Court of Appeal Cases 

Court of Appeal, Wellington CA746/2009; [2010] NZCA 522
27 October 2010; 18 November 2010
Hammond, Arnold & Stevens JJ

Article 31 - penalties - illegal entry to New Zealand - use of false passport

Passport - evidence - whether decision on refugee status and the reasons for that decision admissible against defendant

Passport - reasonable excuse - what would constitute - Passports Act 1992, s 31(1)(f)(ii)

Passport - use of false passport - whether common

Treaties - interpretation of domestic legislation to be consistent with international obligations - Immigration Act 1987, s 129D

The appellant, a national of  Syria, arrived at Auckland on 28 November 2005 with his wife and four children having travelled to New Zealand via Lebanon,  Doha and Australia. To the immigration officers at Auckland International Airport he and his wife presented false Belgian passports in their own names,  his wife's passport also naming their children. On their arrival cards they claimed to be Belgian citizens wishing to visit New Zealand as tourists for fourteen days only. On the false passports being detected at the airport X was interviewed by an immigration officer. During the interview X claimed refugee status on the grounds that he was wanted by Syrian authorities for stealing and destroying politically sensitive materials from the office of a high-ranking military official after he had performed plumbing work in that office. X was declined refugee status by a refugee status officer on the basis that the story was fabricated. His claim thereafter proceeded to the Refugee Status Appeals Authority (RSAA) but both X and his family were unsuccessful on appeal. However, in March 2010 the Removal Review Authority held that it would not be contrary to the public interest to allow the family to remain in New Zealand. It directed that they be granted residence permits. The Authority, although acknowledging the untruthfulness of the plumbing story, also accepted that in the early 1990s X had in fact been detained and beaten by Syrian authorities.

Two charges of possessing a false passport knowing it to be so and without reasonable excuse were laid against the appellant on 30 November 2005. That prosecution was then suspended until after the most recent of the unsuccessful appeals to the RSAA. The appellant was convicted after trial by jury in the District Court at Manukau in July 2009 and was sentenced to two years and three months imprisonment.

On his appeal against conviction the issue was whether an unsuccessful claimant for refugee status could avail himself of the "reasonable excuse" defence to a charge of possessing a false passport under s 31(1)(f)(ii) of the Passports Act 1992. In R v Zanzoul (CA297/06, 6 December 2006) the Court of Appeal considered but left open this issue. The Supreme Court in declining to grant leave to appeal in Zanzoul v R [2008] NZSC 44 had said (obiter) that it was prepared to assume that by reason of Article 31 of the Refugee Convention it might be an abuse of process to charge a refugee with a passport offence where the passport has been used as a means of putting the refugee in a position to claim refugee status.

A subsidiary issue was whether decisions of the RSAA and the reasons for those decisions were admissible against the appellant. However, it became unnecessary for this issue to be decided and the Court of Appeal declined to make any observations about it except peripherally in the concluding section of the judgment. 

Held:

1   In principle a person with a genuine belief in their status as a refugee could be considered to have a reasonable excuse for the purposes of s 31(1)(f). That is, because of the circumstances facing asylum-seekers it may be objectively reasonably for them to carry false documentation, regardless of whether they are granted asylum or not. The genuine belief must be bona fide. A genuine belief that one will successfully attain refugee status held simultaneously with the knowledge that in fact one is not entitled to refugee status will not give rise to a reasonable excuse. In the end, these questions are all questions of fact. As the Crown properly conceded, the appellant's arrival interview and his account of a brush with the Syrian intelligence service was enough to put "reasonable excuse" in issue. The Crown then had the burden of proving that it was not objectively reasonable for the appellant to think that he could be regarded as a refugee in New Zealand. Whether an accused has such a belief is a question of fact (see para [27]).

R v Zanzoul (CA297/06, 6 December 2006); Zanzoul v R [2008] NZSC 44 and AHK v Police [2002] NZAR 531 referred to.

2   The trial judge had misapprehended the nature of RSAA decision-making, especially as it stands in contrast to criminal justice processes. The RSAA's evaluation that the appellant was not a refugee was not equivalent to an exclusion of the defence of reasonable excuse. Notwithstanding the appellant's failure to gain refugee status, there may still have been a factual basis available to the jury, not excluded by the prosecution to the required standard, that would have allowed it to uphold the defence of reasonable excuse and deliver not guilty verdicts. Specifically, the jury may have acquitted on the grounds that there was at least a reasonable doubt that the appellant had a bona fide belief in his claim to refugee status as a consequence of being detained and beaten by authorities in the early 1990s. The jury was not left that possibility to consider (see para [36]).

Attorney-General v Tamil X [2010] NZSC 107 referred to.

Observations

1   Difficulties arise when offences such as those under s 31(1)(f) are applied to asylum-seekers. That is because refugees fleeing from persecution in their home country are usually in no position to do so in a legally orthodox way. They are often forced to resort to false immigration papers including passports (see para [16]).

R v Uxbridge Magistrates' Court, Ex parte Adimi [2001] QB 667 referred to.

2   The evidence of an immigration officer at the appellant's trial was that in his experience three out of four asylum-seekers presented with false documentation. Genuine refugees are therefore on the face of it highly susceptible to criminal liability for offences such as those prosecuted in this case. But to criminalise genuine refugees in that way is to rub salt into the wound (see para [17]).

3   Article 31 of the Refugee Convention grants refugees an amnesty against the penal consequences of their otherwise illegal entry or presence until their status is regularised or they obtain admission to another country. Its purpose is to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law (see para [19]).

R v Uxbridge Magistrates' Court, Ex parte Adimi [2001] QB 667 referred to.

4   While the provisions of the Refugee Convention are expressed by s 129D of the Immigration Act 1987 to apply to refugee status officers and the RSAA, it appears that practice has been that prosecutions against asylum-seekers for possession of a false passport are only advanced after the formal process denying the asylum-seeker such status has concluded. That is as it should be. It would be contrary to the Convention to prosecute and convict under s 31(1)(f)(ii) those who present false passports yet who are later granted refugee status. This practice also accords with the general principle that ordinarily it should be presumed that the Executive intends to be bound by its international obligations (see para [21]).

Tavita v Minister of Immigration [1994] 2 NZLR 257 referred to.

A    The appeal is allowed and the convictions set aside.

B    There will be no order for a retrial.

C    The appellant’s name and any identifying particulars are suppressed pursuant to s 129T of the Immigration Act 1987. There is to be no search or copying of the Court file without the leave of a District Court Judge.

Solicitors for the Respondent: Crown Law Office (Wellington)