High Court Cases 

High Court Auckland CIV2003-404-4373; [2004] NZAR 440; (2003) 20 CRNZ 600
4, 13 November & 11 December 2003; 16 December 2003
Baragwanath J 

Article 31 - penalties - whether Article 31 a shield to prosecution for using a false identity

Confidentiality - application of s 129T to refugee applications made after 1 October 1999

Immigration Act 1987 - confidentiality - application of s 129T to refugee applications made after 1 October 1999

Immigration Act 1987 - effect of claimant leaving New Zealand - application of s 129V to refugee applications made after 1 October 1999

Procedure of RSAA - confidentiality - application of s 129T to refugee applications made after 1 October 1999

Procedure of RSAA - effect of claimant leaving New Zealand - application of s 129V to refugee applications made after 1 October 1999

The applicant, a citizen of Pakistan who lived in Kuwait for most of his life, returned to Pakistan in 1990 from where he travelled to New Zealand, arriving at Auckland on 12 January 1991.  At the airport he applied for refugee status, providing a false name and date of birth.  On the basis of that claim to refugee status he was issued with a visitor's permit and a certificate of identity.  After four months he filed an application for a work permit together with a formal application for refugee status, again using his false name.  The work permit application was granted but prior to the determination of his claim to refugee status he left New Zealand and resumed working in Kuwait.

Almost nine years later, now using his correct name, the applicant obtained from the New Zealand Embassy in Riyadh, Saudi Arabia, a visitor's visa and on arriving in New Zealand on 18 April 2000 was granted a visitor's permit.  On 5 October 2000 he married a New Zealand citizen and on 15 November 2000 lodged an application for residence in New Zealand in his correct name based on his marriage to the New Zealand citizen.  

On 5 July 2001 the applicant was interviewed by an officer from the New Zealand Immigration Service (NZIS) as part of the procedure used to determine the residence application.  The applicant was asked if he had previously been to New Zealand and he said that he had not.  Subsequently on further interview he admitted that he had come to New Zealand in 1991 and had used a false name when making the refugee status application and when obtaining the work permit.

The applicant was charged with two counts under s 229A of the Crimes Act 1961 that with intent to defraud he used a document capable of being used to obtain a benefit, namely the application for refugee status and the application for work permit, for the purpose of obtaining for himself a benefit, namely refugee status in New Zealand and a work permit.  

On an application for stay of the indictment a Judge of the District Court held that there was no impediment to the prosecution.  In his judgment, although a refugee was protected by Article 31 of the Refugee Convention from prosecution for using false documentation, or no documentation, to obtain entry to New Zealand, once safely within the country and subject to the protection of Article 31, he or she was obliged to adhere as strictly as other New Zealanders to the domestic law.  

This decision was challenged in the High Court by way of an application for judicial review.  Three major issues were identified.  First, the factual basis on which the application was to be determined and whether confidentiality as to the particulars of claimants for refugee status prevented the Crown from adducing evidence in criminal proceedings what was said by the applicant concerning his refugee status application.  The applicant elected to refrain from advancing his factual defence prior to commencement of the criminal trial but asserted that on his challenge to the indictment the Court was required to assume that he was and is entitled to refugee status simply by virtue of his claim for it on 12 January 1991.  Second, the effect of s 129V of the Immigration Act 1987 which provides that if a refugee claimant leaves New Zealand, his or her claim or appeal is to be treated as withdrawn.  Third the interface between the Crimes Act 1961 and New Zealand's obligations under Article 31 of the Refugee Convention which provides that contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Held:

1   As to the factual basis for determining the application the Court could not accept the submission that it was required on the present application to assume that the applicant was and is entitled to refugee status by virtue simply of his claim for it on 12 January 1991.  Both on an application for stay and on an application for judicial review the Court must require a substantial factual basis before according relief.  As there was no factual basis for the applicant's submissions the application failed at the threshold (see paras [43] & [44]).

Observations:

1    While the refugee status application made on 24 May 1991 preceded the coming into effect of s 129T of the Immigration Act 1987 (1 October 1999), there was obvious force to the submission that s 129T became operative in relation to the future disclosure of existing information concerning refugee status applicants.  In any event, the section was relevant to the development of the common law in accordance with principles that apply in another part of the law.  But on the facts the applicant had not discharged the threshold burden that there was a risk to his safety or that any other person would be in danger by disclosure in this case (see paras [47] - [51]).

2    It was not necessary to adjudicate upon the competing submissions as to s 129V of the Immigration Act 1987.  However, there was considerable force in the argument that a bona fide refugee status applicant who comes into New Zealand using false documents but who satisfies the conditions of Article 31(1) of the Refugee Convention should not be prosecuted even if by reason of having left New Zealand his claim to refugee status was deemed statutorily to have been withdrawn for the purposes of s 129V.  However, if it has become clear that the applicant was one of the high percentage whose claims are manifestly unfounded there can be no reason for criminal proceedings to be withheld.  If, however, the claimant has established entitlement to refugee status there would be a plain infringement of Article 31 if a prosecution were nevertheless brought (see paras [52] - [55]).

3    As to how far the protection of Article 31 extends, the decision of the District Court Judge draws the line at the stage the applicant for refugee status is safely within New Zealand.  The judgment does not, however, grapple with the fact that the protection of Article 31 extends not only to illegal entry but also to illegal presence of a refugee.  While the offence provision in s 142(1)(c) of the Immigration Act 1987 recognises a defence of "reasonable excuse" and thus closely parallels the "good cause" stipulation of Article 31(1), s 229A of the Crimes Act 1961 has no exculpatory element.  While the problem could be approached via the common law defence of necessity preserved by s 20 of the Crimes Act 1961 the ambit of that defence has been confined for the good reason that it can be seen to acquiesce in crime.  As to s 129X(2) of the Immigration Act 1987, this confers not a legal right but an ability to challenge the Executive discretion to determine how best New Zealand should perform its obligations at international law.  Except to the extent they have become part of domestic law, international obligations are the province of the Executive rather than of the judiciary.  Nevertheless there is judicial preparedness to intervene to assist where there has been failure to understand and duly to apply the Convention.  In a suitable case the Court might well conclude that it should in its judgment draw the fact of error to the attention of the Executive; in a sufficiently clear case it might go further, by issuing a formal declaration.  But in the first instance at least it must be for the Executive, in the persons of the immigration officers and of Crown Solicitors, to ensure compliance with the Refugee Convention and a successful challenge must establish that they have fallen short of their obligations.  In the present case that had not been made out (see paras [56] - [76]).

R v Uxbridge Magistrates' Court, Ex p Adimi [2001] QB 667 discussed.

Application dismissed.

Other cases mentioned in judgment

Adan v Secretary of State for the Home Department [1999] 1 AC 293 (HL)
Attorney-General v E [2000] 3 NZLR 1958 (CA)
Blatch v Archer (1774) 1 Cowp 63, 65 
Butler v Attorney-General [1999] NZAR 205 (CA)
Butler v Attorney-General HC Akld M37/93, 22 January 1993 (Barker J)
Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 (HL)
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89 (HL)
Kumar v Immigration Department [1978] 2 NZLR 553 (CA)
Lewis v Attorney-General of Jamaica [2001] 2 AC 50 (PC)
New Zealand Maori Council v Attorney-General [1987] 1 NZLR 687 (CA)
Tavita v Minister of Immigration  [1994] 2 NZLR 257 (CA)
The Miraflores v The Abadesa [1967] 1 AC 826, 847 (HL)
Thomas v Baptiste [2000] 2 AC 1 (PC)
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 (HL)

Counsel
R J Hooker for the applicant
D G Johnstone for the respondents

BARAGWANATH J

THIS PROCEEDING, THE CRIMINAL PROCEEDING AND THE CRIMES ACT  
THE 1951 REFUGEE CONVENTION  
THE 1999 REFUGEE LEGISLATION  
THE FACTS  
THE INFORMATIONS  
THE REFUGEE CONVENTION AND ADIMI   
THE JUDGMENT OF THE DISTRICT COURT   
THE AFFIDAVITS  
DISCUSSION   
The first issue: the factual basis for determining the application  
Confidentiality  
The second issue: s 129V   
The third issue: where is the line to be drawn and by whom?   
DECISION   

THIS PROCEEDING, THE CRIMINAL PROCEEDING AND THE CRIMES ACT

[1] This application for judicial review concerns the interface between s 229A of the Crimes Act 1961 and New Zealand’s obligations under art 31 of the Refugee Convention 1951 to which New Zealand has acceded.  It is brought by the applicant Mr Ghuman against the Registrar of the District Court at Auckland as first respondent and the Crown Solicitor at Auckland as second respondent to challenge a decision of the District Court delivered by Judge Hubble on 28 July 2002 dismissing his application for stay of an indictment laid by the Crown Solicitor which includes the following counts

1    THE CROWN SOLICITOR AT AUCKLAND charges that MUHAMMAD ANWAR GHUMAN on or about 24 May 1991 at Auckland, with intent to defraud used a document capable of being used to obtain a benefit, namely, an application for refugee status in the name of ATIF GHUMAN, for the purpose of obtaining for himself a benefit, namely refugee status in New Zealand.

2    THE said Crown Solicitor further charges that MUHAMMAD ANWAR GHUMAN ON OR ABOUT 24 May 1991 at Auckland, with intent to defraud used a document capable of being used to obtain a benefit, namely, an application for work permit in the name of ATIF GHUMAN, for the purpose of obtaining for himself a benefit, namely a work permit.

[2] Those counts are brought under s 229A of the Crimes Act 1961

229A    Taking or dealing with certain documents with intent to defraud

Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to defraud,—

(a)  Takes or obtains any document that is capable of being used to obtain any privilege, benefit, pecuniary advantage, or valuable consideration; or

(b)  Uses or attempts to use any such document for the purpose of obtaining, for himself or for any other person, any privilege, benefit, pecuniary advantage, or valuable consideration.

[3] The applicant has pleaded not guilty to the indictment which includes a third count to which no challenge is made in the present proceeding.  

THE 1951 REFUGEE CONVENTION

[4] The Refugee Convention provides

Article 31

Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

…

(reprinted in 1999 New Zealand Statutes Vol 1 p220)

[5] On 1 April 1999 the New Zealand legislature responded by the Immigration Amendment Act 1999 to the call of the Court of Appeal in Butler v Attorney-General [1999] NZAR 205 to legislate in respect of refugee claims.  It did so by enacting inter alia Part VIA of the Immigration Act 1987 (the Act) commencing

129A Object of this Part

The object of this Part is to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention.

[6] The Refugee Convention was not adopted en bloc into New Zealand domestic law although by s 129D it was added as a Sixth Schedule to the principal Act.  Section 129D(1) provides that

In carrying out their functions under this Part, refugee status officers and the Refugee Status Appeals Authority are to act in a manner that is consistent with New Zealand’s obligations under the Refugee Convention.

And s 129X(2) provides

129X …

(2) In carrying out their functions under this Act in relation to a refugee or refugee status claimant, immigration officers must have regard to the provisions of this Part and of the Refugee Convention.

[7] It follows that

a)  the conduct of refugee status officers and the Refugee Status Appeals Authority will be challengeable for conduct inconsistent with the Convention in the same way as in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 687 the Crown was held challengeable for conduct inconsistent with another treaty; and

b)  the conduct of immigration officers will be subject to the less invasive form of Wednesbury review if they fail to have regard to the Convention as a mandatory consideration.

[8] The offences section was simultaneously amended to provide

142 Offences

(1) Every person commits an offence against this Act who—…

(c)  Without reasonable excuse, produces or surrenders any document or supplies any information to an immigration officer or visa officer or refugee status officer knowing that it is false or misleading in any material respect;…

And s 129L added to the functions of refugee status officers that of

b)  Determining whether a decision to recognise a person as a refugee was properly made, in any case where it appears that the recognition given by a refugee status officer (but not by the Authority) may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information, and determining to cease to recognise the person as a refugee in such a case if appropriate:…

Mr Johnstone did not dispute that even prior to the 1999 amendment New Zealand’s accession to the Refugee Convention required consideration of its provisions by such decision-makers in terms of Tavita v Minister of Immigration  [1994] 2 NZLR 257 (CA).

[9] The final provision of current relevance is s 129T, which provides, subject to certain exceptions, that

…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…

THE FACTS

[10] On 21 November 2003 I issued a minute to the parties inviting them to confirm or correct the following summary of the facts drawn from the affidavits.  The Crown expressed agreement with it; Mr Hooker advised that Mr Ghuman, facing criminal charges, makes no admissions.

[11] The applicant is of Pakistan nationality but until 16 April 2000 lived his whole life in Kuwait.  At the time of the Gulf war he fled to Pakistan from Kuwait leaving all his assets in Kuwait.  He was distressed by the lack of resources and sold his wife’s jewellery to pay an agent who arranged his travel to New Zealand in 1991.  On 12 January 1991 he arrived at Auckland International Airport on a Garuda flight.  He was interviewed by a border and investigations officer to whom he produced a Pakistani passport in the name of Muhammed Anwar.  He made oral application for refugee status stating that his name was Atif Ghuman and gave his date of birth as 20 August 1950.  He was issued with a visitor’s permit and a certificate of identity in the name of Atif Ghuman.  That name was false; the applicant’s real name is Muhammed Anwar Ghuman; his true date of birth is 14 February 1949. 

[12] After being in New Zealand for over four months with the assistance of a solicitor in good standing he completed an “application for work permit” in the name of Atif Ghuman.  The New Zealand Immigration Service form contained on its second page the note

If you make any false statement you commit an offence and your application may be declined or your permit may be revoked.

[13] The final page of the form, which provided for the signature of the applicant, also contained a box in the following terms

Declaration

I understand the notes and questions in this form
and
the information given is true and complete

Signature of applicant

[14] He completed and signed the application in the false name Atif Ghuman dating it “24/5/91”.   In a section of the form requiring him to show any other name he was known by he recorded the letters “N/A”.  

[15] On the same date 24 May 1991 he signed a ten page typed “application for refugee status” with a series of attachments purporting to support the claim that Atif Ghuman was a member of the Pakistan Peoples Party (PPP); that a warrant for his arrest had been issued on 27 November 1990; and that Atif Ghuman had participated in political activities of the PPP, had became involved in political crimes in Pakistan and was likely to be arrested and imprisoned if he returned there.

[16] It is the submission to the New Zealand authorities of the application for refugee status and the application for the work permit that is relied on in support of the two challenged criminal charges.

[17] On 17 November 1991 the applicant was granted a work permit but his application for refugee status was still under consideration when on 26 August 1991 he visited the Immigration Service to advise that he and his family were planning to leave New Zealand. By that stage the war in Kuwait was over and he wished to return there where his assets were.  His company sent him a ticket to return to Kuwait and he resumed working there.

[18] Nearly nine years later on 27 March 2000 the applicant under his correct name of Muhammed Anwar Ghuman secured from the New Zealand embassy in Riyadh, Saudi Arabia, a visitor visa.  On 18 April 2000 he arrived in New Zealand and was granted a visitor’s permit.

[19] On 5 October 2000 he married a New Zealand citizen and on 15 November 2000 lodged an application for residence in New Zealand in the name of Muhammed Anwar Ghuman based on his marriage to a New Zealand citizen.  The application contained a current photograph.

[20] On 5 July 2001 the applicant was interviewed by an officer from the New Zealand Immigration Service as part of the procedure used to determine the application.  The applicant was asked if he had previously been to New Zealand and he said he had not.  This false statement forms the basis of the third count laid under s 142(c) of the Immigration Act (para [6] above), to which no challenge is made in the present proceeding.

[21] Subsequently the photographs attached to the 1991 application for a work permit and the 2000 application for residence in New Zealand were compared and the applicant’s true identity was revealed.  

[22] On 4 December 2001 he was interviewed by an investigator from the New Zealand Immigration Service.  He admitted that his real name is Muhammed Anwar Ghuman and that he had come to New Zealand in 1991 using the name Atif Ghuman, which he had employed when making his applications for refugee status and obtaining the work permit.

[23] In explanation he said that he had used a false name in 1991 on advice from an agent who had helped him to get to New Zealand to claim refugee status.  He said he had chosen the name Atif Ghuman, which is the name of his son.  Asked why he had not declared his previous travel to New Zealand when he was interviewed in July 2001 he said he was afraid of being deported from New Zealand and having to start his life again.

[24] I invited Mr Hooker and Ms Clark to advise me what they say is the factual basis on which the application for review should be determined.  Mr Hooker takes the high ground: that a simple claim for recognition as a refugee requires the domestic courts to proceed on the factual assumption of such status unless and until there is a determination of the Refugee Status Branch or the Refugee Status Appeals Authority to the contrary.

THE INFORMATIONS

[25] Informations were laid in the District Court by Mr Pawson, an immigration officer carrying out his functions under the Immigration Act.  Those informations form the basis of the challenged charges.

THE REFUGEE CONVENTION AND ADIMI

[26] To determine the boundary between refugee law and the criminal law can prove an exacting task.   What is the ambit of

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who,… enter or are present in their territory without authorization…?

[27] What if refugees have committed offences related to their attempt to secure illegal entry or to maintain illegal presence and infringe laws that would render them liable to penalties?  There is potential for collision between the fundamental criminal law of the state, especially that dealing with fraud and deceit, and the obligations it has assumed by subscribing to art 31.  That topic has not been addressed at appellate level in New Zealand but has in England in R v Uxbridge Magistrates' Court, Ex p Adimi, a decision delivered on 29 July 1999 and reported in [2001] QB 667 that has received wide support from commentators. 

[28] In Adimi the Divisional Court considered claims in four different cases in which the Crown Prosecution Service was prosecuting or had secured convictions for making false statements against refugee status claimants without consideration of the significance of art 31.  The Court noted the failure of English law and public administration to reconcile the state’s responsibility to give effect to the international convention with the administration of criminal law in an era where

The combined effect of visa requirements and carrier’s liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents.  (674B) 

[29] The judgments contain meticulous analysis of the arguments and the principles.  Although he clearly considered that the Convention had been infringed Simon Brown LJ declined to quash the Crown Prosecution Services decision to prosecute and to grant declaratory relief.  He stated

Rather I would let our judgments speak for themselves with a view to ensuring that mistakes of the past are not repeated in the future.  It must be hoped that these challenges will mark a turning point in the Crown’s approach to the prosecution of refugees for travelling on false passports.  Article 31 must henceforth be honoured.

[30] Newman J considered that

…the principle has long been recognised that the Court will stay its hand in circumstances where somebody is before the Court and that there are sufficient facts to conclude that by virtue of some right in that individual there may be immunity from the proposed prosecution.  Similarly, if the decision to prosecute is flawed in accordance with public law principles, the Court will act to see if the decision should be reconsidered… There is recent authority which shows that where a pardon has been granted, which cannot be relied upon because a condition of the pardon has been breached, it may nevertheless be an abuse of process to prosecute…

[31] He was therefore of the view that the Court did have jurisdiction to intervene.  In respect of two of the cases he concluded that a case for eligibility to be treated as refugees had been established and each had a case for being granted protection under art 31 which received no configuration at all.  But he held that quashing the convictions was not open to the Court and there was no clear case for quashing the decisions to prosecute.  

[32] Simon Brown LJ observed in conclusion

…we allow these applications [for judicial review]… we have not thought it necessary or appropriate to make specific orders or declarations, but rather we let our judgments speak for themselves.  We recognise, of course, that our views differ as to whether what the respondents propose for the future would or would not strictly comply with the law.  Given, however, that both of us express a strong preference for what may be called the secretary of state solution, we would expect the respondents to give careful consideration as to how they propose now to give effect to Article 31.

[33] The law of England was modified soon after the Adimi decision by s 31 of the Immigration and Asylum Act 1999 which provides

Defences based on Article 31(1) of the Refugee Convention.

31. - (1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he-

(a) presented himself to the authorities in the United Kingdom without delay;

(b) showed good cause for his illegal entry or presence; and

(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(3) …the offences to which this section applies are any offence, and any attempt to commit an offence, under-

(a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);

(b) section 24A of the 1971 Act (deception); or

(c) section 26(1)(d) of the 1971 Act (falsification of documents).

…

(5) A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.

(6) "Refugee" has the same meaning as it has for the purposes of the Refugee Convention.

(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

[34] The New Zealand Parliament has not responded specifically to the problems exposed in Adimi.  

THE JUDGMENT OF THE DISTRICT COURT

[35] The reasoning of Judge Hubble’s careful decision warrants reproduction.  After recording the facts the judgment continued

The Issue

[12] The issue in the present application is whether or not the laying of Counts 1 and 2 is an attempt to “impose a penalty” on the defendant “on account of his illegal entry or presence at a time when he is an applicant for refugee status within the meaning of Article 31”.

[13] It has been accepted in New Zealand that Article 31 is intended to protect not just refugees, but also claimants for refugee status.  That was recognised by the Court of Appeal in Attorney-General v E [2000] 3 NZLR 1958 at paragraph 24.  It has also had statutory recognition under the 1999 Immigration Amendment Act s.129A to Y.

The Law

[14] Counsel have been able to discover only one case that is directly concerned with Article 31, namely, R v Uxbridge Magistrates' Court, Ex p Adimi [2001] 1 QB 667 a decision of the Queen’s Bench sitting as a two member Court, Simon Brown LJ and Newman J...

[16] The individual cases in Uxbridge each dealt with the “refugees” using false documents in order to gain entry into the country.  In that regard it differs from the present case, where no prosecution arises as a result of a false entry on arrival documents but, rather the false entries are made on a subsequent application for the work permit and for the refugee status, which were made some months after entry.

[17] There is no doubt that Article 31 would apply to “genuine refugees whose quest for asylum reasonably involved them in breaching the law by travelling under falsified documents in order to gain entry to a country.”  In order to maintain immunity from prosecution however, such a person would need to “present himself to the authorities without delay”.  And, of course, eventually satisfy the authorities that he is being persecuted in his own country, and had good cause for the illegal entry.  An essential ingredient in any case, is that the “refugee” satisfy the proviso to Article 31, namely, “that they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.  As Simon Brown LJ observed at p.679E citing Grahl-Madsen’s work “The Status of Refugees in International Law, vol. II (1972):

“… exemption from penalties according to Article 31(1) may not be claimed if the refugee has chosen to stay in a country of refuge for a protracted period without presenting himself to the authorities.  If he eventually learns that he is about to be discovered and for that reason gives himself up, he cannot rely on the provisions of Article 31(1).”

[18] The learned Judge refers to a need for a “voluntary exonerating act” which would comprise him demonstrating that he is a genuine refugee, and for that reason was reasonably travelling on false papers.

[19] In my judgment, once a “genuine refugee” has managed to gain entry into a country whether by false documentation, or illegally landing without documentation, they ought then be obliged to obey all the domestic laws, and their failure to do so will not be an issue properly handled by the Immigration Department but, rather one for determination by the Crown Solicitor.

[20] In the Uxbridge case, as already mentioned, all the false documentation related to the entry documents and in that context as Simon Brown LJ observed at 684A:

“Decisions should depend more upon considerations arising out of the proper administration and control of immigration and asylum than upon the need to suppress and punish criminal activity generally.”

[21] Mr Davies’ argument in the present case is that the Crown Solicitor’s attempt in the present case to “impose penalties” are not on account of Mr Ghuman’s “illegal entry or presence” but on account of his presenting false declarations, or making false statements some time after gaining entry.  I accept Mr Davies’ submission that the decision which is under “de facto” review in the present case, is the decision to prosecute by the Crown Solicitor, and although there may be a limited power accepted by the Courts to review the Crown Solicitor’s decision (Kumar v Immigration Department [1978] 2 NZLR 553), there is no suggestion in the present case that the decision to prosecute has been made without regard to all relevant considerations.

[22] I do not think it is a proper inference in the present case that Mr Ghuman was not a genuine refugee merely because he left the country without pursuing his application.  Also, there could be little doubt that he did “present himself without delay” by making an oral application for refugee status at the airport on arrival.

[23] As such he is protected by Article 31 from being deported immediately, or for being prosecuted for the false passport he entered the country under but, I can see no basis under Article 31 for him being immune from prosecution for making subsequent false declarations.

[24] Mr Hooker urged on me the view that refugees frequently use a false name right through to the time when their appeals to a review authority are being heard.  He says that he has had experience when only then does a refugee “come clean” and declare his true identity.  He argued that there may be good reason for such a person to continue to use a false name in order to protect the identity of their families who may remain in the country of origin.

[25] I cannot see that there is substance in this argument as applied to any false declarations or any other breach of domestic law after entry to the country.  And I agree with Mr Davies that once the refugee has gained the safety of this country and the protection of Article 31, they are obliged to adhere to all of the domestic law of New Zealand, which includes not making false declarations as to their name, date of birth or identity.  Only then would it be open to the Immigration Department to make proper enquiries in order to determine whether the refugee is indeed genuine.  If non-disclosure of the name is essential to protect the families left behind, non-disclosure of the true name is within the prerogative of the Immigration Department.  If there are delays in making true disclosure (as in the present case) it is also a matter within the discretion of the Crown Solicitor in determining whether prosecution is appropriate.

[26] The bottom line, however, in my judgment is that although a refugee is protected from prosecution for using false documentation, or no documentation, to obtain entry to New Zealand, once safely within this country and subject to the protection of Article 31, they are obliged to adhere as strictly as other New Zealanders to the domestic law.

[27] The application for a stay is accordingly dismissed.

THE AFFIDAVITS

[36] In support of the present application the applicant has asserted that when refugees claim refugee status many use false identities for fear of persecution.  He claims that if his prosecution proceeds New Zealand’s standing in the international community will be affected.  He has also filed affidavits containing information not before the Judge from two legal practitioners who regularly represent refugee claimants.  Mr R P Chambers is a barrister who appears regularly before the Refugee Status Branch of the Immigration Service and the Refugee Status Appeals Authority and has represented more than 2,500 claimants from all parts of the world.  He deposes

…

3. THE refugee process is based on deciding whether a refugee or asylum seeker has a well founded fear of being persecuted in their country of origin.  Many refugees have to resort to subterfuge and false documentation to get past their own border controls to escape their persecutors who are, generally, their own State agencies.  Once through they carry on to their intended destination on that documentation.

4. I have read the statement of claim and the affidavit of the Applicant sworn in support of these proceedings.

5. I can confirm that in my experience a vast number of refugee claimants enter New Zealand and give incorrect details.  Those incorrect details often include incorrect details as to their identity.  They may do this for a number of reasons.  One of the principal reasons is their considerable fear that if they disclose their correct identity they will be returned to their home country.  They also fear that if they disclose their correct identity then their relatives in their home country will be persecuted.

6. IT is not unusual for myself as Counsel to learn of a client’s correct identity after many months of seeing the client and taking their instructions.  Some jealously protect their true identity because they fear for their own life if they are returned to their home country or they fear for the life of their relatives.

7. I believe that it is very much an accepted aspect that identity of refugee claimants is part and parcel of the making of claims by refugees.  To prosecute them for using false identity in the conduct of their refugee claim will have wide general implications for refugees.

8. I have read the Judgment of Judge Hubble issued on 28 July….  It is certainly my experience as I have deposed earlier in this affidavit that the use of false names is a reasonably regular occurrence for refugees.  A refugee will remain considerably concerned throughout the whole process about their safety and the safety of their relatives.  They are distrustful of the Immigration Service and the authorities in this country.  I believe that it would impact in a considerable manner on refugees’ ability to claim protection under the Convention if they were prosecuted for using incorrect names.

[37] Mr D J Ryken also appears regularly as counsel before the Refugee Status Branch and the Refugee Status Appeals Authority. He too has dealt with refugee claimants from around the world.  He deposes

…

2. Many refugees flee from persecution from authorities in their own country.  This could be the police, secret police, Islamic clerics or groups not authorised but tolerated by the home government.  Often claimants arrive in New Zealand knowing only that they can claim refugee status and not knowing what that means.  When they arrive they suddenly find out that the statement “I am a refugee” is only the beginning of a lengthy inquiry.

3. For claimants at the airport the genuine applicant will often still be afraid they might not get in.  Many fear that if they are deported without entry, any name they have used here, will be disclosed to the authorities in their own home country upon their arrival (in the company of an escort).  This would endanger themselves on arrival or their relatives immediately if the authorities in New Zealand communicate with their embassy or home government.

4. The asylum seeker typically is faced with an interview at the airport, and then later at the Refugee Status branch.  Many come from countries where government officials are routinely corrupt, and an ethically based governmental organisation such as the New Zealand Immigration Service is unknown.

5. They also soon find out from other refugee applicants in the community and sometimes consultants or inexperienced lawyers that their cases could be declined if they change their story.  They might be discouraged from “coming clean” by persons who are not familiar with the rigours of an inquisitorial appeal hearing.

6. Many refugees provide false information at the airport or soon after their arrival because they are concerned about the information that will accompany them upon their deportation or removal.  This often includes their identity.

7. Once the client receives good counsel they will often come clean.  They will discover that competent counsel will want contextual evidence (school records, etc etc) to prove the elements of their case.  Competent counsel will advise the client that providing false information will not be sustainable through cross-examination during a rigorous inquisitorial questioning session.  Further, many clients will only “come clean” once they have got to trust their counsel and accepted their reassurances that all information supplied to the Refugee Status Branch is confidential.  This process of building trust often takes time, because of the past abuse and experiences of the individual.

8. Refugee claimants have to be free to come clean.  If they are to be in fear of punishment for having lied at an earlier stage of the process then this will have an adverse affect and will discourage claimants from clearly stating who they are and the details of their case.

9. It is totally unrealistic in my opinion to expect claimants to trust the New Zealand authorities the moment after they have entered the country.  These are potentially people who are suffering from Post Traumatic Stress Disorder.  The authorities in their country may have murdered their relative or be currently hunting the client’s wife and children.  It may take a while for the asylum seeker to come to trust authorities in the new country.

10. Putting asylum seekers in jeopardy of prosecution for earlier falsehoods will discourage the truth in many cases.  We will potentially end up with more cases which go to a hearing based on false identities and false stories told at the earlier stages.  The falsity of these details will often be detected and the risk is that genuine refugees will not come clean, will proceed to an appeal hearing on false or partly false details, and the learned Members of the Refugee Status Appeals Authority will detect the falsity and genuine people in need of protection will be declined.

11. I am deeply concerned therefore at the down-stream effect of Judge Hubble’s decision which I have read.  The learned judge has based his decision on the premise that a duty is owed by the claimant to come clean after entry.  If there is such a duty it does not need to be immediate.  His Honour with respect may not have appreciated just how traumatised such clients are on their arrival and how traumatised they remain, sometimes for considerable amounts of time afterwards.  My experience is also that this process can be enhanced if the asylum seeker can develop a relationship with a lawyer.  There is a shortage however of competent counsel and access to lawyers specialising in refugee law is often difficult.  There are dozens, probably hundreds of decisions of the Refugee Status Appeals Authority (RSAA) where previously false evidence has been corrected by a refugee applicant before or at the hearing and where this has been accepted as credible.

12. It is true that the longer an applicant leaves “coming clean” the greater the risk he faces that his credibility will not be accepted.  For that reason a sometimes lengthy viva voce hearing is held at the RSAA by skilled Members who are aware of the pressure that genuine refugees face, and the tendency to be untruthful in the early stages.

13. In my experience, genuine refugees do not give truthful evidence (always), and it is hard for them as a result of their past experiences to come clean immediately until they have gained confidence in the process and authorities here.  To prosecute a former asylum seeker (who may have been a genuine asylum seeker at the time) for using a false name would interfere in my opinion with the willingness of many of my current asylum seekers to tell the truth.  It is difficult enough to encourage clients to tell the truth without this added factor.

[38] In an affidavit in opposition, Mr J D Boggs business adviser of Refugee Services at the New Zealand Immigration Service has deposed 

12 Before the substantive part of the interview commences, an introductory phase is undertaken during which the claimant is asked whether he or she wishes to add to, alter or delete any information provided to the Refugee Status Branch to date.  There is no indication at that stage that prosecution will be the inevitable result of changing the refugee claimant’s story, on the contrary, the Branch is simply seeking to ensure that it has correct information upon which to proceed, and to give the claimant every opportunity to provide a detailed account of their own true circumstances.  There is a warning given that false information provided during the interview process may result in the application being declined, or in prosecution.  However, this warning is framed with relevance to the interview about to commence.

13 From my perspective, the whole point of the various warnings is to ensure that accurate information is provided.  While Mr Ryken argues that the possibility of prosecution carries a disincentive to truthfulness, there is in my view no other method by which the system can be supported.  If prosecution and punishment for the provision of false information is not a possibility, the refugee status determination process will be seriously undermined.  Its integrity will be threatened by those whom will see refugee status as an arbitrary process which rewards the best liars.

14 Many refugee status claims are determined on the basis that the information remaining after the excision of false or unreliable testimony is not sufficient to establish a well-founded fear.  On occasion it is difficult to determine the extent of this false information.  While prosecution of refugee claimants, if sought, usually occurs only upon a determination that the person concerned is not a genuine refugee, my view is that the possibility of prosecution tends to reduce the amount of false or unreliable testimony in claims, and thus increase the prospects of success for genuine claimants.

15 I have no doubt that if all refugee claimants are made immune from prosecution for providing false information in the course of their claims the result will be that false or exaggerated claims will increase significantly.

[40] The second is the effect of s 129V

129V Effect of claimant leaving New Zealand

If a claimant leaves New Zealand, his or her claim or appeal is to be treated as withdrawn.

[41] Mr Johnstone for the Crown submits that any impediment to prosecution presented by the principles applied in Adimi disappeared when Mr Ghuman left New Zealand.  Mr Hooker for the applicant submits that the matter is to be tested at the time the alleged offence was committed.  If an impediment existed at that point it cannot be removed retrospectively.

[42] The third issue is where the line is to be drawn between offending that should not be prosecuted, so as to comply with art 31, and that which may.  A related point is who is responsible for determining whether proceedings should be brought and pursued.  The Crown submits the line is to be drawn where Judge Hubble set it; it is for the Crown as prosecuting authority to determine whether the proceedings already brought should continue, subject only to this Court’s review jurisdiction and its power to stay criminal proceedings.  The applicant submits that the Judge’s decision does not conform with the Convention as construed in Adimi; that where the breach of the law can be attributed to a bona fide desire to seek asylum the conduct should be covered by art 31; and that that the issues of fact and evaluation should be determined (if that is necessary) by the criminal court, either the District Court Judge or the jury.

The first issue: the factual basis for determining the application

[43] I do not accept the applicant’s bold submission that this Court is required on the present application to assume that the applicant was and is entitled to refugee status by virtue simply of his claim for it on 12 January 1991.  While an application for stay is ordinarily made to the criminal court, in this case the District Court, there can be no reason for this Court on judicial review to be less forthright in requiring a substantial factual basis before according relief than would the criminal court.  An application for stay of criminal proceedings will succeed only if the Court is satisfied that there is good reason to depart from the conventional principle that adjudication on the facts of criminal cases is a matter for the criminal adjudicator – in the present case a District Court jury.  A judge will intervene only where it is shown affirmatively that the interests of justice so require such intervention.

[44] I understand and respect the applicant’s election to refrain from advancing his factual defence prior to commencement of the criminal trial and perhaps until the Crown case has concluded but the careful researches of counsel and my own enquiries and those of my clerk have produced no authority supporting the applicant’s submission.  Even in a criminal case there is at the least a threshold burden on the defendant to point to some factual basis for advancing a particular defence, even though having done so it is normally something that the Crown must exclude beyond reasonable doubt.

[45] For that reason this application fails at the threshold.

[46] But having heard full argument on other aspects of the case I will touch briefly on each.

Confidentiality

[47] The further aspect of the factual argument is the confidentiality submission.  The refugee status application, made on 24 May 1991, preceded the coming into effect of s 129T and the Crown has argued that the section has no application.  I doubt that that is so since the proposed breach of confidence by the Crown’s disclosure of the applicant’s particulars to a jury will occur at trial in 2004, over four years after s 129T came into effect.  While in the absence of full argument I do not propose to determine the point, there is obvious force in the submission for the applicant that with effect from 1 October 1999 s 129T became operative in relation to the future disclosure of existing information concerning refugee status applicants. In any event, the section is relevant to the development of the common law: Burrows Statute Law in New Zealand (3rd ed) Wellington 2003 cites Lord Diplock’s reliance on modern statute law in Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 in order to extend the common law of passing off to protect a product name not derived from a particular locality nor associated with a particular plaintiff

Nevertheless the increasing recognition by Parliament of the need for more rigorous standards of commercial honesty is a factor which should not be overlooked by a Judge confronted by the choice whether or not to extend by analogy to circumstances in which it has not previously been applied a principle which has been applied in previous cases where the circumstances although different had some features in common with those of the case which he has to decide. Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed upon a parallel rather than a diverging course.

Burrows comments

This method of approach is so sensible that it is surprising it did not command support earlier. It does not require a revolution in statutory interpretation, for one is not really applying the statute to a situation outside its words; rather one is developing the common law in accordance with principles that apply in another part of the law. (372).

[48] The material part of s 129T is reproduced

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
…

(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.

[49] Also of relevance is s 35 of the Evidence Amendment Act (No. 2) 1980 which empowers a Court in its discretion to excuse a witness from answering a question or producing a document if to do so would constitute breach by a witness

…of a confidence that, having regard to the special relationship existing between him and the person from whom he obtained the information or document and to the matters specified in subsection (2) of this section, the witness should not be compelled to breach.

Subsection 2 provides

In deciding any application for the exercise of its discretion under subsection (1) of this section, the Court shall consider whether or not the public interest in having the evidence disclosed to the Court is outweighed, in the particular case, by the public interest in the preservation of confidences between persons in the relative positions of the confidant and the witness and the encourage of free communication between such persons, having regard to the following matters:

(a) The likely significance of the evidence to the resolution of the issues to be decided in the proceeding:

(b) The nature of the confidence and of the special relationship between the confidant and the witness:

(c) The likely effect of the disclosure on the confidant or any other person.

[50] It has not been shown by the applicant that there is risk that his safety or any other person would be in danger by the disclosure in this case.  While s 129T(3)(f) casts on the Crown the obligation to exclude serious possibility of such risks, the facts personal to the applicant are within his knowledge. The general principle is stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63, 65 and cited with approval by Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89, 98

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

[51] In the absence of any evidence to establish the applicant’s circumstances, the threshold burden upon him is not discharged.

The second issue: s 129V

[52] It being unnecessary for the determination of this case, I do not propose to adjudicate upon the competing submissions as to s 129V.  There is considerable force in the argument that a bona fide refugee status applicant who comes into New Zealand using false documents but who satisfies the conditions of art 31.1 should not be prosecuted even if by reason of having left New Zealand his claim to refugee status is deemed statutorily to have been withdrawn for the purposes of s 129V.  It may prove that that provision is directed at relieving the Crown from the obligations to which they would otherwise be subject in terms of their treatment of the refugee status applicant, including those of investigating the claim to recognition as a refugee and of non refoulement.

[53] In many if not most cases the question of an applicant’s status will not be immediately apparent and some enquiry will require to be undertaken.  If it has become clear that the applicant was one of the high percentage whose claims are manifestly unfounded there can be no reason for criminal proceedings to be withheld.  If however the claimant has established entitlement to refugee status there would be plain infringement of art 31 if a prosecution were nevertheless brought.  The departure from New Zealand may have been for many reasons.  It is trite that status as refugee antedates a person’s arrival in New Zealand; there is no sufficient reason to conclude that it is lost by arriving here and then departing.  In the case of a bona fide refugee s 129V simply relieves the New Zealand authorities from the need to deal further with the matter for which they no longer have responsibility.  If the refugee claim is in fact bona fide it would be open to be pursued in another state or, in the event of an effective return to New Zealand, in this country. 

[54] The circumstances of the departure could perhaps be material to the judgment of bona fides; but that is a distinct point.

[55] A third category is the refugee status claimant whose position has not been determined at the time of departure from New Zealand.  I am provisionally attracted to the view that the test is whether at the stage prosecution is contemplated, at the time of the alleged offence the potential defendant's claim to have been a bona fide refugee claimant has been refuted.  

The third issue: where is the line to be drawn and by whom?

[56] Mr Hooker submitted that the authority of the Courts to restrain abuse of criminal process affords jurisdiction for the Court to intervene and that on the present facts it should do so.  He argues that Judge Hubble’s bright line would defeat the policy of Article 31 by penalising bona fide refugees who can show good cause for their entry and presence.

[57] Mr Johnstone, wholly courteously, submitted that while there is much else in Part VIA that facilitates New Zealand’s compliance with the Convention, Parliament has not introduced it en bloc as part of New Zealand domestic law.  There is no implied repeal of s 229A of the Crimes Act in its application to refugee status claimants.   Accordingly the discretion whether to pursue the present indictment is that of the Crown Solicitor who is responsible to the Law Officers: see New Zealand Law Commission NZLCR 66 Criminal Prosecution (2000) 33, 35. 

[58] Judge Hubble’s clear and common-sense judgment draws the line at the stage the applicant is safely within New Zealand.  There is great force in that as a practical decision which, insofar as it suggests there is a legal right to be free of “penalty”, is consistent with the judgment of Newman J in Adimi and, insofar as it refers to what ought to be the response of the Executive, accords also with that of Simon Brown LJ.  It has the particular virtue of avoiding the incentive to post-entry offending against which Mr Boggs warns: the prospect of New Zealand becoming an Alsatia which encourages fraud by bogus refugee status claimants is unappealing.  And it adopts the same cut-off point as has been selected by the British Parliament.

[59] The judgment does not however grapple with the fact that the protection of art 1 extends not only to illegal entry but also to illegal presence of a refugee.  So it is argued for the applicant that the Adimi dictum should apply not only

a)    to “illegal entry or use of false documents” for entry purposes; but also

b)    to “illegal presence and use of false documents to secure refugee status” which would be an answer to count 1; and

c)    to “illegal presence and use of false documents to maintain such presence” which requires the money needed to provide food and lodging that only charity, social welfare, dishonesty or hard work can provide. 

The last, it is submitted, would be an answer to count 2; only by securing a work permit can acceptable means of sustenance be secured.

[60] The unchallenged affidavits of experienced counsel spell out what is obvious on a moment’s reflection. The conditions required to satisfy art 1A(2) of the Convention are stringent

…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country:…

[61] It follows that what can reasonably be expected of a bona fide refugee status claimant is likely to be far removed from the law’s standard of, say, the composed, tidy and well-organised paragon established by the common law of tort to measure liability for injury to an employee: see Wilsons & Clyde Coal Co Ltd v English [1938] AC 57.  They are well along the spectrum of which the “agony of the moment” cases form the opposite pole: see The Miraflores v The Abadesa [1967] 1 AC 826, 847.  To have been driven from one’s home and country by the conditions that satisfy art 1A(2) and then to experience the trauma of uncertainty, of exposure to the dealers in human misery who take advantage of refugees’ plight, of being reduced to deceit to secure false entry documents would affect any personality; and fragile refugees are as entitled to protection as those who are more robust.

[62] So the applicant argues that if the refugee claimant can show that the continued use of a false name and the uttering of false documents are compelled by the traumatic stress disorder described by Mr Ryken in the bona fide belief that they are required to maintain his “illegal presence” and he can further show “good cause for [his] illegal entry and presence”, to impose penalties for such conduct would entail breach of art 31.1.

[63] There is force in the applicant’s argument that to employ for the test of prosecution the bright line of safe entry as the point at which a refugee must be sufficiently composed and confident to trust public officials, when in terms of the Convention his qualification for that status derives from the reverse experience, could work injustice.

[64] A partial answer is provided by s 143(1)(c) of the Act.  That was amended to its present form as part of New Zealand’s statutory response to its obligations under the Refugee Convention.  Its plain language appears to draw the line at the stage of the supply to any immigration, visa or refugee status officer of any information known to be materially false or misleading.  If the legislation stopped there it would be well arguable that Parliament has adopted as policy that any deception of the relevant officer by a refugee is punishable by the criminal law; and that policy should be applied by analogy so as to exclude any argument that art 31.1 can be of help to the defence: Burrows Statute Law in New Zealand (3rd ed) Wellington 2003 cited at [46].  But the provision also contains the exculpatory element “without reasonable excuse”, which closely parallels the “good cause” stipulation of art 31.1.  The element raises a mixed question of fact and law.  It is arguable that to be a bona fide refugee, whose presentation of information known to be false is due to post-traumatic stress disorder, could constitute both reasonable excuse (s 142(1)(c)) and good cause (art 31.1).  But s 229A has no exculpatory element comparable to that of s 142(2)(c). 

[65] So does the absence of such element require liability even though that would infringe art 31.1?  Is such element to be inferred as a matter of law in accordance with the approach of Newman J, so as to give rise to legal rights in the refugee enforceable via s 20 of the Crimes Act?  Or is it a matter for the Executive, as Simon Brown LJ thought?  If so, should the Court leave the issue alone?  Or should it consider intervening and if so on what basis and to what extent?

[66] In Adimi the Court grappled with the true construction and application of the Convention although ultimately exercising discretion to grant greater relief that might be considered proper by the Executive, with its dual responsibility for the administration of criminal justice and for performance of the state’s obligations under the Convention.  The result was a sound one: wrongful convictions were quashed; Parliament elected to intervene.

[67] It is the duty of the judiciary to exercise restraint and sensitivity when determining the intersection between their jurisdiction and that of the Executive.  Immigration is par excellence a matter for the Executive alone so long as it conforms with the law.  But it has responsibility to determine and, in case of doubt, to declare the law.  Since Parliament by s 129X(2) requires immigration officers in carrying out their functions to have regard to the provisions of the Convention, Mr Pawson was required to do so in laying the informations.  To determine whether he did so it is necessary, in a case turning on the point, for the Court to construe the Convention.

[68] That is a task on which Simon Brown LJ embarked with trepidation.  But since, as he observed, there is no international tribunal able to rule authoritatively upon the point the task necessarily falls to this Court.  The hearing was adjourned from 4 November to 13 November to allow counsel to examine the international material.  Like Simon Brown LJ I begin with the dictum of Lord Lloyd of Berwick in Adan v Secretary of State for the Home Department [1999] 1 AC 293, 305

…we are here concerned with the meaning of an international Convention.  Inevitably the final text will have been the product of a long period of negotiation and compromise.  One cannot expect to find the same precision of language as one does in an Act of Parliament drafted by parliamentary counsel… It follows that one is more likely to arrive at the true construction of article IA(2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than concentrating exclusively on the language.  A broad approach is what is needed, rather than a narrow linguistic approach.  But having said that, the starting point must be the language itself.

[69] At p677 of Adimi Simon Brown LJ asked the question, what was the broad purpose sought to be achieved by art.31?  He answered

Self-evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law.  In the course of argument Newman J suggested the following formulation:  ‘Where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether here or elsewhere, that conduct should be covered by art 31.’  That seems to me helpful.

That art 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt.  Nor is it disputed that art 31’s protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely.  There are, however, within the text of the article certain expressed limitations upon its scope and these clearly require consideration.  To enjoy protection the refugee must (a) have come directly from the country of his persecution, (b) present himself to the authorities without delay, and (c) show good cause for his illegal entry or presence.

[70] Since the language of art 31.1 is

The Contracting Parties shall not impose penalties, on account of their illegal entry or presence, on refugees… provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

[71] Mr Johnstone submits that while nowadays it may be impossible for a bona fide refugee to secure entry without recourse to deceit, it cannot be necessary to employ deceit to maintain presence.  The requirement that refugees present themselves without delay to the authorities and show good cause for their illegal entry or presence is a pointer to the need to come clean at the time of entry, which is inconsistent with any right to engage in further deceit.  It is only the illegality of mere presence which may not be penalised.

[72] The point has not been considered in the materials considered by counsel or in the UNHCR’s recent major resource Refugee Protection in International Law (ed Feller, Türk and Nicholson) Cambridge 2003.  It would be unwise to attempt to determine its scope in a case where that is unnecessary for the decision.  I therefore do no more than mention the main arguments that were raised.

[73] One was that the present problem could be approached via the common law the defence of necessity which s20 of the Crimes Act preserves.  It might be thought difficult to conceive of a more suitable test of what is necessary than what is required by the Refugee Convention adopted by New Zealand and virtually every other civilised state. But the ambit of the defence has been confined for the good reason that it can been seen to acquiesce in crime: see NZLC R74 Some Criminal Defences with Particular Reference to Battered Defendants (2001) Chapter 9 and the note at [2003] NZLJ 285 on R v Hutchinson CA92/03, 7 July 2003. Their Lordships in Adimi referred to the law of necessity, but held that it is not appropriate to those circumstances. Simon Brown LJ stated

This defence applies only in cases of imminent peril of death or serious injury to the defendant and is manifestly narrower than that afforded by article 31.(680).

Newman J stated

the offender could not be prevented from raising the facts as a defence (duress or necessity) or in mitigation but the court will not be adjudicating upon article 31.(695).

It is likely that similar conclusions would be drawn in New Zealand.

[74] A more conventional approach would be that attempted in this case, of judicial review. It is perhaps fair to say that at the time of the 1999 amendment of the Immigration Act, which amended the offence provision s 142(c), the full significance of the collision between the criminal law and art 31 discerned in England by Adimi had not been appreciated.  In the public administration of the New Zealand Government in its broadest sense, seen for example in s 3(a) of the New Zealand Bill of Rights Act 1990 referring to

the legislative, Executive, and judicial and branches of the government of New Zealand

each of the three elements will conventionally respect the role and responsibility of the others and in some cases act in aid of them.  

[75] If the applicant could have established breach by Mr Pawson of obligations under s 129X(2) (para [6] above) it would follow that there would be a basis for judicial intervention to uphold the law enacted by Parliament.  Indeed Newman J in Adimi considered there were legal grounds for intervention even in the absence of such legislation.  That provision aside, I respectfully prefer the view of Simon Brown LJ: that such cases concern not legal right but challenge to the Executive discretion to determine how best New Zealand should perform its obligations at international law. Except to the extent they have become part of domestic law, international obligations are the province of the Executive rather than of the judiciary.   Even so, Adimi shows judicial preparedness to intervene to assist where there has been failure to understand and duly to apply the Convention. The Courts have in recent times been prepared to intervene to avoid injustice in the administration of the criminal law in even the highest spheres of Executive discretion: Thomas v Baptiste [2000] 2 AC 1; Lewis v Attorney-General of Jamaica [2001] 2 AC 50.   In a suitable case the Court might well conclude, as in Adimi, that it should in its judgment draw the fact of error to the attention of the Executive; in a sufficiently clear case it might go further, by issuing a formal declaration.  

[76] But in the first instance at least it must be for the Executive, in the persons of the immigration officers and of Crown Solicitors, to ensure compliance with the Convention and a successful challenge must establish that they have fallen short of their obligations. In the present case that has not been made out.

DECISION

[77] The application is accordingly dismissed.        

[78] Costs are reserved.

Solicitors for the applicant: Vallant Hooker & Partners (Auckland)
Solicitors for the respondent: Crown Solicitor (Auckland)