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S v Refugee Status Appeals Authority

High Court Auckland; [1998] 2 NZLR 301
2 & 3 October 1997; 10 November 1997
Smellie J

Exclusion - Article 1F(b) - standard of proof under Article 1F(b) - whether lower standard of proof than balance of probabilities

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

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

Exclusion - 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 plaintiff, 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 plaintiff, 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 plaintiff, 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 plaintiff 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 (RSAA) concluded that the plaintiff 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 plaintiff had committed a serious non-political crime outside New Zealand prior to his admission, he fell within the exclusion provisions of Article 1F(b).

Held:

1. The expression "serious reasons for considering" in Article 1F of the Refugee Convention establish a lower standard of proof than the balance of probabilities (see para [27]).

Refugee Appeal No. 1248/93 Re TP (31 July 1995) approved.

2. A crime either is or is not political when committed and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned. On the facts, 35 to 40 robberies failed completely to qualify as political crimes. If they had anything to do with the uprising it was very peripheral. Primarily, however, they were directed at innocent shopkeepers and carried out, in part, clearly for personal gain the evidence being quite inconclusive as to whether there was any true political motive involved. The fact that the gang declared its mission to be under the umbrella of the JVP was of minimal advantage to the plaintiff (see para [39]).

T v Secretary of State for the Home Department [1996] AC 742, 768 (HL) per Lord Mustill (dissenting) approved.

3. While an international convention cannot be read in the light of only one of the world's legal systems, in New Zealand terms these 35 or 40 aggrevated robberies would, taken collectively have led to a high penalty, nudging up to twelve years. It was unrealistic to suggest that the punishment under the Penal Code of Sri Lanka would not have been up to eight years of rigorous imprisonment. The RSAA had been justified in reaching the conclusion that both in New Zealand and Sri Lanka and the international community generally the conduct of the plaintiff would inevitably have been regarded as serious. It was not just that aggrevated robbery was a serious crime but rather more that this series of aggrevated robberies fell at the upper end of the range of seriousness for this particular crime (see paras [45] & [49]).

4. As a matter of both construction and policy, Article 1F(b) does not require a balancing exercise in which the seriousness of the crime is weighed against the gravity of the consequences of return to the country of origin (see paras [54] to [91]).

Gill v Canada (Minister of Employment and Immigration) [1995] 1 FC 508 (FC:CA) and Malouf v Canada (Minister of Employment and Immigration) [1995] 190 NR 230 (FC:CA) followed and applied.

Application for review dismissed

Other cases mentioned in Judgment

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA); Malouf v Canada (Minister of Citizenship and Immigration) (1994) 26 Imm LR (2nd) 20 (FC:TD); Refugee Appeal No. 70050/96 Re BS (20 February 1997); [1997] NZAR 433 (NZRSAA); Sham Lou v Canada (Minister of Citizenship and Immigration) (1995) 32 Imm LR (2nd) 135 (FC:TD).

Counsel

DJ Ryken for the plaintiff
MA Woolford for the second defendent

[Editorial note: While the decision of Smellie J was upheld by the Court of Appeal in S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA) it is the Court of Appeal judgment which is of the greatest assistance as it examines the issues in some depth. 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.]

SMELLIE J [1] The first defendant, the Refugee Status Appeals Authority (RSAA), the decision of which is the subject of this application for review, abides the decision of the Court. The RSAA hears appeals from the refugee status section of the New Zealand Immigration Service and, as a consequence, was required to determine whether the appellant, (S), is a refugee within the meaning of the United Nations 1951 Convention Relating to the Status of Refugees (the convention).

[2] The second defendant (the Minister) is charged with the implementation of the Immigration Act 1987 (the Act) and invariably acts upon the decisions of the first defendant and in this litigation, through counsel, presents the argument in support of the RSAA's decision.

[3] The plaintiff, who is legally aided, is a citizen of the Democratic Socialist Republic of Sri Lanka. The RSAA heard the plaintiff's appeal on 25 July and 1 August 1996 and by a decision dated 30 April 1997, declined to grant refugee status. The appeal and this application for review, centre largely on the issue of whether or not there are "serious reasons for considering" that the plaintiff "committed a serious non-political crime" outside New Zealand prior to his admission to this country as a refugee (art 1F(b) of the convention).

[4] The allegation in para 10 of the plaintiff's statement of claim is that the first defendant's decision that the plaintiff had committed "a serious non-political crime" was based on mistake of fact, was unfair, unreasonable, and failed to take into account relevant considerations, or took into account irrelevant considerations. In particular, it is alleged that in relation to the serious non-political crime found, the plaintiff acted under compulsion, was a party only, that the crime itself was not serious and was political, and in any event that a balancing exercise was required to take into account the underlying humanitarian purposes of the convention in respect of those for whom there is a real chance of persecution if refugee status is withheld.

[5] On the basis of the above allegations the plaintiff seeks an order setting aside the RSAA's decision and either a declaration that the plaintiff has refugee status or, alternatively, a direction that the first defendant reconsider.

Background facts

[6] The plaintiff was born and brought up in Colombo, the capital of Sri Lanka. As a young man in his early twenties the plaintiff became interested in and joined the Janatha Vimukthi Peramuna (JVP), which was a communist-based movement which had a military wing run from camps in the Sri Lankan jungles. Its broad aims were to destabilise, and then take over, the country. Part of the destabilisation programme was to impose curfews upon shopkeepers. The plaintiff, with others, was engaged in enforcing these curfews. The shopkeepers mostly complied because the alternative was either burning down of the shop or the killing of the shopkeeper.

[7] In 1988 there was an event described as the "JVP uprising" in Sri Lanka. The evidence is that the JVP came close to destabilising the then government which was at the time heavily committed in the north because of the ongoing guerilla war with the Tamil Tigers.

[8] During this period, in company with a group of other youths (variously said to be between four and ten in number) the plaintiff on one particular day joined in what can only be described as a rampage of aggravated robberies. The evidence of the event comes solely from the plaintiff himself and the RSAA was satisfied as to its accuracy and reliability. All the youths were affected by heroin on the day. In the course of the day they went to some 35 or 40 shopkeepers in the area of Colombo where the plaintiff lived, and demanded money from them. Effectively at each shop they took the day's takings. At the end of the day they had collected some 50,000 rupees, which in New Zealand dollar terms is something in the region of $2,500. The plaintiff's evidence was that when the gang descended on the shops they announced they were from the JVP and that was sufficient to subdue the shopkeepers, none of whom offered resistance. They warned their victims about calling the police and moved very rapidly through the area to keep ahead of any law enforcement agencies despatched to apprehend them. None of the gang was disguised.

[9] The plaintiff's evidence before the first defendant was that some of the money was used to buy more drugs and for personal expenses of those involved. 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.

[10] The uprising failed and the plaintiff realised that many of the shopkeepers would recognise him and that it was only a matter of time before he was in danger of being picked up by the police. Additionally, two school friends with whom he had joined the JVP, were found dead in a park in Colombo and he then became very frightened and confided in his parents.

[11] All the events I have recounted so far took place in 1988 when the plaintiff was aged about 25 years. His parents managed to find the means to get him out of Sri Lanka to Thailand where he remained for several months. He then travelled from Thailand to New Zealand, arriving on 8 March 1989. On 13 March an application for refugee status was lodged and it was declined on 22 May 1992. A second refugee status application based on different grounds was filed on 20 December 1994. This decision was declined also and it is that decision which was appealed to the RSAA which is the subject of this application for review.

[12] After the plaintiff left Sri Lanka and the government had crushed the JVP uprising, members of that organisation were hunted down and, in many instances, summarily executed. The RSAA accepted, from information available to it, that the crackdown on JVP members had resulted in extra-judicial deaths of the order of between 8,000 and 40,000.

[13] Letters from the plaintiff's parents were produced at the hearing. The first defendant accepted them as genuine and concluded that if the plaintiff were to return to Sri Lanka he would be taken into custody, very probably tortured, and quite possibly killed. That fate which awaits him if he returns to Sri Lanka is more likely to result from his former association with the JVP than from any legitimate investigation and prosecution of his past crimes.

The RSAA’s decision

[14] Having introduced the subject, established its jurisdiction to hear the appeal and rehearsed the factual basis of the plaintiff's first refugee application, the authority then addressed the factual basis of his second application. This involved a finding that the plaintiff's account of his involvement with the JVP and, in particular, the robbery of the 35 or 40 shops was credible; also, that the correspondence from his father and other printed material presented was authentic and indicative of what might happen to him upon his return.

[15] Against that factual background the first issue addressed was whether or not S fitted the description of a refugee. Article 1A(2) of the convention provides that a refugee is a person who:

... owing to well-founded fear of being persecuted for ... 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

[16] That first issue involved an objective consideration as to whether there was a real chance of persecution upon return and secondly, whether there was a convention reason for that persecution. That part of the authority's decision need not be discussed in detail. The conclusion reached was that the authority was:

"... unable to discount the possibility of a real chance of his being treated in an extra-judicial manner, tortured or otherwise persecuted at the hands of the Police. Affording the appellant, then, the benefit of the doubt, we answer issue one in the affirmative."

[17] I interpolate to say that the applicant's first claim for refugee status was on the basis that he could not return because, having left the JVP he would be assassinated by his former colleagues. The new ground for the second application of course was that the JVP, having been crushed, he would now be the target of police and military authorities.

[18] Having dealt with that first issue the authority then had to go on and consider the question of potential exclusion as provided in art 1F of the convention which provides as follows:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

[19] Following established precedents the authority held that the standard of proof required by the words "serious reasons for considering" is not a high one. They reached the conclusion that the plaintiff had committed a serious crime in relation to the robberies to which he admitted. Furthermore, that because some of the money had been used for drugs and personal expenses, and there was no direct evidence that any of it had reached the JVP, the offending non-political in nature. Additionally they were of the view that there was no evidence to suggest that the plaintiff had been compelled to carry out these crimes. They accordingly held that he was excluded from the status of a refugee by virtue of art IF(b).

[20] It is, of course, this part of the first defendant's decision which is the subject of this application for review.

The essential issues in the case

[21] There are, in my view, four essential issues in this case.

[22] The first is the correct standard of proof dictated by the words "serious reasons for considering".

[23] The second is the question of whether or not the 35 or 40 robberies to which the plaintiff confesses are properly described as "political" or alternatively "non-political" crimes.

[24] Thirdly, if the crimes are correctly categorised as non-political, are they properly described as "serious"?

[25] Fourthly, in a case such as this is the authority obliged to carry out a balancing exercise before reaching its decision? In other words is it obliged to weigh the seriousness of the crime on the one hand, and the gravity of the consequences of returning an appellant to his or her homeland before making a final decision?

[26] The first of the four issues above is non-contentious and I will deal with it here. The other three, however, require detailed consideration in separate sections.

[27] Initially, the RSAA took the view that the expression "serious reasons for considering" required evidence establishing probable cause. Subsequently, however, in Re T P [1996] BIR Digest C.5.1, it followed a line of Canadian decisions holding that the words must be taken to establish a lower standard of proof than the balance of probabilities. This lower standard was accepted by both counsel before me on this application for review.

Was the crime political or non-political?

[28] Mr Ryken, for the plaintiff, submitted that it was clearly political. He relied particularly upon the fact that robberies were committed during the JVP uprising, ostensibly in the name of the JVP and that the shopkeepers would not have acquiesced in the way they did had it not been for the reputation that the JVP had established for retribution if its demands were not met. On the other hand, on the facts, counsel was not able to put it any higher than to suggest that some of the money (it was quite impossible to say how much) might have been contributed to the attempt to overthrow the government.

[29] Whether the crime was political or non-political is relevant, of course, to both art IF(a) and (b). The issue has been the subject of detailed consideration in two Commonwealth appellate decisions. The first in Gil v Canada (Minister of Employment and Immigration) [1995] 1 FC 508, a decision of the Canadian Federal Court of Appeal, and the other in T v Secretary of State for the Home Department [1996] AC 742 in the House of Lords.

[30] In the Canadian case the decision of the Court was given by Hugessen JA. The judgment contains an exhaustive review of the common law rules as to extradition and building on them reaches conclusions as to the correct test for deciding whether a crime is political or non-political so far as art 1F(b) of the convention is concerned. Commencing the discussion on the law at p 516 the judgment reads:

"I have previously indicated that the characterization of crimes as 'political' is found in both extradition and refugee law. This has led some commentators to suggest that they are but two sides of the same coin and serve to complement one another: the fugitive who cannot be extradited may seek asylum; the refugee claimant who is excluded may be extradited. While there is much truth to this observation, and while, as will be seen, we must rely almost entirely on cases relating to extradition rather than to refugee claims, it is, I think, of some utility to observe at the outset that there are important differences between the two."

[31] Those differences are then adumbrated, followed by an exhaustive examination of the extradition decisions in the United Kingdom, United States and other countries, after which academic writing is considered, leading the Judge to a final analysis which he expressed in terms of the case before him. The headnote appears accurately to capture his conclusions. It adverts first to the complementary nature of the law of refugee status and extradition but notes at p 509:

"These differences would seem to point to the need for even greater caution in characterizing a crime as political for the purposes of applying Article 1F(b) than for the purpose of denying extradition."

[32] Summarising the case law on extradition and the so-called "incidents" test for determining whether or not an offence is political the headnote reads at p 509:

"The first requirement of the test is that the alleged crimes must be committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion. The 'political offense' exception is applicable only when a certain level of violence exists and when those resorting to violence are seeking to accomplish a particular objective such as to bring about political change or to combat violent political opposition. The second branch of the test is focused on the need for a nexus between the crime and the alleged political objective. The nature and purpose of the offense require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offense, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature."

[33] The appellant in that case, who was a member of an Iranian organisation loyal to the Shah and opposed to the government of the Ayatollah Khomeini, had detonated bombs in a crowded bazaar in order to damage the businesses of prominent merchants who supported the Khomeini regime:

"He did not meet, however, the second branch of the test. There was no objective rational connection between injuring the commercial interests of certain wealthy supporters of the regime and any realistic goal of forcing the regime itself to fall or to change its ways or its policies .... The crucial point was not merely that some of the victims were innocent bystanders but, much more importantly, that the attacks themselves were not carried out against armed adversaries and were bound to injure the innocent" (p 510).

[34] The House of Lords case concerned an Algerian who was a member of the Islamic Salvation front, a terrorist organisation which was trying to overthrow the government which remained in power despite being voted out in a democratic election. T v Home Secretary involved an attack on an airport where several innocent persons were injured and another attack on a military barracks.

[35] The majority, Lord Lloyd of Berwick (Lord Keith of Kinkel and Lord Browne-Wilkinson concurring) adopted the traditional approach. After an exhaustive review of the authorities, Lord Lloyd of Berwick arrived at the following definition at pp 786 - 787:

"A crime is a political crime for the purposes of 1F(b) of the Geneva Convention if, and only if (1) it is committed for a political purpose ... with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy; and (2) there is a sufficiently close and direct link between the crime and the alleged political purpose. In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target ... or a civilian target ... and ... whether it was likely to involve the indiscriminate killing or injuring of members of the public.”

[36] He held that Mr T satisfied the first requirement only and that otherwise:

"... the link between the crime and the political object ... was too remote" (p 787).

[37] The minority judgments of Lord Mustill and Lord Slynn of Hadley take a different approach. Lord Mustill thought the traditional approach was out of date and that bringing into consideration criteria such as remoteness, causation, atrociousness or proportionality made it far too subjective. Lord Slynn of Hadley agreed, the combined view of the minority appearing to be that nineteenth century concepts do not fit the conduct and methods of modern-day terrorists

[38] Referring to the proportionality arguments, Lord Mustill said at p 768 line H on to p 769 line B:

"In recent years new criteria have been proposed. The first is one of 'proportionality'. Whilst there is substantial support for this test, on closer examination it is seen that the decisions and commentaries use the term in more than one sense. The first, relied upon by the appellant, is that a crime cannot be political if the adverse consequences for the fugitive of using it as a basis for extradition or refoulement would be out of proportion to the gravity of the offence. I see no substance in this.... The gravity of the offence is relevant to the question whether it is 'serious' for the purposes of article 1F(b). But the crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned." (Emphasis added.)

[39] To the extent that the plaintiff in this case relied upon a proportionality argument in respect of the assessment of whether or not the crime was political, I consider that Lord Mustill's words emphasised above are a complete answer.

[40] In my judgment the 35 to 40 robberies fail completely to qualify as political crimes. If they had anything to do with the uprising it was very peripheral. Primarily, however, they were directed at innocent shopkeepers and carried out, in part, clearly for personal gain the evidence being quite inconclusive as to whether there was any true political motive involved. The fact that the gang declared its mission to be under the umbrella of the JVP is of minimal advantage to the plaintiff.

[41] In my view the RSAA was fully justified in deciding that the crimes were non-political.

Did the plaintiff commit a serious non-political crime?

[42] Addressing this issue Mr Woolford for the Minister first made this acknowledgment in para 25 of his synopsis:

"Serious crime

25. The issue of seriousness is raised in paragraphs 10(d) and 10(e) of the statement of claim. At the outset it is well to bear in mind the observation made in Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 FC 306, 315 (FC:CA) that an international convention cannot be read in the light of only one of the world's legal systems. While that observation was made in the context of the complicity issue in Article 1F(a) (war crimes, crimes against humanity, etc), the observation is true also in the context of Article 1F(b). That is, the definition of 'serious crime' must be informed by international jurisprudence rather than by New Zealand's domestic legislation.... That having been said, however, the New Zealand domestic legislation can be taken as a starting point in order to inform and compare the international jurisprudence."

[43] Clearly the crimes the plaintiff was involved in here were aggravated robbery pursuant to s 235(1)(b) of the Crimes Act 1961 carrying a maximum penalty of 14 years' imprisonment. If, as seems probable, there were threats to kill or do grievous bodily harm, then s 306 of the Crimes Act would also apply and it carries a term of imprisonment not exceeding seven years.

[44] The well-known New Zealand guideline authority of R v Moananui [1983] NZLR 537 reviewed the appropriate levels of sentencing for aggravated robbery. There are three categories. First are planned robberies carried out in premises such as banks where the safety of a considerable number of people is affected. There the penalties may be between six and eight years. That class shades into a second class of aggravated robberies of smaller premises, suburban post offices, service stations, dairies and there the range tends to be four to six years. In the third class which involves intrusion of dwelling houses, usually at night, the sentences are comparable with the second group because although there are fewer persons at risk and the potential proceeds are not so large there is, none the less, the serious element of violation of domestic privacy.

[45] Clearly then in New Zealand terms these 35 or 40 aggravated robberies taken in isolation fall into the second category. Taken collectively, however, it is my view that in such circumstances in New Zealand, either on a totality approach or by way of imposing cumulative sentences, this kind of lawless behaviour on a grand scale would inevitably have led to a high penalty. Certainly above eight years, perhaps nudging up to 12 years, depending largely on whether or not pleas of guilty were entered and at what stage of the proceedings.

[46] In New Zealand terms, although the first offence would not qualify as serious, by the time the halfway mark of 17 to 20 had been reached, the rating would have shifted to serious aggravated robbery.

[47] Item 11 of the casebook of the plaintiff contains the Penal Code of Sri Lanka. The relevant sections of the code for our purposes all fall under the heading of "OF ROBBERY" and in particular ss 379 and 380 which read as follows:

379. In all robbery there is either theft or extortion.

Theft is "robbery", if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.

Extortion is "robbery", if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

...

380. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine, and if the robbery be committed on the highway between sunset and sunrise the imprisonment may be extended to fourteen years.

[48] While there was no direct evidence before the authority as to how the Sri Lankan Courts would regard the conduct of the plaintiff and his associates on the day in question it seems inevitable to me that a number of aggravating factors would be taken into account. These would include the fact that the robberies took place at a time of civil unrest involving threats by the use of reference to the JVP and above all, the persistent extortion of 35 to 40 shopkeepers, all in the course of one day, all being relieved of their takings for that day. I think it unrealistic to suggest that the punishment would not have been up to eight years of rigorous imprisonment which is described in s 52 of the code as "Imprisonment ... with hard labour".

[49] Again my conclusion is that the authority was well justified in reaching the conclusion that both in New Zealand and Sri Lanka and the international community generally the conduct of the plaintiff on the day of what I have called elsewhere the "aggravated robbery rampage" would inevitably be regarded as serious. It is not just that aggravated robbery is a serious crime but rather more that this series of aggravated robberies falls at the upper end of the range of seriousness for this particular crime.

[50] Mr Ryken relied upon a series of mitigating factors. Among them, that his client was only a party, that he acted under compulsion, and was under the influence of heroin at the time. The plea of compulsion does not stand up on the facts. The plaintiff had been asked to go with his associates on other occasions and had been able to make excuses. He acknowledged that the heroin on this occasion made them all feel strong and invincible but he conceded he knew what they were doing. Furthermore, under our Crimes Act, s 24(1), the compulsion must amount to a threat of immediate death or grievous bodily harm from a person who is present when the offence is committed.

[51] The Sri Lankan criminal code is equally restrictive. Section 87 reads as follows:

87. Except murder and offences against the State punishable with death, nothing is an

offence which is done by a person who is compelled to do it by threats, which at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.

[52] In particular, the proviso would catch the plaintiff here because he had placed himself in the situation by agreeing to go along with his companions. So far as the accused only being a party is concerned, his evidence was that he did not deliver any of the threats or actually take possession of any of the money. But that, in the circumstances, in my view is of limited significance. He was there to encourage, back up, aid and abet, in every sense. Clearly it was the size of the gang and the reputation of the JVP which made it so easy to carry out the robberies one after another.

[53] Finally, so far as New Zealand law is concerned the fact that the offender was high on heroin would not be a mitigating factor. Given all the circumstances of this offending it is difficult to see how any different view would be taken by a Sri Lankan Court.

Is a balancing exercise called for?

[54] That such an exercise is required appears not to have been advanced as an argument before the authority. If in law it is required, the fact that it was not advanced would not mean that the authority's decision could not be reviewed because of error of law. I was informed from the Bar that hitherto this issue has not arisen in New Zealand. It was intimated that my judgment in this matter is awaited by the members of the authority with interest and subject, of course, to any appeal that may be taken, is likely to settle the approach adopted by the authority in future cases where the issue arises.

[55] I propose to discuss this topic under a series of six subheadings which I identify as follows:

(i) academic support for the balancing exercise;

(ii) UN Handbook support for the balancing exercise;

(iii) first instance support in other jurisdictions;

(iv) appellate decisions in other jurisdictions;

(v) the essence of the opposing views; and

(vi) the answer dictated by context, policy and precedent.

(i) Academic support

[56] The two leading modem authors are Hathaway and Goodwin-Gill. Hathaway's work, The Law of Refugee Status (1991, Butterworths, Canada) states at p 223:

"Third, the drafters recognized the seriousness of refusing to protect a person at risk of persecution, and therefore chose to limit the criminality exception to persons at risk of prosecution or punishment for a serious crime within the realm of extraditable offences."

[57] Hathaway also accepts the idea of a balancing exercise at p 224:

"Finally, and perhaps most important, the risk associated with exclusion from refugee status must not outweigh the harm that would be done by returning the claimant to face prosecution or punishment. Even though a claimant may be a serious criminal, it is possible that the heinous nature of the persecution anticipated in her state of origin counters the extradition-derived logic of her return."

[58] The author then seems to sum it up at p 225 when he says:

"The expediency of this recourse [exclusion] is balanced against its very narrow scope: it applies only to persons believed to have committed serious, pre-entry crimes which remain justiciable and the gravity of which outweighs that of the anticipated persecution."

[59] Hathaway also contrasts this with the situation where a refugee commits a crime in the host country and consideration is then given under art 33(2) of the convention to repatriation. In those circumstances the crime must be "particularly serious" and sustained by a conclusion that the offender "constitutes a danger to the community".

[60] A somewhat similar view is taken by Goodwin-Gill in The Refugee in International Law (2nd ed, 1996, Clarendon Press, Oxford). The author clarifies the distinction between art 1F(a) and (b) at p 97 as follows:

"Arguably also the crimes mentioned in article 1F(a) are necessarily extremely serious, to the extent that there is no room for any weighing of the severity of the potential persecution against the gravity of the conduct which amounts to a war crime, a crime against peace or a crime against humanity."

[61] Discussing art 1F(b) the author looks at the rationale behind the conclusion and says at p 104:

"Finally, a principled basis justifying the continuing exclusion of serious non-political criminals is offered by the need to ensure the integrity of the international system of protection of refugees. The commission of a serious non-political crime may be sufficient reason for exclusion because it is indicative of some future danger to the community of the State of refuge; or because the very nature and circumstances of the crime render it a basis for exclusion in itself, regardless of extradition, prosecution, punishment, or non-justiciability. In such cases, the principle of balancing crime against the consequences becomes redundant."

[62] Goodwin-Gill goes on to suggest it is for each state to determine whether the criminal character of the applicant for refugee status, in fact, outweighs his or her character as a bona fide refugee.

(ii) Handbook support

[63] 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.

[64] In T v Secretary of State for the Home Department, Lord Mustill at p 768 referred specifically to the status of the United Nations handbook:

"... and the [UNHCR] Handbook, which although without binding force in domestic or international law (Reg v Secretary of State for the Home Office Department, Ex parte Bugdaycay [1987] AC 514) is a useful recourse on doubtful questions...".

[65] The paragraphs of the handbook that deal with art IF(b) are paras 151 -159 inclusive. Paragraph 151 at p 36 states that the aim of the clause is to protect against the danger of admitting a refugee who has committed a serious crime, but adds:

"It also seeks to render due justice to a refugee who has committed a common crime (or crimes) of a less serious nature or has committed a political offence."

[66] Paragraph 152 discusses the difference between non-political and political. Paragraphs 153 to 154 discuss the location of the crime and the effect of a refugee committing a serious crime in the host country, while para 155 addresses the question of what constitutes a "serious" non-political crime. Paragraph 156 at p 37 is the most significant and reads as follows:

"156. In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has a well-founded fear of very severe persecution, eg persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee."

[67] In that paragraph the handbook clearly espouses a balancing exercise. Some commentators suggest that it is merely echoing comments made by academics representing various countries at the Conference of Plenipotentiaries in 1951 when the terms of the convention were hammered out.

(iii) First instance support

[68] Here the cases I refer to are exclusively Canadian. First I refer to Malouf v Canada (Minister of Citizenship and Immigration) (1994) 26 Imm LR (2d) 20. This is a decision of Gibson J sitting in the trial division of the Federal Court of Canada in Vancouver. Malouf was a citizen of Lebanon who went to the United States in 1978. In 1991 he pleaded guilty to offences equivalent to possession of cocaine for the purpose of trafficking. Before being sentenced for that offence he left the United States and went to Canada where he claimed refugee status on the basis of a fear of persecution if he was required to return to Lebanon as a result of his alleged prior participation in the Lebanese civil war.

[69] The Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board reached the conclusion that by reason of his serious offending in the United States the convention did not apply to him and, in particular, by reason of art 1F(b) he had "committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee". Accordingly he was held not to be covered by the convention. Judicial review was sought and the headnote of the case before Gibson J reads at p 21:

"The Refugee Division erred in failing to consider the inclusion of the applicant as a refugee as against Lebanon and in failing to balance the risk to the applicant that would flow from his return to Lebanon by reason of the exclusion clause against the seriousness of the non-political crimes here at issue. Having conducted that balancing, the Refugee Division would have been in a position to determine whether the serious non-political crimes were of such a nature as to warrant the application of the exclusion clause and the imposition on the applicant of the risk that would flow from his return to Lebanon. If, on the other hand, the outcome of a consideration of the applicant's refugee claim against Lebanon was such that he was determined not to be a Convention refugee, then no balancing would be required and no resort to the exclusion clause would have to be considered."

[70] I observe in passing that Malouf went on appeal and I will deal with the result of the appeal in the next section. The other first instance authority is the case of Shamlou v Canada (Minister of Citizenship and Immigration) (1995) 32 Imm LR (2d) 135. This is a decision of Teitelbaum J again sitting in the trial division of the Federal Court of Canada on this occasion at Toronto. The Judge conducts a careful survey of the facts, issues and law, and in the process rehearses without necessarily analysing most of the authorities, including the handbook in respect of art 1F(b) of the convention.

[71] At p 153 of the report, commencing a discussion of art 1F(b), the judgment reads:

"The applicant submits that the Board erred in its application of Article 1F(b) in its failure to balance the gravity of the crime the applicant was convicted of in the United States with the severity of the persecution to which the applicant may be subjected if returned to Iran. This suggests that the Board should have first considered the applicant's claim for refugee status against the crime which the applicant was alleged to have committed in the United States. If the severity of the potential persecution outweighs the crime committed, then the applicant should not be excluded under Article 1F(b).

There appears to be two schools of judicial thought with respect to this submission. One branch of jurisprudence holds that no 'balancing' of potential persecution against the crime need take place and the second (supported by academics writing in the area of refugee law) holds that a balancing should take place. The United Nations Handbook indicates that the exclusion clauses should be interpreted restrictively. Further, the Handbook states specifically that a Contracting State should 'balance' the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared.”

[72] Moving on to p 155 of the report the judgment reads at para 41:

“The line of case-law which holds that no weighing of inclusion and exclusion under Article 1F(b) appears to begin with the case of Ramirez in 1992. In Ramirez v Canada (Minister of Employment & Immigration) [1992] 2 FC 306 (CA), the Court of Appeal favoured a wide power of exclusion under Article 1F, despite the fact that several international authorities suggested a restrictive interpretation of the clause. In Gonzalez v Canada (Minister of Employment & Immigration) (1994) 24 Imm LR (2d) 229, the Court of Appeal held that it is not incumbent upon the Immigration and Refugee Board to address issues of inclusion where a claimant is described in an exclusion clause, and hence there is no obligation to balance the risk of persecution and his or her criminal character.”

[73] The case then goes on to refer to Gil v Canada (Minister of Employment and Immigration) (supra), as the most recent "no balancing" case. I shall be referring further to that decision on this point in the next section.

[74] Moving on to p 158, para 44, the judgment observes that Mr Justice Gibson's decision in Malouf was delivered without the benefit of seeing Hugessen JA's decision in Gil and the Judge ends by saying that he is in agreement with Gil that the balancing approach is not required. I gathered from counsel's submissions that there may have been a case or two in the United States but they were not referred to me. Canadian Courts seem to have made the running in this area. Not surprisingly, there was a degree of unevenness in decisions for a start while the academics and the handbook on one side and the Courts on the other, sought to work out the correct approach.

(iv) Appellate decisions

[75] Although the decision in Gil v Canada (Minister of Employment and Immigration) (supra) is not specifically concerned with an art IF(b) case, it none the less categorically ruled out the necessity for balancing with respect to all the subclauses in art 1F. At p 534:

"One final point. Another panel of this Court has already rejected the suggestion made by a number of authors that Article 1F(a) requires a kind of proportionality test which would weigh the persecution likely to be suffered by the refugee claimant against the gravity of his crime. Whether or not such a test may be appropriate for Article 1F(b) seems to me to be even more problematical. As I have already indicated, the claimant to whom the exclusion clause applies is ex hypothesi in danger of persecution; the crime which he has committed is by definition 'serious' and will therefore carry with it a heavy penalty which at a minimum will entail a lengthy term of imprisonment and may well include death. This country is apparently prepared to extradite criminals to face the death penalty and, at least for a crime of the nature of that which the appellant has admitted committing, I can see no reason why we should take any different attitude to a refugee claimant. It is not in the public interest that this country should become a safe haven for mass bombers.

Where it is appropriate to use a proportionality test under Article 1F(b) is in the weighing of the gravity of the crime as part of the process of determining if we should brand it as 'political'. A very serious crime, such as murder, may be accepted as political if the regime against which it is committed is repressive and offers no scope for freedom of expression and the peaceful change of government or government policy. Under such a regime the claimant might be found to have had no other option to bring about political change. On the other hand, if the regime is a liberal democracy with constitutional guarantees of free speech and expression (assuming that such a regime could ever produce a genuine refugee) it is very difficult to think of any crime, let alone a serious one, which we would consider to be an acceptable method of political action. To put the matter in concrete terms, the plotters against Hitler might have been able to claim refugee status; the assassin of John F Kennedy could never do so. These considerations, however, do not come into play in the present case for, although there is no doubt as to the extremely repressive nature of the regime in Iran, the appellant's claim fails for other reasons: notably, the lack of nexus between the crimes and any realistic political objective, and the fact that the means employed are unacceptable as a form of political protest against any regime, no matter how repressive, totalitarian or dictatorial."

[76] Turning then to Malouf v Canada (Minister of Citizenship and Immigration) (1995) 190 NR 230, on appeal where once again Hugessen JA gave the short judgment of the Federal Court of Appeal. The judgment records that the Judge at first instance had reserved three questions, the third of which read as follows:

"3. Where the Convention Refugee Determination Division is considering exclusion under Article 1F(b) of the Convention, is it required to consider the well-foundedness of the Convention refugee claimants' claim and then, if it is determined to be well-founded, to balance the seriousness of the non-political crime considered to have been committed by the claimant against the persecution feared by the claimant?"

[77] Upholding Gil the Court simply said:

"We are all of the view that the judge erred. The matter has been examined by this Court on other occasions. Paragraph (b) of Article 1F of the Convention should receive no different treatment than paragraphs (a) and (c) thereof: none of them requires the Board to balance the seriousness of the Applicant's conduct against the alleged fear of persecution. In Gil, 25 Imm LR (2nd) 209 we examined the issue with particular reference to paragraph 1F(b) and determined that a proportionality test was only appropriate for the purposes of determining whether or not a serious crime should be viewed as political. That question does not arise in this case. We are not persuaded that our decision in Gil was wrong."

[78] It can be seen, therefore, that in Canada the issue has been much litigated and at appellate level a firm line has been taken that the balancing exercise argued for by the plaintiff in this case is not required.

(v) The essence of the competing views

[79] The academics and those who authored the United Nations handbook appear to have been influenced by the debates that preceded the drawing up of the convention. Also perhaps by the law as to extradition which has similarities which, however, as earlier discussed, cannot be pushed too far. The humanitarian aspects of the convention appear to have influenced and shaped a liberal and enabling approach.

[80] The Canadian Courts, on the other hand, have decided on a clear literal interpretation. The perhaps unexpressed premise appears to be a recognition that an international convention, which must be applied in diverse jurisdictions, will not work if subjective considerations, which inevitably must vary from culture to culture, are permitted to intrude.

[81] Which of these two approaches should be followed in New Zealand?

(vi) Decision dictated by context, policy and precedent

[82] In Refugee Appeal No 70050/96 (BS) [1997] NZAR 433 the RSAA, in a decision handed down on 20 February of this year, discussing art 1F of the convention made, in my respectful view, a valid point when it said at pp 436 - 437:

"It must be observed that the Article is mandatory, it imposes no discretion in the decision-maker if the prescribed evidential threshold is attained: Refugee Appeal 913/92 (Re As) (15 May 1995). The wording of the Article, the product of extensive travaux preparatoires is pellucid - 'The provision of the Convention shall not apply...' ". (Emphasis added.)

[83] Also instructive on this point is the decision of the High Court of Australia in "Applicant A" v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331. The case concerned art 1A(2) of the convention where the definition of "refugee" is to be found. The seesaw progress of the case through five steps to a three to two majority in the High Court demonstrates the difficulty and divergence of views which such matters can spawn.

[84] From the headnote, p 331, lines 25 - 35:

"The appellants had come to Australia from China. They had one child. They argued that they feared sterilisation under the 'one child policy' in China if they returned.

[85] The respondent refused the application for refugee status. The Refugee Review Tribunal reversed this decision, holding that the appellants were refugees within the meaning of s 4(1) of the Act. The tribunal defined the 'particular social group' as 'those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised as such'. On appeal to the Federal Court, a single judge held that the tribunal had made no error of law in its decision. The Full Court of the Federal Court unanimously reversed this decision and affirmed the decision of the respondent."

[86] Special leave was granted to appeal to the High Court where the appeal was dismissed.

[87] In the judgment of Dawson J, who was one of the majority, commencing at p 345, line 40, the humanitarian aims of the convention are referred to as are the pragmatic considerations that the "grant of asylum may place unduly heavy burdens on certain countries" (p 346, line 6). Then at p 346 between lines 20 and 40 the judgment reads:

"There are other limitations on the humanitarian scope of the Convention and on the meaning of the term 'refugee'. However, what I have said is sufficient to illustrate the simple point that despite the reference in the Convention to the concern that persons enjoy the ‘widest possible exercise of ... fundamental rights and freedoms', there are limits on the extent to which the Convention attempts to translate that concern into practical reality. In that respect, the Convention, like many international and municipal instruments, does not necessarily pursue its primary purpose at all costs. The purpose of an instrument may instead be pursued in a limited way, reflecting the accommodation of differing viewpoints, the desire for limited achievement of objectives, or the constraints imposed by limited resources. No doubt many of those limits in the present context spring from the well-accepted fact that international refugee law was meant to serve as a 'substitute' for national protection where the latter was not provided due to discrimination against persons on grounds of their civil and political status. It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them." (Emphasis added.)

[88] These views were echoed in the judgment of Gummow J at p 374 where he said between lines 10 and 20:

"I have referred to those aspects of the background to the adoption of the Convention which show the danger in approaching it as designed, on a broad front, to advance humanitarian concerns. Rather, the text of the Convention manifested a compromise between various interests perceived by the Contracting States. As Dawson J points out in his reasons for judgment, the demands of language and context should not be departed from by invoking the humanitarian objects of the Convention, without an appreciation of the limits placed by the Convention upon achievement of such objectives."

[89] Although the French version of the convention is the official version, as a matter of construction I am unable to see that there is room to introduce the balancing exercise gloss given the plain words of the provision.

[90] As a matter of policy, as recognised by Hathaway, the pragmatic consideration of ensuring optimum observance of the terms of the convention worldwide, mitigates against the introduction of humanitarian considerations. Unavoidably, such considerations would receive varying interpretation and application from country to country and in the process weaken the effectiveness of the convention.

[91] Finally, just as it is undesirable that the common law should develop in divergent ways within common law jurisdictions, it must be so that a common approach to the application of international conventions is desirable if it can be achieved. I have before me the clear precedent of the development of this particular issue in the larger and vibrant sister jurisdiction of Canada. I think it clearly in the interests not only of New Zealand, but of the international community, that we in this country should follow that precedent.

Decision

[92] The plaintiff has failed to demonstrate any error of law on the part of the RSAA in this matter. Accordingly there is no basis upon which its decision can be reviewed. The plaintiff's action is dismissed.

[93] The plaintiff is legally aided and in all the circumstances this is not a case in which I would be prepared to consider awarding costs.

Application dismissed.

Solicitors for the applicant: Richard S Wood (Auckland)
Solicitors for the second defendant: Crown Solicitor (Auckland)