of a person constitutes a threat to national security, and members of the Executive Council, in deciding whether to advise the Governor-General to order deportation under s 72, are not to so decide or advise if they are satisfied that there are substantial grounds for believing that, as a result of the deportation, the person would be in danger of being arbitrarily deprived of life or of being subjected to torture or to cruel, inhuman or degrading treatment or punishment.56

54 Ibid, at para. 64.

55 Ibid, para. 65.

56 Ibid, at para. 66.

The narrow sequential reading of the prohibition on refoulement, in addition to the narrow interpretation given to the role of the Director-General and Inspector-General, may give rise to some concern about the extent to which the human rights of refugees and asylum-seekers are protected by New Zealand law as, according to the Supreme Court, there is to be no room for human rights protection in national security considerations. Of greater concern is the firm placing of human rights considerations upon the Minister for Immigration. The result of Supreme Court's finding is that a potentially life or death decision may be made that excludes New Zealand's interrelated obligations arising from the Refugee Convention, the Immigration Act, and the BORA — a decision that may well favour broader political considerations over particular human rights considerations in this respect. That said, it should be hoped that any Ministerial decision to deport, particularly one that gave rise to serious human rights concerns, would be subject to judicial review which would allow not only for close scrutiny of the human rights considerations arising out of such the decision itself but which would also contribute to the body of jurisprudence surrounding the human rights of refugees and asylum-seekers in New Zealand.

CONCLUSION.

The stream of litigation arising out of the circumstances of Mr Zaoui is indicative of the complexity of the issues surrounding the balance that must be struck between the rights of individuals within the regime of Refugee Law on the one hand, and the rights of States under this regime on the other. Although the Courts' considerations, by in large, were not framed in broad human rights language, many of their considerations were anchored in basic rights concerns, such as habeas corpus, which have a pedigree much longer than more recent developments in international human rights law such as justifications for limitations on freedom of movement and the connected issue of arbitrary detention. New Zealand's obligations under international and national human rights law remain to be more fully considered, especially with

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regard to the effect of findings of national security concerns. Nevertheless, the most recent decision of the Supreme Court in this connection gives a clear indication that the matter must be dealt with in full and with full due process, security interests allowing. Once again, however, such basic human rights considerations are underpinned by more 'fundamental' principles such as the right to natural justice. The extent to which such rights and interests are played out in the context of law and security after September 11 remains to be seen, however.


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