Court of Appeal Cases
Attorney-General v X and Z
Court of Appeal,
Wellington [2007] NZCA 388
17-18 July 2007; 5
September 2007
William Young P, Chambers
and Ellen France JJ
Confidentiality -
confidentiality under the Refugee Convention - whether confidentiality
implicit
Confidentiality -
use of refugee evidence in other proceedings - confidentiality of
evidence given by refugee claimant
Exclusion - serious reasons for considering - refugee claimant correctly found to be excluded but may not have committed war crimes or crimes against humanity - Refugee Convention Article 1F(a)
Immigration Act 1987
- confidentiality - use of refugee evidence in other proceedings -
confidentiality of
evidence given by refugee claimant - Immigration Act 1987, s 129T
X and Z were from
Rwanda. X was seeking refugee status in New Zealand. Z, a UNHCR
resettlement refugee, was resisting the proposed cancellation of his
refugee status. Each was alleged by the Rwandan government to have been
guilty of genocide and crimes against humanity committed in Rwanda in
1994. They were most unlikely to be tried before the International
Criminal Tribunal for Rwanda as that Tribunal was seeking to conclude
all trials by 2008. Any outstanding prosecutions were then to proceed
in the national courts. But they faced the real possibility of either
trial in New Zealand (under the International Crimes and International
Court Act 2000) or extradition to Rwanda.
Section 129T(1) of the
Immigration Act 1987 imposed confidentiality obligations on those who
dealt with claims for refugee status. But those obligations were
subject
to exemptions provided for in s 129T(3). Of particular relevance to the
case was s 129T(3)(b) which stated that subs (1) did not prevent
disclosure "To an officer or employee of a
Government department or other Crown agency whose functions in relation
to the claimant or other person require knowledge of those particulars".
X and Z were concerned
that information which they put forward in support of their claims for
refugee status might be disclosed to public servants who were
considering their possible prosecution or extradition. In the High
Court X obtained orders which prevented information about his claim for
refugee status being provided to public servants who were considering
the possibility of extradition or prosecution. Z obtained an interim
order from the High Court which, in effect, prevented continuation of
the proceedings involving him until resolution of the appeal involving
X. The Attorney-General appealed to the Court of Appeal. The appeals
raised a single issue: Did s 129T(3)(b) permit disclosure of
information to public servants whose functions in relation to X and Z
were associated with their possible extradition to Rwanda or trial in
New Zealand.
Held (Per William Young P and
Chambers J (Ellen France J dissenting)):
1 Section
129T(3)(b) of the Immigration Act 1987 did not permit those subject to
a duty of confidence under s 129T of the Immigration Act 1987 to
disclose such matters that are confidential in relation to X under s
129T(1) to any person for the purpose of:
(a) The possible extradition of X to Rwanda; or
(b) The possible prosecution of X in New Zealand
under the International Crimes and International Court Act 2000 (see
para [52]).
2 In relation to Z the order made in the High Court was no longer required and it was to be set aside.
Held (Per France J dissenting):
3 The question whether s 129T(3)(b) of the Immigration Act 1987 permits disclosure to public servants whose functions in relation to X and Z are associated with their possible extradition to Rwanda or trial in New Zealand turns on whether disclosure is required to enable the public servant to carry out his or her functions in relation to X and Z. The word "require" in this context has its ordinary dictionary meaning of "need" or "necessary". Whether the necessity test is met is a factual question. It is not possible or appropriate at this stage to exclude the possibility that disclosure for extradition or prosecution purposes will be necessary in relation to X or Z. It is also premature to preclude the possibility that disclosure may be permissible for these purposes under s 129T(3)(f) (see para [57]).5 The
majority point to the need for candour. That is obviously a
consideration underlying the notion of confidentiality although it is
not the principle consideration. However, it cannot be correct that
under the guise of confidentiality a claimant who acknowledged he or
she was in fact a war criminal should be protected from the disclosure
of that fact to the relevant New Zealand official where the admission
was the only likely source of that information. A balancing is required
to give appropriate regard to the interests of the claimant and the
refugee status process but also to give adequate recognition to New
Zealand's other international obligations such as those arising under
the Geneva Conventions or those relating to the Rome Statute of the
International Criminal Court (see para [66]).
6 Further,
aside from any concern about the effects of release of information,
there are already consequences adverse to the refugee claimant if he or
she is untruthful to the authorities determining the claim. For
example, s 129L(1)(b) provides that a refugee status officer may decide
to cease to recognise a person as a refugee if the recognition given by
the officer was procured by fraud or other similar matters. In
addition, supplying information that the claimant knows is false or
misleading is an offence in terms of s 142(1)(c) punishable by
imprisonment or a fine or both. In that sense, the process is designed
to ensure that the claimant tells the truth. If telling the truth leads
to the denial of refugee status, the claimant may have to leave New
Zealand. As such, the fact that the information could be used to
determine whether to extradite or prosecute the claimant once the
status has been declined does not materially alter the incentive to be
candid (see para [67]).
7 In
addition, the context in which these sorts of issues will generally
arise is that the claimant's refugee status has been declined. Where
Article 1F is applicable, the individual is no longer entitled to
protection under the Refugee Convention. However, while the protection
afforded under s 129T continues to apply, the legitimate considerations
relating to the integrity of the refugee status system can no longer be
said to have any great bearing on the matter. Obligations to pass on
information may arise in the Article 1F situation (see paras [68], [69]
& [70]).
8 The
principal concerns of confidentiality provisions are the safety of the
claimant and other persons as well as the obvious concern to ensure
that by claiming refugee status the claimant does not become a refugee sur place. This underlying purpose
leads to the view taken by
the Refugee Status Appeals Authority that the duty of confidentiality
under s 129T is not "all encompassing". Rather, the principal focus is
on protecting the identity of the claimant as a refugee. The
"particulars" are relevant primarily in the context of the concern that
their release would identify the claimant as a claimant. On its face, s
129T does not purport to make confidential everything the claimant
disclosures (see paras [72], [73] & [74]).
9 Section
129T(1) requires the specified persons to keep confidential the
identity of X and Z as claimants and associated identifying
particulars. This obligation of confidentiality does not prevent
disclosure to those involved in determining X and Zs' claims such as
Crown and defence counsel. Nor does it prevent disclosure to those
whose functions mean they need to know about the claims. Plainly,
disclosure to those not in a government department is contemplated. If
there is no safety issue, there is no need to maintain confidentiality
in the narrower sense envisaged by s 129T(1) (see paras [75] &
[76]).
Observations (per William Young P
and Chambers J):
1 A
conclusion that a particular claimant is within the Article 1F(a)
exclusion is not, in itself, a finding that that person has committed
relevant crimes. Such a finding can only properly be made in criminal
proceedings. As well the language of Article 1F talks not of conclusive
findings but rather "serious reasons for considering" that the claimant
has committed relevant crimes. So a claimant who is correctly found to
be within the Article 1F(a) exclusion may very well not have committed
war crimes or crimes against humanity. As well, there is the ever
present risk of human error on the part of those who determine claims
(see para [35(b)]).
2 This
means that a claimant might be unsuccessful in a claim to refugee
status despite having a well-founded fear of persecution on relevant
grounds and not having committed war crimes or crimes against humanity
(see para [35(c)]).
Appeal by Attorney-General against the judgment in favour of X dismissed. Appeal by Attorney-General against the judgment in favour of Z allowed.
Cases
mentioned
in the Judgment
Excom Conclusion No. 91
S v Refugee Status Appeals Authority
[1998] 2 NZLR 291 (CA)
UNHCR guidelines
on application of the exclusion clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees
[Editorial note: The decision of the majority
was overruled in Attorney-General v X
[2008] NZSC 48 (20 June 2008). The text of that decision is provided on
this website.]
Counsel
I C Carter and M G
Coleman for Appellant in both appeals
G M Illingworth QC and
C M Curtis for Respondent X
I C
Bassett and R P McLeod for Respondent Z
A
The appeal by the Attorney-General against the judgment in favour of X
is dismissed. As the judgment of Baragwanath J was not sealed, we think
it right to make a declaration as follows:
Section
129T(3)(b) the Immigration Act 1987 does not permit those subject to a
duty of confidence under s 129T of the Immigration Act 1987 to disclose
such matters that are confidential in relation to X under s 129T(1) to
any person for the purpose of:
(a) The possible extradition of X to Rwanda; or
(b)
The possible prosecution of X in New Zealand under the International
Crimes and International Court Act 2000.
B The appeal by the
Attorney-General against the order made by Andrews J in favour of Z is
allowed, but only because the order she made is no longer required.
That order is set aside.
C An order is made:
(a)
suppressing the names of X and Z and particulars that might lead to
their identification; and
(b)
prohibiting search of this Court's files without leave of a Judge of
this Court.
D Costs are reserved.
REASONS
William Young P and Chambers J [1]
Ellen France J (Dissenting) [56]
WILLIAM YOUNG P AND
CHAMBERS J
(Given by William Young P)
Overview of the case
[1] X and Z are
from Rwanda. X is seeking refugee status in New Zealand. Z, who already
has refugee status, is resisting the proposed cancellation of that
status. Each is alleged by the Rwandan government to have been guilty
of genocide and crimes against humanity committed in Rwanda in 1994.
They are most unlikely to be tried before the International Criminal
Tribunal for Rwanda as that tribunal is seeking to conclude all trials
by 2008. Any outstanding prosecutions are then to proceed in the
national courts. But they both face the real possibility of either
trial in New Zealand (under the International Crimes and International
Court Act 2000) or extradition to Rwanda.
[2] Section 129T(1) of the
Immigration Act 1987 imposes confidentiality obligations on those who
deal with claims for refugee status. But these obligations are subject
to exemptions which are provided for in s 129T(3). Of particular
relevance to this case is s 129T(3)(b) which is in these terms:
(3) Subsection (1) does not apply to prevent the
disclosure ...
(b) To an officer or employee of a Government department or
other Crown agency whose functions in relation to the claimant or other
person require knowledge of those particulars; ...
For ease of reference
we will use the phrase "public servant" in lieu of the statutory
expression "officer or employee of a Government department or other
Crown agency".
[3] X and Z are concerned that
information which they put forward in support of their claims for
refugee status might be disclosed ot public servants who are
considering their possible prosecution or extradition. This concern is
genuine enough as the position adopted by the Attorney-General is that
disclosure and use of that information for those purposes is perfectly
appropriate.
[4] X has obtained orders in the
High Court from Baragwanath J which prevent information about his claim
for refugee status being provided to public servants who are
considering the possibility of extradition or prosecution. The
Attorney-General appeals against that judgment. Z has obtained an
interim order from Andrews J which, in effect, prevents continuation of
the proceedings involving him until resolution of the appeal involving
X. Again the Attorney-General appeals.
[5] As will become apparent, the two
appeals raise a single issue: Does s 129T(3)(b) permit disclosure of
information to public servants whose functions in relation to X and Z
are associated with their possible extradition to Rwanda or trial in
New Zealand? But before we address this question directly it is
necessary to explain both the background to the two appeals and the
statutory context of s 129T(3)(b).
The background to the two appeals
The context
[6]
The allegations of genocide and crimes against humanity against X and Z
are relevant to their entitlements to refugee status for two reasons:
first, a desire to avoid a legitimate prosecution will not usually
amount to a well-founded fear of persecution on relevant grounds (which
is a precondition to entitlement to refugee status under the 1951
Convention Relating to the Status of Refugees); and, secondly, because
of the potential application of art 1F(a) of that Convention which
provides:
The provisions of this Convention shall not apply to any
person with respect to whom t here 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; ... .
X's case
[7]
X's application for refugee status has been declined by a refugee
status officer. This was not specifically on the art 1F ground but
rather because, in the view of the refugee status officer, X did not
establish a well-founded fear of persecution on relevant grounds. His
appeal is pending before the Refugee Status Appeal Authority ("the
Authority") and the issue which has given rise to the present appeal
arose in connection with the proceedings before the Authority.
[8]
X did not wish to put forward his response to the allegations against
him without an unconditional undertaking as to confidentiality. His
primary concern was the possibility that information he provided might
be used against him should the Government of Rwanda commence
extradition proceedings. He also sought an adjournment of the
proceedings before the Authority until decisions have been made as to
extradition. The Authority declined to require such an undertaking as
it considered that s 129% spoke for itself and that the Authority could
not sensibly require the Crown to undertake to comply with its
statutory duties. The Authority also refused to adjourn the proceedings
as requested.
[9] In subsequent review
proceedings, Baragwanath J found in X's favour. He concluded that s
129T(3)(b) contemplates disclosure only for purposes associated with a
claimant's entitlement to refugee status and not for other purposes.
Baragwanath J also approached the case on broader grounds which he
resolved in favour of X. Although we heard some argument about these
broader grounds, Mr Illingworth QC, who appeared for X, was, in the
end, content to resist the appeal on the basis that the Judge was right
in his interpretation of s 129T(3)(b).
Z's case
[10] Z faces proceedings before a
refugee status officer as to whether his status as a refugee should be
cancelled. The refugee status officer indicated that she would comply
with the judgment of Baragwanath J providing it is not set aside on
appeal. She was not prepared to defer the cancellation process until
determination of the appeal against that judgment.
[11] Z did not regard that as
satisfactory as he could not know for certain that information he might
provide to the refugee status officer would remain confidential; this
was because he did not know whether the judgment of Baragwanath J would
be upheld.
[12] Andrews J subsequently granted
interim relief to prevent the refugee status officer carrying on with
the cancellation process, pending further order of the Court.
[13] Because we heard X's and Z's
cases together, and are deciding them in a single judgment, Z has now
obtained all that he could realistically expect under the interim order
made by Andrews J. In effect, our decision on the appeal involving X
renders the other case moot (at least in respect of the interim order
which has been obtained).
Other arguments
[14] As is apparent from what we
have said, there were a number of arguments presented in relation to
the case involving X which, in the end, were not persisted with. Z has
also sought to challenge the process before the refugee status officer
on grounds of bias. Some affidavit evidence relevant to this was
adduced in the High Court. However, Mr Bassett, for Z, did not seek to
make anything of the bias argument in this Court and we will therefore
not address it.
[15] In each case there is scope
for doubt as to the appropriateness of the procedure adopted in the
High Court. In the case of X, it is difficult to identify any error of
law which the Authority made in refusing to adjourn the proceedings. In
the case of Z, the decision taken by the refugee status officer would
appear to be impeccable: that she would comply with the law as declared
by the High Court but subject to any later authoritative restatement of
the law by this Court. In both cases, therefore, there are substantial
grounds for contending that the decisions identified by X and Z as the
subjects of their applications for review were not susceptible to
review.
[16] That said, there is undoubtedly
a genuine lis between the
parties as to what use can be made of material produced in support of a
claim for refugee status and we think it right to address that issue
directly.
The statutory context of s 129T(3)(b)
The language of the section
[17] Section 129T in in these terms:
129T Confidentiality to be
maintained
(1) Subject to this section, confidentiality as to the identity
of the claimant or other person whose status is being considered under
this Part, and as to the particulars of their case, must at all times, both during and
subsequent to the determination of the claim or other matter, be maintained by refugee status officers,
the Authority, other persons involved in the administration of this
Act, and persons to whom particulars are disclosed under subsection
(3)(a) or (b).
(2) Compliance with subsection (1) may in an appropriate
case require confidentiality as to the very fact or existence of a
claim or case, if disclosure of its fact or existence would tend to
identify the person concerned, or be likely to endanger any person.
(3) Subsection (1) does
not apply to prevent the disclosure of particulars--
(a) To a person
necessarily involved in determining the relevant claim or matters; or
(b) To an officer or
employee of a Government department or other Crown agency whose
functions in relation to the claimant or other person require knowledge
of those particulars; or
(c) To the United Nations High Commissioner for Refugees or
a representative of the High Commissioner; or
(d) In dealings with other countries for the purpose of
determining the matters specified in section 129L(d) and (e) (whether
at first instance or on any appeal); or
(e) To the extent that the particulars are published in a
manner that is unlikely to allow identification of the person
concerned, whether in a published decision of the Authority under
clause 12 of Schedule 3C or otherwise; or
(f) If there is no
serious possibility that the safety of the claimant or any other person
would be endangered by the disclosure in the particular circumstances
of the case.
(4) Nor does subsection (1) apply to prevent the disclosure
of particulars in relation to a particular claimant or other person to
the extent that the claimant or person has, whether expressly or
impliedly by their words or actions, waived his or her right to
confidentiality under this section.
(5) A person who without
reasonable excuse contravenes subsection (1), and any person who
without reasonable excuse publishes information released in
contravention of subsection (1), commits an offence.
(Emphasis added)
To make this more
concrete, X is a "claimant" for present purposes and Z is within the
words "other person". For ease of reference we will treat each as a
claimant. We have italicised the words in the section that are
primarily relevant to the issue which we must determine.
Section 129T(3)(f)
[18] Even on the broadest view of s
129T(3)(b), the relevant information cannot be used externally (ie
given to the Rwandan authorities or deployed in a prosecution in New
Zealand) unless s 129T(3)(f) is satisfied. This much was common ground
between the parties.
[19] In the course of argument
another potential use of s 129T(3)(f) was discussed. Disclosure to a
public servant by itself would not give rise to a "serious possibility
that the safety of the claimant or any other person would be
endangered". On this basis it was suggested that s 129%(3)(f) might
provide an alternative basis for disclosure to public servants who are
addressing possible prosecution or extradition for X and Z.
[20] It is apparent from some of the
material which we have read that the trustworthy nature of a particular
proposed recipient of information is sometimes seen as sufficient to
engage s 129T(3)(f). But in the course of the hearing before us, Mr
Illingworth made the telling point that under s 129T(1), those who
receive information under s 129T(3)(f) - as opposed to those who are
within s 129T(3)(a) and (b) - are not under any continuing obligation
of confidence. This, said Mr Illingworth, implies that a decision to
invoke s 129T(3)(f) requires a conclusion that general dissemination of
the relevant information can be effected safely. We recognise that
on-going confidentiality conditions are not imposed on the United
Nations High Commissioner for Refugees or other countries to whom
disclosure is provided for under s 129T(3)(c) and (d). It may be that
the absence of confidentiality obligations for s 129T(3)(c) and (d)
recipients is associated with their trustworthy character, but it is
equally likely that ongoing confidence obligations were not imposed
given the impossibility of enforcing them against such recipients. For
this reason the absence of ongoing confidentiality obligations on s
129T(3)(c) and (d) recipients is not inconsistent with the point made
by Mr Illingworth.
[21] In the result, we do not see s
129T(3)(f) as providing a basis for disclosure for extradition and
prosecution purposes unless unlimited disclosure of that information
would be safe.
Other relevant provisions
of the Immigration Act
[22] It is also necessary to refer
to ss 129G, 129H, 129L and 129P. Each of these sections contemplate the
possibility that those dealing with refugee status claims may make
inquiries of, or deal with, third parties. Such third parties may or
may not be public servants. Depending on their nature, such an inquiry
might be difficult to make effectively without disclosure
of the underlying reason and thus might have the potential to involve
disclosure of the identity of the claimant and some particulars of the
case.
[23] It is open to question whether
these sections should be treated as adding a gloss to s 129T or whether
s 129T controls the manner in which requests by third parties must be
couched. If the latter approach is correct, this might have the effect
of limiting the ability of those who make refugee status decisions to
ascertain the facts. On the other hand, if the former approach is
correct, there is a gap in the confidentiality regime provided by s
129T as it does not apply to third parties (at least if they are not
public servants) to whom disclosure might be made as part of
information gathering exercises on the part of a refugee status officer
or the Authority.
The necessity for other
disclosures
[24] In the course of argument,
counsel, and particularly Mr Carter, drew to our attention other
statutes the administration of which might require some knowledge of,
or awareness about, successful or unsuccessful refugee status claims.
He mentioned the Extradition Act 1999 and the Citizenship Act 1977. He
also suggested that public servants dealing with issues such as
housing, benefits or health services, might have a legitimate need to
know about refugee status claims. Broadly, the proposition that he
advanced was that public servants administering such statues might
properly be regarded as being within s 129T(3)(b). This was in support
of his general contention that disclosure under that subsection may be
for purposes other than the assessment of refugee status claims.
[25] The countervailing
consideration, urged on us by counsel for Z and X, is that in these
particular contexts it will be the refugee (or claimant for refugee
status) who can be expected to make the relevant disclosures.
[26] As will become apparent, we
regard s 129T as quite a difficult section to interpret and we are
inclined to think that the other statutory examples discussed in
argument are too far off the point to throw much light on its true
meaning.
Does s 129T(3)(b) permit disclosure of information to any
public servant whose functions in relation to X and Z are associated
with their possible extradition to Rwanda or trial in New Zealand?
The approach of the
Refugee Status Appeal AUthority in the X case
[27] The approach of the Authority
was that s 129T spoke for itself and that it was not appropriate to
require the Crown to give an undertaking to comply with statutory
duties.
The approach in the High
Court
[28] The reasons of Baragwanath J
for answering this question in favour of X were as follows.
[18] The approach of the United Nations High Commissioner
for Refugees is described in "Background Note on the application of the
Exclusion Clauses: Article 1F of the 1951 Convention relation to the
Status of Refugees" (2003) 15 International Journal of Refugee Law 502.
That note deals with the background to the Convention and the purpose
of the exclusion. It also deals with procedural issues in determining
Article 1F (Part III). Confidentiality of asylum claims is specifically
addressed:
103. Consideration of the exclusion clauses may lead to the
sharing of data about a particular asylum application with other
States, for example, to gather intelligence on an individual's
suspected terrorist activities. In
line with established principles, information on asylum-seekers,
including the very fact that they have made an asylum application,
should not be shared with the country of origin as this may place such
persons, their families, friends or associates at risk. In
exceptional circumstances, where national security interests are at
stake, contact with the country of origin may be justified. For
example, this may be the only method by which to obtain concrete
evidence about an individual's previous and potentially ongoing
terrorist activities. Even in such
situations, the existence of the asylum application should still remain
confidential.
104. The principle of
confidentiality continues in principle to apply even when a final
determination of exclusion has been made. This is necessary to preserve
the integrity of the asylum system -- information given on the basis of
confidentiality must remain protected.
(Emphasis added)
[19] Turning to the New Zealand Act, the object of Part 6A
is to provide at statutory basis for the system by which New Zealand
ensures it meets its obligations under the Refugee Convention (s 129A).
As Article 1A(2) of the Convention makes clear, the very definition of
"refugee" is of one who for relevant reasons has:
... well-founded fear of being persecuted ... and is unable
or, owing to such fear, is unwilling to avail himself of the protection
of [the] country [of his or her nationality].
[20] The purpose of the Convention and of Part 6A is to
afford protection to the claimant and others. For that purpose the rule
of confidentiality is stated in s 129T(1). The importance of that rule
is underlined by s 129T(2), requiring confidentiality as to the very
fact or existence of a claim or case where disclosure would tend to
identify the claimant or be likely to endanger any person. The
exceptions to the rule in ss (3) are to be read in that context.
[21] Each sub-clause of ss (3) other than subclause (b)
clearly confines disclosure to the determination of the refugee status
claim ((a) and (c)-(d)); or to cases where there is unlikely to be
identification ((e)); or to cases where there is no serious possibility
that anyone would be endangered by the disclosure ((f)).
[22] Read in this context sub-clause (b) cannot be given the
wide reading for which the Crown contends.
[23] It might at first sight be thought that such
construction would be consistent with the public policy that criminal
offenders should be brought to justice. But the problem with such
argument derives from the very character of the refugee phenomenon. The
website of the United Nations High Commissioner for Refugees records
that there are some 19.2 million people "of concern" to that office
world-wide. Each bona fide refugee has been subjected by a state to a
well-founded fear of persecution. The Convention and Part 6A are to
read in that light. It is usually impossible until after a status
hearing to know whether the claimant is one of the nearly 20 million,
or a charlatan. A claimant has under s 129G(5) the responsibility to
establish his claim and to ensure that all relevant information,
evidence and submissions are provided to the decision-maker. An
innocent claimant would be put in an impossible position if,
immediately he made disclosure, such materials were provided to one of
the states prepared to engage in or to permit persecution.
...
[26] Mr Carter did not argue that it could be assumed that
the current conditions in Rwanda could present no risk to X. His
submission was:
a) section 129X of the Immigration Act prohibits removal of
a refugee status claimant "under this Act";
b) section 7 of the Extradition Act 1999 prohibits surrender
to another state of a person whose surrender is actually sought for the
purpose of prosecuting or punishing him, or who on surrender may be
prejudiced at trial or restricted in his personal liberty, on account
of his ethnic origin;
c) section 30 requires the Minister of Justice to decline to
determine that surrender should take place if a s 7 prohibition applies
or if there are substantial grounds for believing that the person would
be in danger of torture or that he might be sentenced to death; there
being no extradition treaty between New Zealand and Rwanda;
d) section 60 requires the exercise of a further ministerial
judgment whether extradition should take place;
e) it follows that there is no need to construe s 129T so as
to prohibit disclosure of particulars of the defence to the prosecution
authorities; there are ample safeguards to prevent abuse.
[27] While Mr Carter did not advance the submission, some
might think that if in the end the Authority were to decline X's
application for refugee status because it considered that there are
serious reasons for considering that X is guilty of genocide, the
evidence before the Authority should at that point be made available to
the prosecution authorities. But that is not the course adopted in the
analogous sphere of evidence on the voir dire to challenge the
admissibility of an alleged confession. Nor is it the law of Australia.
[28] Subsection (2) provides the plainest evidence of
Parliament's policy to afford complete protection of a claimant against
risk of danger to any person. I am of the clear opinion that, read in
the light of the other provisions of s 129T, Part 6A and the factual
matrix of the profound international problem of state persecution of
refugees, subclause (b) of ss (3) is confined to Crown officers and
employees whose "functions in relation to the claimant" relate to the due disposal of his claim to
refugee status and does not
extend to officers and employees whose "functions in relation to the
claimant" are for other purposes,
such as extradition or prosecution.
[29] It follows that X is entitled to a declaration
generally to the effect of para [28] and that he can proceed to lodge
his evidence and submissions with the Authority confident that it may
use them only for the purpose of determining his application. I did not
receive submissions as to the precise form of the declaration sought
and there will be leave to apply for further directions.
(Emphasis in original, footnotes omitted)
We note in passing that
the judgment of Baragwanath J was never sealed.
How much does it matter?
[29] It is clear that X and Z deny
the allegations against them. So at first sight it might seem unlikely
that information which they supply in support of those denials might be
to their later forensic or other prejudice. But a moment's reflection
shows that there is potential for such prejudice to occur.
[30] The narrative of events given
by a claimant to those dealing with a claim for refugee status might
conceivably involve the claimant asserting presence in the particular
place where the relevant crimes were committed. As well, against a
background of civil war and widespread unrest, political and personal
associations which the claimant may put forward as relevant to an
asserted well-founded fear of persecution might later be useful in a
prosecution as linking him or her to those who were involved in
genocide or crimes against humanity. Therefore, in advancing a claim
for refugee status, a claimant may make assertions which turn out later
to be in the nature of admissions.
[31] As well, there can be no doubt
that anyone required to make a decision whether to prosecute (or
support the extradition of) a suspected offender would be very
interested in any detailed narrative of the relevant events previously
given by that suspected offender. At the very least, such a narrative
would have the forensic consequences of limiting the room for manoeuvre
of the suspected offender at trial and providing a framework for
cross-examination.
[32] We should also record the
submission of counsel for X and Z that witnesses identified by them
might be interfered with (presumably by the present Government of
Rwanda) and thus not be available should the claimant later be
prosecuted.
[33] The need to satisfy s
129T(3)(f) provides something of a "long stop" against the risk of
illegitimate prejudice. If disclosure is made to a public servant under
s 129T(3)(b), that public servant is subject to a continuing
requirement of confidentiality and release to third parties, including
other public servants, is only possible if the s 129T(3)(f) test can be
satisfied. For practical purposes, this consideration largely addresses
the concern identified in [32] above. Further, if X and/or Z are later
extradited to Rwanda or prosecuted in New Zealand, then it might be
thought that potential prejudice to them of the kind identified in [30]
and [31] is legitimate. It is certainly not obvious that X or Z should
be able to abandon, without forensic consequences, explanations given
in support of their claims for refugee status. Arguments along these
lines were implicit, and sometimes explicit, in much of what counsel
for the Attorney-General submitted to us.
[34] Extradition (or indeed
prosecution in New Zealand) are unlikely outcomes for X and Z unless
they are found to be within the art 1F(a) exclusion. Counsel for the
Attorney-General argued that if art 1F(a) does apply, it would be
entirely in accord with public policy for all relevant information to
be made available to prosecution agencies whether here or in Rwanda.
[35] Although we recognise that this
consideration is relevant to the ultimate issue we must determine, we
do not see it as being of controlling importance. In our view, it
requires assessment in light of a number of countervailing
considerations:
(a) Section 129T(1) does not distinguish between successful
and unsuccessful claims to refugee status. Nor is the success or
otherwise of an application explicitly made relevant to the application
of any of the exemptions provided for in s 129T(3). So confidentiality
applies to information supplied irrespective of whether the claim to
refugee status is successful. As well, s 129T(1) makes it clear that
confidentiality continues to apply after the determination of a claim.
(b) A conclusion that a particular claimant is within the
art 1F(a) exclusion is not, in itself, a finding that that person has
committed relevant crimes. Such a finding can only properly be made in
criminal proceedings. As well the language of art 1F talks not of
conclusive findings but rather "serious reasons for considering" that
the claimant has committed relevant crimes. So a claimant who is
correctly found to be within the art 1F(a) exclusion may very well not
have committed war crimes or crimes against humanity. As well, there is
the ever present risk of human error on the part of those who determine
claims.
(c) This means that a claimant might be unsuccessful in a
claim to refugee status despite having a well-founded fear of
persecution on relevant grounds and not having committed war crimes or
crimes against humanity.
(d) The corollary of these considerations is that a finding
against a claimant on the art 1F(a) exclusion is not necessarily
inconsistent with the continuing relevance of factors which favour
confidentiality.
(e) It is important to recognise the situation as it might
appear to a claimant for refugee status. Such a claimant may not be
entirely confident that the claim will be successful (understandably,
as most claims are not). A sense on the part of a claimant that what is
said in support of the claim may later be used for other purposes and
against the interests of the claimant is a disincentive to candour.
Such a claimant may not easily distinguish between the release of
information to New Zealand public servants for purposes associated with
their possible extradition or prosecution and the more general use and
dissemination of the information. It is not too difficult to envisage
claimants, in that situation, seeking to hedge their bets in terms of
what they disclose. Because refugee status claims are often determined
on the basis of credibility assessments, considerable care should be
taken to avoid anything which might discourage claimant candour.
Confidentiality under the
Convention
[36] The Convention does not make
specific provision for confidentiality. But it is widely recognised
that confidentiality is implicit in the process. That is apparent from
[18] of the judgment of Baragwanath J. However, it is also fair to note
that there is scope for debate as to the appropriate limits of such
confidentiality. Indeed, Mr Carter made extensive and helpful
submissions on this aspect of the case.
[37] Mr Carter referred us to the
pronouncements of the UNHCR Executive Committee as stated in its Conclusions Adopted by the Executive
Committee on the International Protection of Refugees No. 91 (LII)
A/56/12/Add.1(2001) that it:
(f) Recognises the confidential nature of personal data and
the need to continue to protect confidentiality; also recognises that
the appropriate sharing of some personal data in line with data
protection principles can assist states to combat fraud, to address
irregular movements of refugees and asylum-seekers, and to identify
those not entitled to international protection under the 1951
Convention and/or 1967 Protocol.
[38] There are jurisdictions whose
domestic law permits refugee status information to be shared with
prosecuting authorities in appropriate circumstances. In Denmark, s 45c
of the Aliens (Consolidation) Act 2005 allows information to be passed
to the public prosecutor "for the purpose of the prosecutor's decision
whether to charge the alien with crimes committed in Denmark or
abroad". Similar provisions can be found in South Africa. Regulation
6(3)(d) of the Refugee Regulations 2000 allows disclosure to a
government official or employee who has "need to examine the
information in connection with ... any investigation concerning any
criminal or civil matter". In the United Kingdom, any information held
by the Secretary of State in connection with the exercise of functions
under the Immigration Acts may be supplied to a chief police officer
for police purposes: Immigration and Asylum Act 1999, s 21(2)(a).
[39] While the legislation referred
makes information sharing with prosecution authorities possible, we are
aware of at least one jurisdiction that has gone somewhat further. In
the Netherlands the State Secretary for Justice has actively pursued a
policy of disclosure when the claimant falls into one of the art 1F
exceptions.
[40] For completeness we note that
section 336F of the Migration Act 1958 (Cth) provides for disclosure to
specified police forces and foreign countries. At least in this respect
Baragwanath J was incorrect to assert that the Act limited disclosure
of refugee information for refugee purposes.
Argument for the
Attorney-General
[41] Mr Carter for the
Attorney-General noted that state practice in relation to the
Convention was consistent with the interpretation he was advancing and
in particular he submitted that there was nothing in either the
Convention or associated state practice which dictated the
interpretation which Baragwanath J favoured. He also, as we have
indicated, contended that in this case disclosure may well be in the
public interest.
[42] He further maintained that the
text of s 129T supported the Crown interpretation. His arguments
focused very much on the practical application of s 129T. Mr Carter's
contention was broadly that the interpretation favoured by Baragwanath
J involved awkwardness in relation to the interconnections between
subss (1), (3)(a) and (3)(b). The argument as to this was detailed and
reasonably dense. It is easiest for us to pick up the highlights when
we express our own views on the section.
Arguments for X and Z
[43] Mr Illingworth accepted that
the interpretation favoured by Baragwanath J was not required under the
Convention or by associated state practice. But he maintained that s
129T, when read sensibly and in context, did bear the meaning
attributed to it by the Judge.
[44] Again the arguments advanced
were reasonable dense and it is easiest to address them in our
evaluation.
Evaluation
[45] As is apparent from what we
have said, a good deal of the argument focused closely on the words of
the section.
[46] Favouring the argument for the
Attorney-General (the appellant) are a number of considerations:
(a) On the approach favoured by Baragwanath J, s 129T(3)(b)
covers much the same ground as s 129T(3)(a). If s 129T(3)(b) has the
narrow meaning attributed to it by the Judge, it is not altogether easy
to think of a public servant "whose functions in relation to [a]
claimant ... [requires] knowledge of ... particulars" associated with
the claim to refugee status (and is thus within s 129T(3)(b)) who would
not also be a "a person necessarily involved in determining the
relevant claim" (and thus also within s 129T(3)(a)).
(b) Section 129T(1) defines those who are subject to
confidentiality as "refugee status officers, the Authority, other
persons involved in the administration of this Act, and persons to whom
particulars are disclosed under subsection (3)(a) or (b)". This
particular form of words contemplates that public servants within s
129T(3)(b) are not necessarily going to be involved "in the
administration of the Act" and this points away from the conclusion
reached by Baragwanath J.
(c) Disclosure of information to public servants who are
themselves subject to confidentiality is most unlikely to prejudice the
safety of any person.
(d) The extent of the confidentiality which the judgment of
Baragwanath J provides for goes beyond what is required under the
Convention and associated state practice and might well have the
practical effect of limiting the ability of the New Zealand or Rwandan
authorities to prosecute successfully for what may well be extremely
serious offending.
[47] While we recognise the force
of these considerations and, indeed, that the issue is closely
balanced, we have reached the view that the approach taken by
Baragwanath J is broadly correct. Our reasons for this conclusion now
follow.
[48] We start by observing that the
relevant legislative scheme is not entirely coherent.
(a) We have noted already that the statute does not
expressly provide whether or not the information gathering powers under
ss 129G, 129H, 129L and 129P are to be exercised in a way which is
subject to s 129T.
(b) It does not seem very likely that the legislature
intended to distinguish in a discrete sense between the first three
categories identified in s 129T(1) (ie "refugee status officers, the
Authority, [and] other persons involved in the administration of this
Act") and "persons to whom particulars are disclosed under subsection
(3)(a) or (b)"). For instance, disclosure by a person "involved in the
administration of the Act" to a refugee status officer who is to
determine an application would be within s 129T(3)(a) and (b). In such
an instance, the refugee status officer and as a recipient under both s
129T(3)(a) and (b). We see s 129T(1) as having been drafted on a belt
and braces basis with the intention of casting the confidentiality net
as far as possible. In that context arguments based on "doubling up" or
surplusage of words seem to us to be of less moment than usual.
(c) The section does not provide a formal decision making
process for the invocation of s 129T(3)(f). We also note that the
confidentiality obligation is enforced by the creation of the offences
provided for under s 129T(5). These considerations suggest a
legislative expectation that decisions as to release under s 129T(3)(f)
must be made by those who hold the information. Providing those who
have the relevant information are imbued with the appropriate refugee
status mind-set, associated risks might be thought to be manageable.
But if information could be released under s 129T(3)(b) to someone
engaged in the extradition or prosecution of the claimant, such a
person might bring a rather different approach to bear. Against that
background, the primary purpose of s 129T (which is the preservation of
confidentiality) is best preserved by limiting the exceptions.
[49] There are two particular
features of the section which support the argument for X and Z advanced
by Mr Illingworth:
(a) On his argument, the order of the list of exceptions is
reasonably logical. Section 129T(3)(a) addresses disclosure to those
who are directly involved in the key decision making processes. Section
129T(3)(b) provides an overlapping category which may extend to public
servants who are on the periphery of that process. Section 129T(3)(c) -
dealing with disclosure to the United Nations High Commissioner for
Refugees - is still broadly associated with issues which are part and
parcel of the resolution of claims for refugee status. Section
129T(3)(d) is also focused on addressing claims for refugee status. On
the other hand, if the Attorney-General's argument is right and s
129T(3)(b) is intended to provide for disclosure for purposes
associated with the claimant's possible extradition or prosecution, it
seems to be rather out of order, as it is very much in the middle of a
series of subsections focused on the resolution of claims to refugee
status. This is very much the point made by Baragwanath J at [21] of
his judgment.
(b) The very limited language of s 129T(3)(b) is not a good
fit for the Attorney-General's argument. The subsection permits
disclosure of information to a public servant "whose functions in
relation to the claimant or other person require knowledge of" that
information. We agree with Mr Carter that the word "require" has a
number of shades of meaning. But in the context of a statutory
provision addressing confidentiality, it seems to us sensible to
construe it literally. Public servants addressing possible extradition
or prosecution of a claimant do not "require" information associated
with that person's claim to refugee status because they can perform
their relevant functions without the information.
[50] The overall impression we are
left with is that s 129T was set up to facilitate the operation of a
system to assess claims for refugee status. Under the legislative
scheme, confidentiality is required save to the extent that disclosure
is made for the purposes of that system - subs 129%(3)(a), (b), (c) and
(d) - or can be safely made - subs 129%(3)(e) and (f). Although this
approach we favour is not mandated by the Convention or associated
state practice, there are legitimate considerations associated with the
integrity of the refugee status system (see [34] above) which support a
broad approach to confidentiality. So overall, we prefer the
interpretation of s 129(3)(b) which Mr Illingworth advanced to that put
forward by Mr Carter.
[51] We indicated earlier that we
agreed broadly with the approach taken by Baragwanath J. It will be
recalled that he was of the opinion that disclosure under s 129T(3)(b)
was confined to "Crown officers and employees whose 'functions in
relation to the claimant' relate to
the due disposal of his claim to refugee status ... ." We would
prefer to treat s 129T(3)(b) as permitting disclosure to public
servants whose functions in relation to the claimant involve the due
disposal of the claim to refugee status or matters incidental to or
consequential upon that disposal; this to catch for instance disclosure
to police officers who may have responsibilities in relation to a
particular claimant. As well, we recognise that conceivably s
129T(3)(f) may (perhaps in the future) be able to be invoked and if
that is so there could be no objection to the general release of
information for any purpose, including prosecution or extradition.
Result
[52] The appeal by the
Attorney-General against the judgment in favour of X is dismissed. As
the judgment of Baragwanath J was not sealed, we think it right to make
a declaration as follows:
Section 129T(3)(b) the Immigration Act 1987 does not permit
those subject to a duty of confidence under s 129T of the Immigration
Act 1987 to disclose such matters that are confidential in relation to
X under s 129T(1) to any person for the purpose of:
(a) The possible extradition of X to Rwanda; or
(b) The possible prosecution of X in New Zealand under the
International Crimes and International Court Act 2000.
[53] The appeal of the
Attorney-General against the order made by Andrews J in favour of Z is
allowed but only because the order she made is no longer required. That
order is set aside. We make it clear, however, that Z should be
regarded as having been successful in these proceedings. This could be
relevant for cost purposes.
[54] We have made, by consent, a
suppression order with respect to proceedings in this court: see order
C. We record that there remain in place various suppression orders with
respect to the proceedings in the High Court.
[55] Costs are reserved.
ELLEN FRANCE J
[56] The question posed on the
appeal is whether s 129T(3)(b) of the Immigration Act 1987 permits
disclosure to public servants whose functions in relation to X and Z
are associated with their possible extradition to Rwanda or trial in
New Zealand.
[57] In my view, the answer to that
question turns on whether disclosure is required to enable the public
servant to carry out his or her functions in relation to X and Z. The
word "required" in this context has its ordinary dictionary meaning of
"need" or "necessary" (Little, Fowler and Coulson The Shorter Oxford English Dictionary on
Historical Principles (3ed 1984) at 1803). Whether the necessity
test is met is a factual question. It is not possible or appropriate at
this stage to exclude the possibility that disclosure for extradition
or prosecution purposes will be necessary in relation to X or Z. It is
also premature to preclude the possibility that disclosure may be
permissible for these purposes under s 129T(3)(f).
[58] I have adopted the term
"public servant" used by the majority although I note that the term
used in s 129T(3)(b) is broader because it also encompasses officers
and employees of Crown agencies.
[59] The approach of the majority,
like that of Baragwanath J, requires a reading into s 129T of a
limitation on disclosure because the public servant works in the area
of extradition or prosecution. Baragwanath J would go further and say
that the disclosure must be limited to functions relating to disposal
of the refugee status claim.
[60] The Immigration Act does
envisage the making of inquiries and the provision of further
information in relation to the disposal of a refugee claim. For
example, s 129H(1)(d) states that if a refugee status officer has good
cause to suspect that a person other than the refugee claimant has in
his or her possession or control any document of the claimant
(including any passport or travel document), the officer may, in the
prescribed manner, request the person to produce the document. The
prescribed form is set out in the Schedule to the Immigration (Refugee
Processing) Regulations 1999. The form provides for the officer to
record that he or she has good cause to suspect the recipient is in
possession or control of a document relating to the "name of claimant"
who has claimed refugee status. In contrast to the position where
disclosure is made under s 129T(3)(b), it is not at all clear that the
persons to whom the form may be sent will be under any obligation of
confidentiality in terms of s 129T.
[61] It is plain, however, that
there must also be some disclosure authorised by s 129T(3)(b) which
relates to those whose functions are not concerned with the "due
disposal" of the claim to refugee status. This point is made by the
Authority in declining X's applications for indefinite adjournment of
the hearing of his appeal until all extradition matters have been
determined and for an order for complete confidentiality in respect of
his evidence: RSAA AK Refugee Appeal No. 75647 13 April 2006. The
Authority discusses the matter at [62] by reference to the turnaround
provisions in s 128 and the conditional release sections including s
128AA and says:
[62] Additionally, the provisions of Part 6A of the Act are
to be read alongside the balance of the Act and in particular the
turnaround provisions in s 128 and the conditional release sections, of
which s 128AA is central. The New Zealand authorities must be able to
make enquiries, for example, as to the identity of persons arriving in
New Zealand, the authenticity of the travel documents produced by them
and into the various disqualifying features listed by s 7 of the Act
and which are directly engaged in the airport situation by s 128B. In
addition the existence of an international arrest warrant is clearly
relevant to flight risk when a court is determining custodial status
under the Act. Similarly where a refugee claimant applies for
conditional release and produces police clearance certificates, it is
difficult to understand why the Immigration Service should be precluded
from making enquiries into the authenticity of those certificates. In
addition, as in the present case, where an individual presents himself
at Auckland International Airport as a ... citizen [of ...] travelling
on a ... passport [from that other country], he or she cannot complain
if the New Zealand authorities make enquiries of their counterparts in
[the other country] as to whether the travel document is genuine and as
to whether the individual is indeed a ... citizen [of that other
country].
[62] The point is also illustrated
by reference to s 128B. That section provides for the detention of
persons arriving in New Zealand in certain circumstances. One of those
circumstances is where an immigration officer or any member of the
police has reason to suspect that the person may be a person to whom s
7(1) applies. Persons to whom s 7(1) applies include, for example, a
person who the Minister of Immigration has reason to believe has
engaged in an act of terrorism in New Zealand (s 7(1)(e)(i)) or is a
member of an organisation which has criminal objectives and whose
presence here would be a threat to the public interest. Such a person
can be detained until, amongst other matters a determination is made
that he or she is not a person to whom s 7(1) applies (s 128B(3)).
Obviously, inquiries will have to be made about these persons in order
to determine whether or not their detention is to continue. It is of
course quite possible that a person in this situation may also claim
refugee status. (See the discussion on the applicability of ss 128 and
128B to refugee status claimants in Attorney-General
v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA)).
[63] Mr Carter pointed to
difficulties for social welfare, passports and other officials in
undertaking their functions without access to the information in
question. (The Immigration Act does make some provision for the
disclosure of immigration information to the Ministry of Social
Development, s 141A.) The response of both counsel for the respondents
was that these difficulties could be met by waiver or provision of the
information from X or Z. That approach does not however appear to sit
easily with the obligatory nature of the language in art 28 of the
Convention Relating to the Status of Refugees (1951) 189 UNTS 137, for
example, which provides that contracting states "shall" issue travel
documents to refugees lawfully in their territory for the purpose of
travel except in the specified circumstances.
[64] I accept there may be cases
where, on the facts, disclosure is not necessary for extradition or
prosecution purposes. But there is nothing on the reading of s 129T to
warrant the imposition of a limitation to prevent disclosure to those
in the extradition or prosecution areas.
[65] Nor is there anything in the
Convention or in state practice that warrants reading the section in
the way favoured by the majority.
[66] The majority point to the need
for candour. That is obviously a consideration underlying the notion of
confidentiality although in my view it is not the principal
consideration. (See the discussion in McAllister, "Refugees and Public
Access to Immigration Hearings: A Clash of Constitutional Values"
(1990) 2 IJRL 562 at 582.) However, it cannot be correct that under the
guise of confidentiality a claimant who acknowledged he or she was in
fact a war criminal should be protected from the disclosure of that
fact to the relevant New Zealand official where the admission was the
only likely source of that information. A balancing is required to give
appropriate regard to the interests of the claimant and the refugee
status process but also to give adequate recognition to New Zealand's
other international obligations such as those arising under the Geneva
Conventions or those relating to the Rome Statute of the International
Criminal Court (1998) 2187 UNTS 90.
[67] Further, aside from any concern
about the effects of release of information, there are already
consequences adverse to the refugee claimant if he or she is untruthful
to the authorities determining the claim. (For example, s 129L(1)(b)
provides that a refugee status officer may decide to cease to recognise
a person as a refugee if the recognition given by the officer was
procured by fraud or other similar matters. In addition, supplying
information that the claimant knows is false or misleading is an
offence in terms of s 142(1)(c) punishable by imprisonment or a fine or
both.) In that sense, the process is designed to ensure that the
claimant tells the truth. If telling the truth leads to the denial of
refugee status, the claimant may have to leave New Zealand. As such,
the fact that information could be used to determine whether to
extradite or prosecute the claimant once the status has been declined
does not materially alter the incentive to be candid.
[68] In addition, the context in
which these sorts of issues will generally arise is that the claimant's
refugee status has been declined. Where art 1F is applicable, the
individual is no longer entitled to protection under the Refugee
Convention. Exclusion from the Refugee Convention does not mean
automatic removal from New Zealand. As this Court said in S v Refugee Status Appeals Authority
[1998] 2 NZLR 291 at 300, New Zealand's obligations under, for example,
the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (1984) 1465 UNTS 112 remain. However, while the
protection afforded under s 129T continues to apply, the legitimate
considerations relating to the integrity of the refugee status system
can no longer be said to have any great bearing on the matter.
[69] Fitzpatrick, "The
Post-Exclusion Phase: Extradition, Prosecution and Expulsion" (2000)
132 (Supplement 1) IJRL 272 at 278 observes that:
For crimes encompassed within Article 1F(a), especially
those grave crimes implicating the aut
dedere aut judicare [extradite or prosecute] principle, the
State excluding the asylum seeker arguably has an obligation to notify
the State to whom he or she will be returned that there are 'serious
reasons' to suspect him or her of such crimes. Even where no formal
extradition takes place, this notification will help insure that a
prosecution ensues.
[70] The notion that obligations to
pass on information may arise in the art 1F situation is reflected in
the legislative provisions allowing such disclosure in the Netherlands,
Denmark, South Africa, the United Kingdom and Australia. In terms of
the position in Australia the confidentiality provisions are qualified
by the ability to disclose where that is necessary for the purposes of
carrying into effect the provisions of the Migration Act 1958 (Cth): s
439(3)(c). Provisions such as s 336F of the Migration Act authorise
disclosure to foreign countries for certain purposes in an art 1F type
situation.
[71] The UNHCR itself acknowledges
in the context of art 1F (UNHCR Guidelines
on International Protection: Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the status of Refugees
HCR/GIP/03/05 (2003)) that there is the possibility of contact with the
country of origin. The guidelines state at [33]:
At all times the confidentiality
of the asylum application should be respected. In exceptional
circumstances, contact with the country of origin may be justified on
national security grounds, but even then the existence of the asylum
application should not be disclosed.
[72] The principal concerns of such
confidentiality provisions are the safety of the claimant and other
persons as well as the obvious concern to ensure that by claiming
refugee status the claimant does not become a refugee sur place. (That is a person who
was not a refugee when he or she left the country of origin but who
becomes a refugee at a subsequent date.)
[73] This underlying purpose leads,
I believe, to the view taken by the Authority that the duty of
confidentiality under s 129T is not "all encompassing": at [63].
Rather, the principal focus is on protecting the identity of the
claimant as a refugee claimant. The "particulars" are relevant
primarily in the context of the concern that their release would
identify the claimant as a claimant. Hence, the Explanatory Note to the
Immigration Amendment Bill 1998 at xvii said that s 129T:
[R]equires confidentiality to be maintained as to the
identity of a claimant or other person whose refugee status is being
considered, except in the particular circumstances specified in subsections (3) and (4).
[74] On its face then, s 129T does
not purport to make confidential everything the claimant discloses, for
example, to the Authority. The Authority put it this way in X's case (at [63]):
In summary, there is no all encompassing duty of
confidentiality so as to preclude the authorities in New Zealand from
making any inquiry about an
individual who, on arrival in New Zealand, seeks recognition as a
refugee. There will be exceptional cases where, as anticipated by s
129T(2) there must be confidentiality as to the very fact or existence
of the claim if disclosure of its fact or existence would tend to
identify the person concerned, or be likely to endanger any person. But
even in relation to this exception, the confidentiality is as to the
identity of the person as a refugee
claimant, not as to the identity or particulars of an individual
whose immigration status in New Zealand has yet to be determined;
provided, however, that at all times s 129T(2) is not breached. On the
evidence before us no such breach has occurred.
[75] Accordingly, as I see it, s
129T(1) requires the specified persons to keep confidential the
identity of X and Z as claimants and associated identifying
particulars. Section 129T(2) says that sometimes the need for
confidentiality may extend to protecting the very fact that there is a
claim for refugee status.
[76] This obligation of
confidentiality does not prevent disclosure to those involved in
determining X and Zs' claims such as Crown and defence counsel (s
129T(3)(a)). Nor does it prevent disclosure to those whose functions
mean they need to know about the claims (s 129T(3)(b)). Plainly,
disclosure to those not in a government department is contemplated.
Finally, if there is no safety issue, there is no need to maintain
confidentiality in the narrower sense envisaged by s 129T(1).
[77] This approach avoids the
overlap between s 129T(3)(a) and (b) that is apparent on the analysis
of the majority.
[78] For these reasons, I would
allow the appeals. My analysis does not dispose of the other issues
raised by Baragwanath J such as the potential effect on fair trial.
However, given the outcome of the appeal I simply note in relation to
those matters that I would accept the submissions on behalf of the
Crown that a declaration of the type envisaged by the High Court would
be premature.
[79] I add that I share the
majority's view (at [15] above) that there is scope for doubt as to the
appropriateness of the procedure adopted in the High Court in relation
to both cases.