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S v Refugee Status Appeals Authority
 

Court of Appeal, Wellington CA262/97; [1998] 2 NZLR 291
10 March 1998; 2 April 1998
Henry, Keith and Blanchard JJ

Treaties - Treaty interpretation - Article 1F(b)

Treaties - Treaty interpretation - Status of UNHCR Handbook

Convention Against Torture - whether relevant to interpretation of Article 1F(b)

Article 1F(b) - non-political crime - meaning of non-political

Article 1F(b) - serious non-political crime - meaning of serious

Article 1F(b) - serious non-political crime - whether seriousness of crime to be weighed against the gravity of the consequences of return to country of origin

The appellant, a citizen of Sri Lanka, was a member of Janatha Vimukthi Peramuna (JVP), a communist-based movement whose broad aim was to destabilize, and then take over, the country.  Part of the destabilization programme was to impose curfews on shop-keepers.  The appellant, with others, was engaged in enforcing these curfews.  The shop-keepers mostly complied because the alternative was either the burning down of the shop or the killing of the shop-keeper.  In 1988, during the JVP uprising the appellant, together with between four and ten others, went on a rampage of some 35 or 40 aggravated robberies.  When the gang descended on the shops they announced they were from the JVP.  This was sufficient to subdue the shop-keepers and none offered resistance.  All the youths were affected by heroin on the day.  The appellant said that some of the money was used to buy more drugs and for personal expenses.  He was unable to say whether or not any of it had actually reached the JVP.  He maintained that he did not make any of the demands, he was simply there, sometimes inside, sometimes outside the shop.  The Refugee Status Appeals Authority concluded that the appellant held a well-founded fear of persecution for a Convention reason and therefore satisfied the inclusion clause criteria of the Refugee Convention.  However, the Authority went on to hold that as there were serious reasons for considering that the appellant had committed a serious non-political crime outside New Zealand prior to his admission, he fell within the exclusion provisions of Article 1F(b).

In the Court of Appeal it was argued for the appellant that the High Court had erred in holding that the offences of aggravated robbery committed by the appellant were "serious" crimes.  It was further argued that the determination whether a claimant for refugee status comes within Article 1F(b) requires a balancing exercise, under which there is a need to weigh the seriousness of the crime against the gravity of the consequences of return to the country of origin.  That is, a crime will only be serious if its particular nature outweighs the duty to offer protection from a particular form of prosecution.

Held:

1    The phrase "serious crime" has to be construed in the context of the Convention and its stated purposes.  It has an humanitarian context and it is intended to give a means of protecting fundamental rights and freedoms.  Within that framework, however, the written words must be given their ordinary meaning when that is clear and does not yield an absurd or unreasonable result (see para [8]; [1998] 2 NZLR 291, 297, line 4).

2    To classify any crime as serious requires an evaluation not only of the elements which form the crime, but also of its facts and circumstances, as well as the circumstances of the offender which are relevant for the purposes of the criminal law.  The level of penalty inflicted or likely to be inflicted in those circumstances by the contracting state and probably, by the state in which the crime was committed, are relevant factors.  The contracting state then has the right to exclude from its Convention obligations persons who would otherwise qualify for refugee status.  The inquiry therefore must be whether the crime is of sufficient gravity to justify withholding the benefits conferred by the Convention.  The inquiry assumes that the offender has a well-founded fear of persecution, so there is no need to revisit that issue under Article 1F(b) (see para [8]; [1998] 2 NZLR 291, 297, line 9).

3    Exclusion is directed to offending in the upper end of the scale, which is likely to attract a severe penalty, at least in the nature of imprisonment for an appreciable period of years.  It is impossible to be any more precise, but the general intention is clear, and in the New Zealand criminal jurisdiction it can safely be said that a crime which is described as serious will be a crime grave within the meaning of the French text of the Refugee Convention (see para [6]; [1998] 2 NZLR 291, 296, line 26).

4    Article 1F(b) is clear and unambiguous.  It directs attention to the commission of a serious crime, nothing more, nothing less.  The seriousness of a crime bears no relationship to and is not governed by matters extraneous to the offending (see para [8]; [1998] 2 NZLR 291, 297, line 21).

5    There is nothing in Article 1F to justify reading into its provisions restrictive or qualifying words such as those which would be necessary to require a balancing exercise of the kind suggested.  The difficulty with the approach contended for by the appellant is apparent from its very formulation.  It requires the degree if criminality to be assessed not only from an analysis of the actual offending, but also by reference to factors which are external to and may well be (as is the present case) unrelated to the offending.  The difficulty is highlighted by the absence in Article 1F of any reference to the consequences of persecution, and by the fact that under Article 1F(b) the only qualification to the word "crime" is that it must be serious.  It is not easy to grasp the concept that the same offending may or may not be serious, depending upon the level or degree of persecution expected to be suffered in the homeland.  Acceptance of the concept would mean that in some circumstances applicant A would be excluded from the Convention provisions under Article 1F(b), but applicant B, who has committed an identical crime and bears the same culpability in the eyes of the law, would not (see paras [5] & [8]; [1998] 2 NZLR 291, 296, line 5 & 297, line 21).

6    Whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences.  It does not depend upon, nor does it involve, a comparative assessment of its gravity with the gravity of the perceived persecution if return to the homeland eventuates.  The gravity of the particular offending is relevant to whether or not it is to be classed as a serious crime, but this does not necessitate anything in the nature of a proportionality exercise outside that inquiry (see paras [12] & [21]; [1998] 2 NZLR 291, 298, line 35 & 300, line 12).

Gil v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4th) 497 (FC:CA); T v Secretary of State for the Home Department [1996] AC 742 (HL); Dhayakpa v Minister for Immigration and Ethnic
Affairs (1995) 62 FCR 556 (French J) followed and applied.

7    The Convention Against Torture has no relevance to the interpretation of Article 1F of the Refugee Convention.  The Convention Against Torture has its own regime and places its own separate obligations on contracting states in respect of all persons, not only refugees.  It cannot affect or control the exclusion provisions of the Refugee Convention.  Refusal of refoulement under Article 3 of the Convention Against Torture is a completely separate question, as also is the refoulement provision in Article 33 of the Refugee Convention.  Neither assist the construction of Article 1F(b) (see para [19]; [1998] 2 NZLR 291, 299, line 38).

8    It is important to remember that exclusion from the provisions of the Refugee Convention does not mean automatic expulsion from New Zealand, or refoulement.  New Zealand's obligations under the Convention Against Torture remain.  The appellant's rights to invoke such of the humanitarian provisions of the Immigration Act 1987 as may be applicable to him are also unaffected (see para [22]; [1998] 2 NZLR 291, 300, line 18).

Observations:

1    While the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status can be accorded due weight, it cannot override the function of, in this case the Court, in determining the meaning of the words of the Convention.  To the extent that para 156 of the Handbook refers to the need to strike a balance between the nature of the offence or the degree of persecution feared, it is not good law in New Zealand (see para [20]; [1998] 2 NZLR 291, 300, line 1).

2    Nothing of assistance in relation to the interpretation of Article 1F(b) can be found in the travaux préparatoires (see para [16]; [1998] 2 NZLR 291, 299, line 15).

3    While academic writing endorses a balancing or proportionality test, the arguments are substantially statements of preference rather than of purpose of construction of Article 1F(b).  The writings are not persuasive (see para [18]; [1998] 2 NZLR 291, 299, line 30).

Appeal dismissed

Other cases mentioned in the judgment

Butler v Attorney-General [1999] NZAR 205 (CA)

Gonzalez v Canada (Minister of Employment and Immigration) (1994) 115 DLR (4th) 403

Malouf v Canada (Minister of Citizenship and Immigration) (1995) 190 NR 230

S v Refugee Status Appeals Authority [1998] 2 NZLR 301 (Smellie J)

Counsel
David Ryken for the appellant
Michael Hodgen for the respondents

[Editorial note:  The decision of the High Court is reported as S v Refugee Status Appeals Authority [1998] 2 NZLR 301 (Smellie J).  For an undergraduate critique of the High Court and Court of Appeal decisions, see Annabel Ives, Exclusion for Extortion:  An Inquiry into the Suitability of a Balancing Exercise for Article 1F(b) of the Refugee Convention With Reference to S v Refugee Status Appeals Authority (June 1998).  This paper is to be found on the Comment page of this web site.

The non-refoulement obligation contained in Articles 32 and 33 of the Refugee Convention was subsequently incorporated into New Zealand domestic law by the Immigration Amendment Act 1999, s 40 which inserted a new s 129X into the principle Act, being the Immigration Act 1987.]

The judgment of the Court was delivered by

HENRY J  [1] The appellant is a citizen of the Democratic Socialist Republic of Sri Lanka.  He arrived in New Zealand on 8 March 1989, and applied for refugee status on 13 March 1989.  It was declined on 22 May 1992. On 20 December 1994 he made a further application for refugee status, relying on similar but also additional grounds.  This was declined by the Refugee Status Board of the New Zealand Immigration Service, resulting in an appeal to the Refugee Status Appeals Authority.  In its decision of 30 April 1997 the authority declined to grant refugee status.  On 8 May 1997 the appellant issued proceedings in the High Court seeking judicial review of the authority's decision.  The application was dismissed by Smellie J [see [1998] 2 NZLR 301], and the present appeal results.  The case for the appellant turns on a challenge to the authority's finding that the provisions of the 1951 Convention Relating to the Status of Refugees did not apply to him by reason of its art 1F(b).  Article 1F states:

[2] The question of the reviewability of decisions of the authority was referred to by this Court in Butler v Attorney-General (Court of Appeal, Wellington, CA 181/97, 13 October 1997).  As there, in the present case the parties invited the Court to accept jurisdiction, and we were advised that legislation on this point is being considered for introduction this year.  In the circumstances we do no more than again draw attention to the desirability of legislative attention to this matter - its importance should not be overlooked.

Background

[3] The facts which are relevant for present purposes are conveniently set out in the following extract from Smellie J's judgment at pp 304 - 305:

The appellant's argument

[4] Two findings of the authority relevant to refugee status are not now under challenge.  First, that the appellant has a real chance of suffering persecution at the hands of the police and/or security forces if he were returned to Sri Lanka, and second, such persecution has a convention ground, namely political opinion, attached to it.  The High Court finding that the offences of aggravated robbery committed by the appellant were "non-political" crimes is now accepted.  The crucial issue on appeal therefore is whether the authority's finding that these were serious crimes within the meaning of art 1F(b) was properly based. The primary submission made by Mr Ryken on behalf of the appellant is that determination of whether a claimant for refugee status comes within art 1F(b) requires a balancing exercise, under which there is a need to weigh the seriousness of the crime against the gravity of the consequences of return to the person's homeland.  The thrust of the argument, which is supported by some academic writing, is that a crime will only be serious if its particular nature outweighs the duty to offer protection from a particular form of prosecution.

[5] The difficulty with this approach is apparent from its very formulation.  It requires the degree of criminality to be assessed not only from an analysis of the actual offending, but also by reference to factors which are external to and may well be (as is the present case) unrelated to the offending.  The difficulty is highlighted by the absence in art 1F of any reference to the consequences of persecution, and by the fact that under para (b) the only qualification to the word "crime" is that it must be serious.  It is not easy to grasp the concept that the same offending may or may not be serious, depending upon the level or degree of persecution expected to be suffered in the homeland.  Acceptance of the concept would mean that in some circumstances applicant A would be excluded from the convention provisions under art 1F(b), but applicant B, who has committed an identical crime and bears the same culpability in the eyes of the law, would not.

[6] In the High Court it was also argued for the appellant that the crimes in question should not have been classed in themselves as serious.  Although not abandoning that contention in this Court, Mr Ryken recognised the force of the Judge's reasoning.  We are not persuaded that there was any reviewable error in the finding by the authority, endorsed in the High Court, that these were serious crimes of a category envisaged by art 1F(b).  There was ample justification for so viewing them.  In reaching this conclusion we have not overlooked Mr Ryken's submission that proper weight must be given to the convention's use in the French text of the term "crime grave".  We agree that the exclusion is directed to offending in the upper end of the scale, which is likely to attract a severe penalty, at least in the nature of imprisonment for an appreciable period of years.  It is impossible to be any more precise, but the general intention is clear, and in the New Zealand criminal jurisdiction it can safely be said that a crime which is described as serious will be a "crime grave".  We turn therefore to the reasons for concluding, as we do, that it was not part of the role of the authority to weigh the gravity of the crimes against the gravity of the possible persecution in determining nevertheless whether or not in the
particular circumstances these were serious crimes for the purposes of art IF(b).

Construction of art IF(b)

[7] Article 1 contains the provisions of the convention governing the definition of the term "refugee".  Included (1A(2)) is a person 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 nationality and unable or owing to the fear of persecution is unwilling to return to it.  Section C of art 1 provides that the convention ceases to apply to any person coming under section A if certain specified events occur.  Sections D, E and F are all exclusionary provisions.  Article 1 is a comprehensive code for ascertaining the persons whose status as refugees will or will not be recognised and afforded protection under other operative provisions of the convention.  The remaining articles do not impinge on the issue of refugee status or the applicability of the convention provisions to particular persons.

[8] We accept, as Mr Ryken submitted, that the phrase "serious crime" has to be construed in the context of the convention and its stated purposes.  It has an humanitarian context, and is intended to give a means of protecting fundamental rights and freedoms.  Within that framework however, the written words must be given their ordinary meaning when that is clear and does not yield an absurd or unreasonable result.  To classify any crime as serious requires an evaluation not only of the elements which form the crime, but also of its facts and circumstances, as well as the circumstances of the offender which are relevant for the purposes of the criminal law.  The level of penalty inflicted or likely to be inflicted in those circumstances by the contracting state and probably, as Smellie J took into account in the present case, by the state in which the crime was committed, are relevant factors.  The contracting state then has the right to exclude from its convention obligations persons who would otherwise qualify for refugee status.  The inquiry therefore must be whether the crime is of sufficient gravity to justify withholding the benefits conferred by the convention.  The inquiry assumes that the offender has a well-founded fear of persecution, so there is no need to revisit that issue under art 1F(b). Article 1F(b) is clear and unambiguous.  It directs attention to the commission of a serious crime, nothing more, nothing less.  The seriousness of a crime bears no relationship to and is not governed by matters extraneous to the offending.  There is nothing in art 1F to justify reading into its provisions restrictive or qualifying words such as those which would be necessary to require a balancing exercise of the kind suggested.  Mr Ryken accepted that no such qualification should be applied to paras (a) or (c).  We can discern no good reason for treating para (b) differently.  Paragraph (a) is concerned with particular types of crime which are of international concern; para (b) with crimes of a common nature, and para (c) with acts having a particular international character.  In each category the range of gravity is wide, as is the gravity of the perceived persecution.  There is also an obvious interpretation difficulty in isolating out para (b) in the way suggested when regard is had to the framework of art 1F itself.

[9] Considering the wording of art 1F(b), it is perhaps not surprising that the case law does not support the appellant's submissions.  In Canada the balancing exercise in question has been effectively ruled out in respect of all three paragraphs of art 1F.  In Gil v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4th) 497, the Federal Court of Appeal confirmed an earlier rejection of a proportionality test under para (a) (Gonzalez v Canada (Minister of Employment and Immigration) (1994) 115 DLR (4th) 403). In giving the judgment of the Court in Gil, Hugessen JA having noted that observed at p 517:

[10] The Court there thought it appropriate to use a proportionality test under para (b), not on the question of seriousness but only as part of the process in determining whether a crime should be branded as political, something no longer an issue in the present case.  Gil (a para (b) case) was endorsed in clear terms and followed by the Federal Court of Appeal in Malouf v Canada (Minister of Citizenship and Immigration) (1995) 190 NR 230, Hugessen JA stating: [11] The issue was also addressed by the House of Lords in T v Secretary of State for the Home Department [1996] AC 742.  Lord Mustill discussed the concept of proportionality in relation to the question of classifying a crime as political.  At pp 768 - 769 His Lordship said:  [12] Although that case was directly concerned with the "political" inquiry, it can equally be said that a crime is or is not serious when committed, and its character as such cannot depend on later consequences should the offender be returned to the homeland.  Clearly, as we have earlier recognised, the gravity of the particular offending is relevant to whether or not it is to be classed as a serious crime, but this does not necessitate anything in the nature of a proportionality exercise outside that inquiry.  Lord Lloyd of Berwick in his speech cited Gil with approval.

[13] A similar approach was adopted by French J in the Federal Court of Australia in Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556, where it was held that there is no obligation under the convention on a receiving state to weigh up the degree of seriousness of a serious crime against the possible harm to the applicant if returned to the state of origin.

[14] All the above authorities contain statements of principle.  They cannot be distinguished by an analysis of the seriousness of the particular crime, and a resulting contention that it is such that a proportionality test would in any event be satisfied.  The principle is that the test is not required in an art IF(b) consideration.

[15] Mr Ryken drew support for his submission from three main sources.  The first is from Takkenberg's The Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1989, Dutch Refugee Council, Amsterdam), particularly from a passage at p 497, vol III which contains the following observation from the President:

[16] The meaning to be attributed to the observation is not clear, but more importantly if given that now sought to be attributed to it, it is difficult to see how the qualification can be read into the words of para (b).  We find nothing in the other references the Court was referred to in the Travaux which are of  assistance.
 
[17] The second is academic writing.  Mr Ryken relied on Grahl-Madsen, The Status of Refugees in International Law: Refugee Character (1966, A W Sijthoff Leyden) vol I at pp 289 - 295, and his discussion on art 1F(b).  The author adopts what he terms a restrictive interpretation, and says at p 297: [18] This, he contends, means there is little room for a flexible (proportionality) test.  His endorsement of the balancing or proportionality test is not unequivocal.  The balancing test is propounded by J C Hathaway, The Law of Refugee Status (1991, Butterworths, Canada) and by G S Goodman-Gill, The Refugee in International Law (2nd ed, 1996, Clarendon Press, Oxford).  The arguments, which are substantially statements of preference rather than of purposive construction of art 1F(b), we do not find persuasive.

[19] The third source was the 1984 Convention Against Torture.  Article 3.1 of that convention gives to political torture victims absolute protection.  We accept Mr Hodgen's submission that this provision has no relevance to the present issue.  The Convention Against Torture has its own regime and places its own separate obligations on contracting states in respect of all persons, not only refugees.  It cannot affect or control the exclusion provisions of the refugee convention.  Refusal of refoulement under art 3.1 of the torture convention is a completely separate question, as also is the refoulement provision in art 33 of the refugee convention.  Neither assist the construction of art IF(b).
 
[20] Mr Ryken also referred to the Handbook on Procedures and Criteria for Determining Refugee Status: under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva, 1988), published by the Office of the United Nations High Commissioner for Refugees, which in para 156 refers to the need to strike a balance between the nature of the offence or the degree of persecution feared.  Although the handbook can be accorded due weight, it cannot override the function of, in this case the Court, in determining the meaning of the words of the convention.

Conclusion

[21] Having taken into account all the matters urged by counsel, we have reached the conclusion that the words of art IF(b) being clear and unambiguous, should not be given some special meaning, requiring the addition of qualifying words which are not easily capable of insertion, and are unnecessary to give an acceptable meaning in context to the paragraph.  Whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences.  It does not depend upon, nor does it involve, a comparative assessment of its own gravity with the gravity of the perceived persecution if return to the homeland eventuates.

[22] It is important to remember that exclusion from the provisions of the refugee convention does not mean automatic expulsion from New Zealand, or refoulement.  This country's obligations under the torture convention remain.  The appellant's rights to invoke such of the humanitarian provisions of the Immigration Act 1987 as may be available to him are also unaffected.

[23] For the above reasons the appeal is dismissed.  Counsel can submit memoranda as to costs should that be necessary.

[24] Appeal dismissed. 

Solicitors for the appellant:  Richard S Wood (Auckland)
Solicitors for the respondents:  Crown Law Office (Wellington)