Refugee Protection in New Zealand

REFUGEE PROTECTION IN NEW ZEALAND: THE ROLE OF
NATIONAL SECURITY AND INTERNATIONAL HUMAN RIGHTS

A dissertation presented in partial fulfilment of the requirements
for the degree of Master of Laws, University of Canterbury

The consul banged the table and said,
"If you've got no passport you're officially dead":
But we are still alive, my dear, but we are still alive.

Say this city has ten million souls,
Some are living in mansions, some in holes:
Yet there's no place for us, my dear, there's no place for us.

The age of nations is past. It remains for us now, if we do not wish to perish, to set aside the ancient prejudices and build the earth.

On Wednesday 4^th December 2002, Mr Ahmed Zaoui, an Algerian academic and religious teacher, presented himself to the New Zealand authorities and claimed refugee status. A miscommunication effectively resulted in Mr Zaoui being perhaps the only person on record who has admitted to being a terrorist to customs staff, and he was subsequently detained on the grounds that his identity needed to be confirmed. This set in motion a labyrinthine sequence of events that continue to test the limits of New Zealand's legal response to persons who are alleged threats to national security, particularly in the context of immigration and refugee matters. Mr Zaoui, Immam, politician, suspected terrorist, father, refugee, is now the centre of a number of competing legal strands, each of an importance difficult to overstate, especially in the current "war on terror" climate:⁽¹⁾

· Mr Zaoui was initially declined refugee status on 30 January 2003 by a Refugee Status officer on the grounds that there were serious reasons to consider that he had committed serious terrorist or non-political crimes.⁽²⁾ The Refugee Status Appeals Authority (RSAA) allowed the appeal against this decision on 1 August 2003 in a comprehensive de novo judgment that recognised Mr Zaoui's legal status as a refugee. Further, the RSAA found that by a "demonstrable margin" there was no probative or reliable evidence to give rise to serious reasons to consider that Mr Zaoui had committed any act of terrorism, violence or other criminal conduct, or crimes against humanity and serious non-political crimes.⁽³⁾

· While some might argue that this decision is alone enough to settle matters of identity and risk, Mr Zaoui also engaged the attention of the New Zealand Security Intelligence Service (NZSIS). The Director of Security (Director) provided a "Security Risk Certificate" (the Certificate) against Mr Zaoui to the Minister of Immigration,⁽⁴⁾ the first ever issued. The Certificate uses classified information to allege that Mr Zaoui is a risk to the national security of New Zealand. The Minister made a preliminary decision to rely on the Certificate, and on the same day (27 March 2003), Mr Zaoui applied to the Inspector-General of Intelligence and Security (Inspector-General) for a review of the Director's decision. This has exposed a weakness in the legislative procedure: the process is currently stalled as counsel for the Crown and Mr Zaoui argues before the Supreme Court of New Zealand what form that review should take.

· Mr Zaoui travelled here as an asylum seeker after hearing about New Zealand's humanitarian and compassionate response to the plight of the Tampa refugees. Two years after arriving in New Zealand and eighteen months after being declared a refugee, he was still detained pending the outcome of the review of the Certificate. Nine months of that time was in solitary confinement. The remainder was in a remand prison, and it was only after a protracted legal process that the Supreme Court of New Zealand agreed to Mr Zaoui's conditional release.⁽⁵⁾

Indeed, Mr Zaoui holds a unique place in New Zealand, demonstrating that New Zealand is not immune to the current complexities of terrorism, national security, and personal liberty.⁽⁶⁾ This paper is concerned with Mr Zaoui's uniqueness as a legal test case in New Zealand, challenging the checks and balances required between the classified information of national security, and well-accepted rights of individuals such as liberty and justice. This brings together considerations of international law, particularly international refugee law, and its distillation in domestic law. The realm of international law must meet the reality of domestic interpretation. While this is now commonly known as the "Zaoui case", it should not be forgotten in the rhetoric of legal niceties that a person is at the centre of the discussion, and remains the focal point. Thus, the aim of this paper is not strictly to develop conceptions of international refugee law, but rather to distil pertinent criteria to examine critically its application to the New Zealand context, and in particular to Mr Zaoui.

It is a self evident, yet much overlooked fact that in an increasingly globalised world humanity has become entirely interdependent. A conflict in Vietnam results in boatloads of refugees in Australia; the break-up of the former Republic of Yugoslavia leads to an international military and humanitarian response; and an internal conflict in Algeria results over a decade later in a refugee seeking asylum in New Zealand. This reflects the reality that there are those in our world who are compelled to leave their homes due to perilous circumstances in their country of origin. While this problem stretches back millennia and is arguably part of the human condition, never before have people on the move met with such barriers prior to and upon reaching a border of safety.

The challenge of refugees and their protection is therefore a challenge that one cannot overlook or ignore; indeed, it is a "challenge of inevitability"⁽⁷⁾ that raises an immediate question: why do refugees matter? Firstly, it is a basic moral imperative to assist persons in need.⁽⁸⁾ It follows that refugees matter simply because they are there and are in need. However trite an observation this may seem, it falls to States to shoulder this reality and this is the second and more relevant (to this discussion) criterion. Refugees that engage a State's responsibilities matter in terms of how a State reacts to such engagement. In other words, a refugee compels a State to respond a certain way and that response in turn affect the status and well-being of the refugee. While the enhancement of human dignity might be the proper subject of statecraft,⁽⁹⁾ States do not generally act as moral agents, and rather look to preserve their own self-interests. As Helton notes, "people, not just refugees, matter differently in the ways that States calculate their interests."⁽¹⁰⁾ Competing factors will inform a State's response to a refugee arrival, resulting in policies that of late seem to protect the State rather than those seeking that protection. One must therefore ground any discussion of refugees in the role of State and State sovereignty: the State is still the core unit of analysis in international law.

Some might argue that if the "age of nations" has not yet passed, then it is passing. International law is replete with States purporting to cede sovereignty with respect to other States in a seeming willingness to shoulder responsibilities and delimit prerogative powers. International law and agreement is a fetter on sovereignty. While this is usually a voluntary submission of sovereignty, implying that a sovereign State may choose not to abide by an agreement, minimum standards such as human rights have emerged imposing restrictions on the exercise of sovereignty. The sovereign is now accountable to the international community under threat of "humanitarian intervention."^⁽¹¹⁾ However, this narrative of sovereignty must be tempered with observation, particularly when circumstances confront a sovereign State. Thus, sovereignty takes on a different colour when considering State responses to the right to seek asylum. It is a basic human right that one may flee a place of persecution and seek asylum elsewhere.^⁽¹²⁾ This right though is an affront to "politically sacrosanct notions of sovereignty"^⁽¹³⁾ and States that seek to control their borders: the right to seek asylum is therefore bereft of meaning where there is no obligation for a State to grant asylum.^⁽¹⁴⁾ >From the perspective of standing at a border, State sovereignty indeed appears hegemonic: territoriality is alive and well. The State preserves sovereign control of both its territory and those within its territory. Defensively, this allows State insulation from external events; affirmatively, sovereignty is the right of State to self-administration.^⁽¹⁵⁾

In this context, New Zealand must strive to balance two competing public interests, each of critical importance. First, the Crown is ordinarily responsible for maintaining national security and protecting the borders. This includes the right to determine who may cross those borders: a responsibility thrown into stark relief following the terrorist attacks on United States' soil in September 2001. Second, there is a concomitant responsibility to exercise this authority consistently with international obligations. This is representative of the competing interests facing a State in balancing concerns of sovereignty and obligation. While States retain the prerogative to determine who may enter their territory, systemic migration flows buffet States and the role of state is increasingly vulnerable to external pressures.^⁽¹⁶⁾ Indeed, there is nothing quite so challenging to the modern State as the "stranger at the gate" and their seeming capacity to threaten sovereignty.^⁽¹⁷⁾ Refugees are in many ways a personification of the instability of international relations;^⁽¹⁸⁾ therefore, a State's willingness and ability to deal with refugees provides comment on the implications of refugee flows on the role of state and the realities of balancing sovereignty with responsibility.

Current policies highlight the tensions between the asylum seeker and the sovereign responses of States. States are increasingly controlling the movement of refugees and obstructing access to their territory either directly through interdiction policies or indirectly through the application of restrictive visa policies and carrier sanctions.⁽¹⁹⁾ A dramatic example of a restrictive State response to a group of asylum seekers is Australia's interdiction of those rescued by the Tampa:⁽²⁰⁾

The draconian measure of forcing a ship from a country's territorial waters in order to avoid legal obligations exhibits, not deference to a transnational rights bearing regime, but a reassertion of the primacy of territoriality and the boundedness of the duty of protection.

The right of any State to grant asylum is a thus a consequence of territorial sovereignty. Conversely, the right of any State to deny asylum is also incidental of sovereignty; the right to seek asylum remains a territorially bounded claim.⁽²¹⁾

Currently, this appears to be an issue of control that many States are responding to with non-entrée policies, of which interdiction is the most striking example. This assertion of sovereignty is detrimental to genuine refugees, as the exclusiveness of such policies does not distinguish individual claims, obfuscating the differences between immigrants and those in need of protection. With the decline of Cold War politics and the increase of numbers flowing from developing countries, refugees are falling through the ideological spaces between where States will exercise their sovereignty and where they will assume juridical responsibility. Any assertions of the moral responsibilities of States must therefore be found and bound in law, in the international institutions and legal framework of international protection. This engages the intricacies of sovereignty and removes the discussion from the realm of idealism. Reality dictates that a State will at best conform only to those legal obligations it recognises and accepts. This is a fundamental premise of this paper: that the protection of refugees is not merely a matter of international concern, but of international law.⁽²²⁾ A particular advantage of adopting a legal perspective is that it enables a critique of State actions or inactions in terms of the legal frameworks that those States have agreed to abide by. Thus, commitments, rights, and obligations are delineated and mutually agreed, inviting legal accountability.

In this way, Mr Zaoui provides a focus for the discussion of refugee protection in New Zealand. His case is a challenge to not only New Zealand's sovereignty, but also this country's treasured human rights advocacy. The question remains: will New Zealand stand out in exception to this "tale of international apostasy"?⁽²³⁾ To answer this, the remainder of this paper is set out in three main parts: Part 3 examines the main international obligations that New Zealand has agreed to in this context; Part 4 considers the domestic implementation of these obligations; and Part 5 contains an analysis of the practical implications of realising these international obligations vis-à-vis Mr Zaoui.

New Zealand is party to numerous international agreements relevant to the protection of refugees that purport to inform State action when confronted with people seeking asylum. These set out the minimum standards of State practice; the international regime of refugee protection thus provides a point of reference for New Zealand to measure itself. The primary instrument of refugee law is the 1951 United Nations Convention Relating to the Status of Refugees.

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

1. they are outside the country of their nationality;

2. they are unable or unwilling to seek the protection of that country;

3. such inability or unwillingness is due to a well-founded fear of being persecuted; and

4. the persecution feared is for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The Refugee Convention itself contains significant hurdles for an asylum-seeker seeking protection as a refugee. Indeed, given the seemingly limitless manner and forms of persecution, the limitations imposed under the Refugee Convention are severe.⁽³¹⁾

Many States interpret the definition narrowly, excluding many asylum-seekers from the protection of the Refugee Convention.⁽³²⁾ Further, the Refugee Convention excludes putative refugees by the reasons found in Article 1F, such as crimes against humanity and serious non-political crimes.⁽³³⁾ While strictly delimiting the group of persons the Refugee Convention applies to in this way may appear an "unworthy exercise in legalism and semantics", it is central to the facilitation and justification of aid and protection.⁽³⁴⁾ The Refugee Convention is an essential compromise between those fleeing persecution and the more recent trend of restrictive immigration policies.⁽³⁵⁾

It is vital to note however, that refugee status is not dependent on State recognition.⁽³⁶⁾ The obvious implication from this is that obligations flow to the State from a person's status as a refugee, regardless of the mode of arrival:⁽³⁷⁾

People do not arrive illegally. That is a mistake. A person is entitled under … international law to make an application for refugee asylum in a country when they allege that they are escaping from persecution … That is simply the law.

Therefore, the rights granted to refugees must also initially be given to asylum seekers making a refugee claim.⁽³⁸⁾ Gibney reinforces this empirically, arguing compellingly that the majority of refugees are fleeing violence and it is clear who needs protection.⁽³⁹⁾ This is also intuitive: why would people risk the dangers of life as a refugee unless fleeing an even greater risk?

Patent compliance with the Refugee Convention follows if a State accepts and processes a refugee claim, protecting asylum seekers from penalties,⁽⁴⁰⁾ expulsion,⁽⁴¹⁾ and refoulement.⁽⁴²⁾ This gives expression to the 1948 United Nations Declaration of Human Rights, Articles 1 and 14, which respectively declare that all people are "born free and equal in dignity and rights" and have the "right to seek and enjoy in other countries asylum from persecution." In an ideal world, this paper might be congratulating New Zealand for living up to such standards. For that is the crux of the matter here. The rights to have equality, liberty, and enjoy asylum in other countries are declaratory only: they exist only in an ideal world. Indeed, the conferment of refugee status is not sufficient of itself to regularise the standing of a refugee in a receiving country. It falls to whether the Refugee Convention itself contains a right of asylum.

The basic problem facing those seeking the protection of other countries is that the Refugee Convention does not provide a specific right of asylum; that is, the right of a refugee to enter a country and enjoy the protection of the receiving State. Domestic courts instead interpret asylum as a function of sovereignty: asylum seekers do not have a right of asylum, but the State may grant asylum. Justice Gummow makes this point, declaring that:⁽⁴³⁾

The right of asylum is a right of States, not of the individual; no individual, including those seeking asylum, may assert a right to enter the territory of a State of which that individual is not a national.

Although the Executive Committee (EXCOM) of UNHCR policies stress that asylum is "among the most basic mechanisms for the protection of refugees",⁽⁴⁴⁾ a textual reading of the Refugee Convention is not so explicit. It remains for logic and reality to conclude that it is meaningless to have refugee status if there is no concomitant right to protection in another country: the Refugee Convention itself is rendered null without an implicit right to asylum.⁽⁴⁵⁾

Reliance on the Refugee Convention therefore takes on a circular argument absent a right of asylum. Article 31 of the Refugee Convention, which contemplates the right to seek a country of asylum enshrined in Article 14 of the 1948 Universal Declaration of Human Rights, is relevant to those refugees unlawfully present in State territory. Article 31 provides protection against penalties and restrictions of movement being imposed for unlawful entry to a country of refuge:

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.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

However, it also clearly recognises the situation that some refugees will be required to obtain admission in another country.⁽⁴⁶⁾ This implies that expulsion of a refugee does not constitute a penalty, and nor does it grant, directly, a right to be lawfully admitted to a State territory.⁽⁴⁷⁾ Article 32 of the Refugee Convention reinforces this, extending the protection from expulsion only to those refugees lawfully on a State's territory.⁽⁴⁸⁾ The Refugee Convention balances sovereignty with obligation by allowing sovereign discretion to States on whether to grant asylum to those unlawfully on their territory. However, in opposition to this discretion is the often unwillingness of other States to accept expelled refugees. Thus, if no other State will accept an expelled refugee, the asylum seeker has effectively gained a right to asylum in the country of refuge. The two options in Article 31 - regularisation of status or admission into another country - in these circumstances may be regarded as exclusive alternatives.⁽⁴⁹⁾ Grahl-Madsen notes that in this situation, a refugee's status in the relevant State would inevitably be regarded as lawful, and the protection of Article 32 crystallised.⁽⁵⁰⁾ However, this appears to push the purpose of Article 31 beyond its limits, turning it into a right of entry, thus completing the circle of argument between seeking and granting asylum. As Mathew and Grahl-Madsen both argue, "[r]ealities, rather than the mantra of 'no right of entry' must determine the position."⁽⁵¹⁾ The circularity of the right to asylum versus the sovereignty of receiving States is only resolved by the willingness of another country to take asylum seekers.⁽⁵²⁾ This leaves an ambiguity in the Refugee Convention that countries such as Australia can exploit, expelling asylum seekers to "safe" third countries, restricting the ambit of Article 31 to a right of presence pending solution. However, the Refugee Convention further circumscribes this uncertainty by the obligations found in Article 33 of the Refugee Convention.

The cornerstone of refugee protection is the principle of non-refoulement. This term derives from the French refouler, which means to drive back or repel.⁽⁵³⁾ It recognises the basic moral tenet that to return a person to a place of persecution is to become an accomplice to that mistreatment.⁽⁵⁴⁾ It is thus distinct from the more formal processes of extradition and deportation, where a lawfully present alien is required to leave a State.⁽⁵⁵⁾ Article 33, the prohibition of expulsion or return ('refoulement') in full states:

(1) No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinions.

(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which [they are], or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

While it seems that the Refugee Convention allows a receiving State to restrict entry to its territory, this must be done in a manner that does not refoule refugees to a place of persecution. This prohibition precludes the sending of a refugee to any country where there is a well-founded fear of persecution; it also has the effect of prohibiting the indirect return of a refugee to a country of persecution.⁽⁵⁶⁾ Again, in the absence of a right to asylum a State may decline a grant of asylum without offending non-refoulement. State parties have thus undertaken an obligation to either admit refugees or not return them to a place where they risk persecution.⁽⁵⁷⁾ This again engages the sovereignty versus the right to asylum debate.

Goodwin-Gill notes that the initial draft of Article 33 was without the Article 33(2) exception.⁽⁵⁸⁾ It was during the same drafting stage though that States resisted the inclusion of a right of asylum in the UDHR and in the Refugee Convention itself. Article 33(2) was later added in a concession to State sovereignty, precluding the notion of non-refoulement as an absolute right under the Refugee Convention and acknowledging potential justifications for derogation. A State can therefore justify expulsion of a refugee on certain limited grounds, as summarised by Lauterpacht and Bethlehem.⁽⁵⁹⁾ Firstly, any danger must be prospective in nature. Secondly, and equally apparent from the text, the danger must be to the country of refuge. Although a country may use its jurisdiction to control a person constituting a danger to other countries, this must be done without resort to refoulement. This recognises that the exception in Article 33(2) embodies a compromise between the fear of persecution and danger: "reasonable grounds" contemplates discretion for States to determine whether the risk to the refugee on refoulement is outweighed by the threat to the community.⁽⁶⁰⁾ Thirdly, "reasonable grounds" presupposes some objective criteria for States to apply when considering a potential threat to the community. Thus, States must not act arbitrarily or capriciously. However, this ambiguity leaves a considerable margin of appreciation for States to define the kinds of acts or omissions that will trigger a response of national security, and further what will amount to sufficient proof of danger. There must be a high threshold for the exception to operate though, given the potentially serious consequences for an individual facing refoulement. Fourthly, it is the danger posed by the individual in question that must be assessed, and therefore individual circumstances must be accounted for. Thus, assessment of the competing interests of State and refugee requires reference to the specific nature of risk an individual may face on refoulement.

The Refugee Convention makes it clear that generally, the return of refugees to the frontiers of risk was not to be permitted. The exception found in Article 33(2) has a high threshold, especially when considering a person with refugee status has already passed the barriers of Article 1F.⁽⁶¹⁾ Article 42 of the Refugee Convention further emphasises the fundamental importance of non-refoulement, including Article 33 in its list of provisions that States may not make reservations against when ratifying the Refugee Convention. The principle of non-refoulement in Article 33 (including the exception) is therefore an obligation without derogation under the Refugee Convention, further enshrining the primary importance of this provision in refugee protection.⁽⁶²⁾ As Lauterpacht and Bethlehem state, "[i]t embodies the humanitarian essence of the [Refugee] Convention."⁽⁶³⁾

While the corollary of non-refoulement is not specifically found, protection absent asylum is the minimum guarantee for refugees seeking protection under the Refugee Convention. This gives expression to the preambular object of the Refugee Convention, to "assure refugees the widest possible exercise of those fundamental rights and freedoms" enshrined in the 1948 Charter of the United Nations and Universal Declaration of Human Rights while recognising that "the grant of asylum may place unduly heavy burdens" on sovereignty.⁽⁶⁴⁾ The lack of legal impetus regarding asylum despite non-refoulement therefore means that the receiving State alone may determine the "material content of asylum and to whom it will or will not accord" such advantage.⁽⁶⁵⁾

3.2 International Human Rights

The genesis of refugee law was grounded in the humanitarian ideals of the 1948 UDHR and the nascent United Nations General Assembly (UNGA). This also marks the beginning of human rights more generally as legally recognised rights, both internationally and domestically: the Refugee Convention and human rights instruments have their origins in the UDHR. Current international human rights jurisprudence is therefore relevant to the protection of refugees, with respect to both the relevant provisions and the way those provisions can aid in the interpretation of the Refugee Convention itself. Like the Refugee Convention, the human rights regime "employs the language and institutions of law to limit the harm that the powerful inflict on the vulnerable."⁽⁶⁶⁾ Importantly, international instruments establish the minimum rights a State must uphold.

New Zealand ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) in 1978. A number of articles are of direct relevance to the protection of asylum seekers generally and indeed Mr Zaoui specifically. These include:

· Article 2: the protection of the ICCPR extends to all individuals within a State's territory and subject to its jurisdiction, regardless of nationality or statelessness, such as asylum seekers who find themselves under the jurisdiction of a State party;

· Article 7: the right not to be subjected to torture or cruel and unusual punishment;

· Article 10: the right to be treated with humanity and dignity if deprived of liberty; and

While Article 4(1) contemplates derogation from obligations found in the ICCPR in certain circumstances, such derogation must be temporary and of an exceptional nature such as a national emergency. This exception does not extend to inter alia Article 6 or Article 7 of the ICCPR: the right to life and protection from torture and cruel and unusual punishment are absolute rights under the ICCPR. This is important to note as these provisions become relevant in situations of expulsion of refugees, adding to the impetus of non-refoulement obligations owed to those facing risks of death and torture in other countries.⁽⁶⁷⁾ Implicit under the ICCPR is the protection from being returned, either directly or indirectly, to a place where there are substantial grounds for believing such rights may be infringed upon. In other words, the decision to return someone to a place where life or torture is threatened is tantamount to an infringement of the ICCPR by the country expelling the person.⁽⁶⁸⁾

3.2.2 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

In addition to the Refugee Convention and the ICCPR, the principle of non-refoulement is "powerfully expressed"⁽⁶⁹⁾ in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Article 3 of the CAT states:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Thus, under the CAT, a person who can demonstrate substantial likelihood of future torture may not be returned to the country where the torture is likely to occur. The protection from torture is broader than the protection offered by the Refugee Convention in two main ways. Unlike the Refugee Convention, there is no limiting category of persons that the CAT applies to - the CAT attempts to prevent all forms of torture, without regard to the status of the individual concerned, even (or especially) where a person falls outside the ambit of the refugee definition.⁽⁷⁰⁾ This approach, focusing on the individual reflects the humanitarian nature of the non-refoulement principle. Secondly, unlike the Article 33 obligation in the Refugee Convention, Article 3 of the CAT is expressed without exception. The prohibition of returning a person to a place of torture is in absolute terms, without derogation of any form. The CAT applies even to those a State might consider a security risk, even where there are competing national interests: there is no discretion available. This reasoning was applied in Chahal v United Kingdom, which held (on the equivalent Article 3 of the European Convention on Human Rights) that even where the applicant was a security risk, the likelihood of torture if returned mandated his continued residence in the United Kingdom.⁽⁷¹⁾ As the Chahal case demonstrates, the CAT provides a "trump card" to the courts that counters some of the restrictive tendencies of current electoral politics.⁽⁷²⁾

While the non-refoulement principle is expressed forcefully in the CAT, the protection afforded is somewhat constrained. By definition, the protection extends to only those in fear of future torture: fears of cruel, inhumane, or degrading treatment may not rise to the level of a CAT claim. Further, the rights provided are inferior to those found in the Refugee Convention.⁽⁷³⁾ Thus, while the CAT makes no distinctions between classes of persons, it does not regularise the standing of those protected by the CAT as the Refugee Convention does for refugees. The right to not be returned to a place of torture remains a right in isolation from other fundamental rights such as the right to employment⁽⁷⁴⁾ and freedom of movement.⁽⁷⁵⁾

However, the CAT is representative of a convergence of refugee law and human rights norms more generally. An example of this is the potential for the CAT to inform State decisions related to the expulsion of refugees and asylum seekers. Narrow interpretations under the Refugee Convention will often drive failed asylum seekers to the protection of human rights treaty bodies.⁽⁷⁶⁾ Gorlick notes that this would be less likely if States honoured the spirit of their obligations under the Refugee Convention,⁽⁷⁷⁾ thus providing protection in the liberal manner envisaged in the preambular text that:

expresses the hope that the Convention Relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.

According to Article 53 of the 1969 Vienna Convention on the Law of Treaties (Vienna Convention), a norm can be characterised as a peremptory norm of international law if the international community accepts and recognises that norm as one that permits no derogation. Although the obligations of non-refoulement flowing from the human rights instruments discussed above permit no derogation, the question remains whether or not States accept and recognise this as a peremptory norm beyond the scope of their contractual agreements.⁽⁷⁸⁾ In other words, is non-refoulement part of customary international law?

The above discussion shows that the principle of non-refoulement prescribes broadly that no refugee should be returned to a place of persecution or torture. As such, non-refoulement is expressed in numerous international, regional, and domestic agreements.⁽⁷⁹⁾ A sound argument can therefore be made that the principle of non-refoulement has attained the status of a customary international law.⁽⁸⁰⁾ As of the 15th February 2005, the Refugee Convention and its Protocol had 142 State Parties respectively;⁽⁸¹⁾ the ICCPR had 154 State Parties;⁽⁸²⁾ and the CAT had 139 State Parties.⁽⁸³⁾ This represents a significant majority of States that attests to the normative force of non-refoulement.⁽⁸⁴⁾ Numerous Conclusions of the Executive Committee (EXCOM) of the United Nations High Commissioner for Refugees (UNHCR) reinforce this, stating that such agreement is indicative of universal and regional acceptance of the principle.⁽⁸⁵⁾ While the EXCOM Conclusions do not have the force of law and therefore do not create binding obligations, they do contribute to the formulation of opinion juris - where States act out of a perceived legal obligation. Further, Goodwin-Gill notes that international organisations such as the United Nations General Assembly (UNGA) and the UNHCR consistently endorse the principle of non-refoulement by consensus.⁽⁸⁶⁾ That no State has taken the opportunity to oppose or object to such assertions is gives additional credence to the assertion that non-refoulement is part of customary international law. Indeed, Goodwin-Gill argues compellingly that this leads to "substantive, if not conclusive authority that the principle is binding on all States, independently of specific assent."⁽⁸⁷⁾

The practice of States must be uniform and consistent for the establishment of a customary rule.⁽⁸⁸⁾ Article 38(1)(b) of the 1945 Statute of the International Court of Justice describes customary international law as "international custom as evidence of a general practice accepted as law." To establish the existence of a customary international law, one must show a general practice, and show that this practice is accepted as law. A significant hurdle then in the assertion that non-refoulement has attained customary status is inconsistent State practice. Thus, the status of non-refoulement must be viewed in the context of what States actually do in practice. While the numbers of State Parties above demonstrate a near universal acceptance of the principle, there is little agreement on the implementation of non-refoulement; the parameters are not clearly defined.⁽⁸⁹⁾ Thus, although Goodwin-Gill points to State practice and finds a general compliance with non-refoulement, two recent examples indicate the contrary: the United States' interception of Haitians in international waters and the rejection of the Tampa refugees by Australia.

Observance of these cases invites a conclusion that both the US and Australia showed an indifference to any rule of non-refoulement. Both examples involved the interdiction of refugees on the sea - the Haitians returned to Haiti without claims of persecution being investigated, and the Tampa refugees transferred to a third country. Both countries, rather than providing the protection non-refoulement affords, appeared to send refugees on to further risk. One explanation for this is offered by the relevant domestic court decisions, indicating that it is not non-refoulement that is in doubt, but rather the scope and application of non-refoulement. The domestic courts' response to offshore asylum seekers in Australia and the US rest on the assumption the Refugee Convention has a territorial scope: international provisions apply only where a refugee is physically present in a State territory. A refugee cannot be refouled if they have not entered a State territory. This requires a narrow interpretation of non-refoulement and a certain suspension of logic. Mathew displays understandable incredulity, noting it makes a mockery of the words "return" and "in any manner whatsoever."⁽⁹⁰⁾ Australia illumines this analysis further, legislatively permitting the extra-territorial interception of asylum seekers and a denial of access to Australian protection.⁽⁹¹⁾ Included in the raft of legislative changes following the Tampa incident was the "excising" of territory for the purposes of immigration, including Christmas Island where the Tampa refugees were refused entry. The Tampa refugees are not considered in law to have been on Australian territory and therefore did not engage Australia's protection obligations. A legal fiction is created: an asylum seeker in certain areas of Australia does not engage domestic jurisdiction, irrespective of international obligations, essentially creating a "rights free" zone. Thus, in the eyes of the domestic courts there was no infringement of non-refoulement, not because there was no evidence of a return to or risk of persecution, but because the asylum seekers did not engage the protection responsibilities through a lack of jurisdiction.

While these decisions have been the subject of much academic scrutiny and criticism, the important point to take in the context of customary international law is that the US and Australia went to extraordinary lengths to avoid international obligations. These cases can therefore be seen as supporting non-refoulement as a customary rule in two ways:

1. The US and Australia demonstrated cogent awareness of their legal obligations of non-refoulement. Neither country argued that there was no infringement of non-refoulement, but that the asylum seekers had not engaged that obligation. The US argued successfully that there was no return as the Haitian asylum seekers had not entered US territory, and Australia was able to avoid the Tampa refugees through the implementation of domestic legislation. The ambivalence of the US and Australia remains, but Goodwin-Gill's assertion that no State claims any general right to return asylum seekers to persecution or torture holds in these examples.⁽⁹²⁾ During the interdiction of Haitian asylum seekers, the US delegate to a UNHCR meeting stated:⁽⁹³⁾

We underscore the fundamental importance of the principle of non-refoulement, which prohibits the expulsion and return of refugees to countries or territories where their lives or freedom would be threatened.

The recognition of non-refoulement obligations in these (negative) examples contribute to and do not detract from the opinio juris regarding non-refoulement. This point was emphasised in the Nicaragua case that showed that in some circumstances derogation could strengthen a rule:⁽⁹⁴⁾

If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule.

2. Examples like this provide opportunity for other States to respond and comment: an insight of the opinio juris of the international community. Australia, (which did not in fact return refugees to a place of persecution - a point less obvious in the case of the US), in particular attracted overwhelming international censure in response to its handling of the Tampa refugees. Crock comments that the "vehemence of the international response to the incident demonstrates the normative force of having an international regime based on articulated rights and obligations."⁽⁹⁵⁾

These examples show that the principle of non-refoulement is accepted as law, and that a core of State practice adheres to a minimum standard of upholding non-refoulement.⁽⁹⁶⁾ It is the reach of non-refoulement that is in doubt rather than the principle itself. States are left to interpret when their obligations are engaged and how to implement those obligations. This is representative of international law generally, which allows States significant latitude in interpretation as a concession to the realities of achieving consensus between sovereign powers.

Further caveats on the application of non-refoulement are the exceptions of national security and public order. In the context of refugees, Article 33(2) as noted above provides an exception to non-refoulement; it is not an absolute right under the Refugee Convention and therefore is itself a potential stumbling block in attaining customary status. Under Article 33(2), the possibility of derogation from non-refoulement is arguably inherent and Goodwin-Gill observes that this has long been considered as potential justification for derogation.⁽⁹⁷⁾ Even so, national security and public order have attained new emphasis recently in the current context of fear: terrorism. This potentially opens for discussion whether non-refoulement can be balanced with considerations of national security and on what grounds, in circumstances where refoulement might involve a return to torture. The question remains whether the exception found in the refugee context can be imported into the context of the torture, or vice versa.

Two main cases can be considered on this point. Firstly, the Canadian Supreme Court in Suresh v Canada considered whether the expulsion of a refugee is prohibited where there is a substantial risk of torture.⁽⁹⁸⁾ The Supreme Court adopted a stance purporting to balance the individual protection needs of Suresh with the legitimate security concerns of Canada. The Court considered that a balance was necessary only in circumstances where the individual in question was a serious threat to national security, envisaging a high level of danger to the security of Canada. In this way, the Court recognised the need to consider the individual circumstances of the refugee, opining that this balance would usually come down against expelling a person to face torture elsewhere and further acknowledging that the norm in international law rejected expulsion to torture.⁽⁹⁹⁾ However, the Court left open the small theoretical possibility that in an exceptional case expulsion might be justified, and applying this exception deferred to the relevant Minister's discretion on matters of national security. The Supreme Court in Canada at least is providing authority for the notion that the context of terrorism allows a balancing test even in the face of prospective torture.

This can be contrasted with the European Court of Human Rights, which considered a similar case of a failed refugee claim in Chahal v United Kingdom.⁽¹⁰⁰⁾ As mentioned above, the Court issued a clear directive that in no circumstances should any person be returned to a place of torture. Even in situations where an individual's conduct is a direct threat to that community "the Convention prohibits in absolute terms torture … and makes no provisions for exceptions and no derogation is permissible …"⁽¹⁰¹⁾ The Court went on to offer that this prohibition was equally absolute in cases of expulsion, and that no derogation was possible "even in the event of a public emergency threatening the life of the nation."⁽¹⁰²⁾ The protection afforded under Article 3 in this case was clearly wider than that offered by the terms of Articles 32 and 33 of the Refugee Convention. This approach follows that of the Committee Against Torture itself. The Committee has repeatedly stated that the prohibition of refoulement under Article 3 is absolute and imperative, declaring that "whenever substantial grounds exist for believing an individual would be in danger of … torture upon expulsion to another State, the State Party is under an obligation not to return the person concerned to that State."⁽¹⁰³⁾ Further, the Committee added that considerations of the individual's activities and crimes are not a material consideration under Article 3.

Following Chahal and the Committee itself, it is difficult to see a reason to advocate judicial restraint with respect to national security in this context. The Suresh decision seemed to follow the logic that since the cost of failure can be so high in matters of national security (citing the 9/11 attacks on US soil in 2001), decisions of Crown Ministers should be respected as they are elected to decide such sensitive matters. However, this appears to be an abdication of judicial responsibility as a check on Crown powers. Where the Crown is privy to vital information relating to national security, the Courts are empowered to test that information and protect the interests of individuals affected by the exercise of those powers.

3.3.3 The Problem of State Practice: "Safe" Third Countries

As seen from the Australian response to the Tampa refugees, State practice includes the removal of refugees to "safe" third countries. The question therefore arises: does the transfer of refugees to third countries show an indifference to legal obligations under the Refugee Convention? Key to this inquiry is whether the expulsion of refugees under the guise of safe third countries constitutes a breach of Article 33 of the Refugee Convention. While there is no obligation to grant asylum, the obligation to respect Article 33 remains, thus preventing the indirect return to a place of persecution, or chain-refoulement.⁽¹⁰⁴⁾ This calls into question the use of safe third countries and whether this sovereign solution is allowed for in light of non-refoulement obligations.

It is clear that the Refugee Convention does not preclude a State avoiding a grant of asylum to a refugee it owes an obligation of non-refoulement by "passing the buck" to a third country.^{⁽¹⁰⁵⁾} However, this necessarily requires some minimum standards in a third country to comply with the non-refoulement obligation, hence the term "safe" third countries. Legomsky, writing for the Department of International Protection of the UNHCR comments extensively on the standards a destination country should be seeking in a safe third country. He attempts to unite principle with pragmatism: the more serious a potential harm in a third country, the less chance of its occurrence one should take.⁽¹⁰⁶⁾ Some of the risks and standards contemplated include:⁽¹⁰⁷⁾

· the third country may not have an effective refugee determination procedure in place;

· the third country might practice long-term indiscriminate and arbitrary detention or other human rights abuses; and

· that there is some link between the asylum seeker and the third country.⁽¹⁰⁸⁾

Legomsky further sets out in some detail twelve premises that should underpin the return of refugees to third countries, from which four main points can be derived.⁽¹¹⁸⁾ Firstly, refugees have rights, sourced in both domestic and international law. These rights include the bundle of rights contained in the Refugee Convention to fair and humane treatment, human rights, and most importantly in this context, the right not to be returned to a place of persecution. Secondly, in contrast to the individual rights of refugees, States retain sovereign discretion: as discussed above, there is no obligation to grant asylum. Thirdly, however, States retain responsibility for those who cross their borders. The country in which a refugee application is lodged is generally responsible to ensure non-refoulement obligations are complied with, even if transferred to a third country. Fourthly, the refugee is entitled to effective protection, irrespective of whether the destination State or a safe third country provides that protection, contemplating potential international cooperation in the protection of refugees.

Determining the customary status of non-refoulement is important for several reasons in the context of this paper. Firstly, non-refoulement as a custom reduces the importance of any perceived breaches of the principle. In this way, prima facie breaches question the parameters of non-refoulement, not the principle itself. Secondly, domestic courts in New Zealand can apply customary law beyond any contractual obligations.⁽¹¹⁹⁾ Non-refoulement as a custom invites judicial scrutiny as to the scope and application of the principle beyond the purview of relevant State implementation. Further, if non-refoulement is accepted as a custom of international law, every treaty and treaty obligation, and every act by a State or international organisation that is in conflict with or violation of this norm, is void.⁽¹²⁰⁾

The above analysis leads to the conclusion that the minimum standards of non-refoulement have in fact achieved the status of customary international law. There is a general practice of States that is accepted as law, which can be summarised as follows:

· Refugees are protected from refoulement, with only the narrow exceptions of national security and public order having relevance. Thus, the norm from which no derogation is permitted in the context of refugees includes the Article 33(2) exception;

· Despite the Suresh decision, the weight of evidence suggests that all persons, whether refugee or otherwise, are protected from return to torture, without exception. No derogation is permitted under the ICCPR, CAT, or the ECHR.

Customary law then is essentially a reprise of the "ordinary meaning" of the words found in the treaties applied in good faith: a refugee may not generally be returned to persecution while no person may be returned to a place of torture. While the parameters of the principle are subject to competing interpretations, it is clear that non-refoulement permits no derogation and its status is secure. Ultimately though, whether non-refoulement has attained the status of customary international law is a question to be answered by the domestic courts who are asked to rule on this point.

The preoccupation with international law and human rights treaties so far has established the broad framework of the New Zealand's international obligations towards those refugees at risk of persecution or torture. While these considerations are important of themselves, the analysis necessarily strays into the realm of constitutional law and the proper relationship between international and domestic law: tersely, are unincorporated international treaties binding on domestic courts? This section reviews the degree of implementation of the international instruments discussed in Part 3 into New Zealand domestic law and their application to the context of this paper.

Traditionally, New Zealand as a common law jurisdiction is committed to an orthodox "dualist" conception of the relationship between international norms and domestic law. Thus, international treaties are only relevant to the extent enacted in legislation, recognising the "essential" constitutional distinction between (1) the formation, and, (2) the performance, of the obligations constituted by a treaty.⁽¹²¹⁾ Lord Atkin iterates this:⁽¹²²⁾

[T]here is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not … by virtue of the treaty alone, have the force of law.

According to this constitutional maxim, if the performance of a treaty entails the alteration of domestic law, legislative action is required to give the obligation domestic effect, thereby restricting the courts from giving direct effect to an unincorporated treaty obligation.⁽¹²³⁾ This dualism gives expression to the doctrines of separation of powers and parliamentary sovereignty, where the Executive is ordinarily responsible for treaty making while the power to enact laws remains with Parliament. The functional separation of powers underpins the democratic rationale and foundation of the New Zealand legal system. Accordingly, treaty obligations must be "transformed" through legislative process to be given lawful effect in New Zealand.⁽¹²⁴⁾

On the other hand, this approach is somewhat unsatisfying for courts, particularly in the context of human rights, for two reasons.⁽¹²⁵⁾ Firstly, the evolution of international human rights law has altered the emphasis of international law. Prior to the human rights framework, international law primarily concerned the contractual relationships between States and the obligations owed as a matter of sovereign agreement; an executive act regulating State actions vis-à-vis other States. This fits with the dualist approach and the importance of maintaining a separation of powers. In contrast, the subject matter of international human rights treaties lies conformably with one of the fundamental roles of the domestic courts: the regulation of State institutions vis-à-vis the rights of their citizens. Higgins observes that the body of international human rights law is:⁽¹²⁶⁾

strikingly different from the rest of international law, in that it stipulates that obligations are owed directly to individuals (and not to the national government of an individual); and it provides, increasingly, for individuals to have access to tribunals and fora for the effective guarantees of those obligations.

Geiringer agrees that this transformation of international law has been further accelerated through the proliferation of international institutions empowered to monitor State parties' compliance with their human rights obligations.⁽¹²⁷⁾ It is therefore disingenuous for a State to argue before a domestic court it is entitled to ignore obligations agreed to in the international arena that are examinable before an international body.⁽¹²⁸⁾ Secondly, the growth of human rights instruments and jurisprudence is representative of a convergence of international and domestic law. Thus, human rights in New Zealand, guarded by the New Zealand Bill of Rights Act 1991 (Bill of Rights) and the Human Rights Act 1993, may properly be considered in light of the relevant provisions in international human rights law. Domestic courts may therefore be seen at the forefront of human rights protection, both domestically and internationally. Elias echoed this, commenting in 2000 that "[t]he strict theory of dualism is … not supportable if it suggests that the Courts will not give practical effect to international covenants, particularly when they touch upon human rights, unless they are incorporated in domestic legislation."⁽¹²⁹⁾

Tavita v Minster of Immigration⁽¹³⁰⁾ provides an example of a recent approach of the New Zealand courts when applying international law domestically. The case concerned the appeal of an overstayer seeking the cancellation of a warrant of removal on humanitarian grounds. The Minister of Immigration, exercising a statutory discretion, declined the appeal. Relying on the ICCPR and the 1989 Convention on the Rights of the Child, the applicant argued that the Minister must have regard to the relevant provisions in these instruments when exercising the discretion. The essential argument for the Crown in response was that they were not obliged to take account of international instruments. While the Court of Appeal declined to make a ruling on this point, Cooke P expressed scepticism to the Crown argument, calling it "unattractive" and likening it to "window dressing": an argument the Court would have "hesitation" in accepting.⁽¹³¹⁾ This decision, at least in the immigration context, has been treated as binding authority for the proposition that human rights obligations are a mandatory relevant consideration in administrative decision-making.⁽¹³²⁾ Thus, the Refugee Status Branch must take consideration of the relevant provisions of the Refugee Convention when making a refugee status determination.⁽¹³³⁾

This is arguably a good result for a Crown seeking to avoid international obligations. Those international obligations become one of many factors a decision-maker is obliged to take into account, moving a decision beyond the purview of the courts. Thus, while the Crown has accepted Tavita as authority that international obligations are a mandatory consideration in decision-making, this is something less than a "presumption of consistency" with international obligations found in other cases.⁽¹³⁴⁾ Contrasting the approach in Tavita is New Zealand Air Line Pilots' Association Inc v Attorney-General.⁽¹³⁵⁾ In considering the application of international treaties in this case, the Court of Appeal evidenced a willingness to read relevant statutes consistently with relevant international obligations. The Court adopted a case-by-case basis, bearing in mind both the international context and the related national statute.⁽¹³⁶⁾ In applying this presumption, the Court took account of a number of factors, considering:

· the binding force of the treaty, both generally in international law and specifically in the New Zealand context;

· the treaty's relative importance: in the Pilots Association case, a relatively unimportant treaty was contrasted with the high importance of a "fundamental human rights treaty";

· the indeterminate character of the treaty, particularly one that competes with a clear legislative framework. This included recognition that a domestic system may run in parallel with international obligations: in other words, the Court considered whether the treaty would undermine the very nature and purpose of the statutory power.

In applying this analytical framework to the particular facts of the case, the Court read one section considered consistently with the relevant international obligation while finding it could not read the other section considered consistently with the relevant international obligations. The presumption of consistency was addressed on a case-by-case basis, considering the nature of the relevant international obligation and domestic statute in question.

Tavita and the Pilots Association cases demonstrate a finely nuanced difference in approach that can lead to dramatically different results. Gereinger provides a pertinent illustration of the potential differing results between the presumption of consistency in the Airline Pilots case and the mandatory relevant consideration case of Tavita:⁽¹³⁷⁾

Article 3 of the [CAT] prohibits States Parties to the Convention from returning a person to another State where there are substantial grounds for believing that she or he would be in danger of being subjected to torture. Assume that X, the Minister of Immigration, is charged with deciding whether Y is to be returned to a country where there are substantial grounds for believing that she or he will be tortured (let us say, Algeria). If Article 3 is a mandatory relevant consideration, X will be obliged to consider the existence of that obligation before reaching a decision. It is possible though, that X might decide there are other considerations (for example, national security concerns) that are of such importance that Y should nevertheless be returned to Algeria. That decision would not be reviewable, at least not for failure to consider a mandatory relevant consideration. If, however, X's authorising statute is to be read subject to a presumption of consistency with international obligations (and assuming the statutory language does not rebut such a rights-consistent reading) X cannot lawfully decide to return Y to Algeria, regardless of X's evaluation of the competing considerations.

This brief analysis of cases reveals an approach analogous to that used by Courts when considering section 4 and section 6 of the Bill of Rights.⁽¹³⁸⁾ This approach to statutory interpretation requires a rights-consistent reading of enactments where the text allows such interpretation, yet preserving the effect of clearly inconsistent wording. Similarly, the Courts have evidenced a willingness to adopt an analogous style when considering relevant international treaties, reading domestic law consistently with international law to the extent the text is able to bear it. The dualist tradition is thus upheld where consideration of international law will defeat the statutory purpose of the legislation. However, as discussed below, it seems that at least in the context of immigration matters, legislators and decision makers have demonstrated an acceptance of international obligations as a mandatory consideration.

Attention now narrows to the specific legislation relevant to this paper. The context of this paper requires a two-tiered analysis of legislation, vital to considering the position of Mr Zaoui in New Zealand law. This is largely a consideration of statutory process: the recognition of Mr Zaoui as a refugee with certain rights and obligations, along with the parallel security concerns raised from the Certificate.

The Immigration Amendment Act 1999 provides the first statutory incorporation of the Refugee Convention.⁽¹³⁹⁾ One of its stated purposes was to "create a statutory framework for determining refugee status under the Refugee Convention"; it thus scheduled the Refugee Convention and the amending protocol to the principal act, the Immigration Act 1987. However, there is no express provision incorporating these provisions into New Zealand domestic law. The Immigration Act does refer indirectly to the Refugee Convention though, requiring refugee status officers and the RSAA to act consistently with New Zealand's obligations under the Refugee Convention. Section 129D provides:

(1) 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.

The Immigration Act also specifically incorporates the non-refoulement obligations New Zealand has to refugees, in Section 129X:

129X. Prohibition on removal or deportation of refugee or refugee status claimant--

(1) No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.

(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.

Two immediate issues arise from a reading of these provisions. Firstly, it is unclear whether "acting consistently" with the Refugee Convention has the same meaning as "acting in accordance" with the Refugee Convention. Similarly, section 129X(2) seems to imply that the Refugee Convention is simply one consideration of many an officer acting under Part VI of the Act must regard. The implications of closely following Tavita and the mandatory consideration approach are readily apparent in the context of non-refoulement.

At this point, it is suffice to note that Mr Zaoui passed two hurdles after his arrival to New Zealand. At the first instance, a refugee status officer for the Refugee Status Branch (RSB) determined that Mr Zaoui was not a refugee "within the meaning of Article 1A of the Refugee Convention",⁽¹⁴⁰⁾ but was "excluded from the protection of the Convention because of the application … of Article 1F".⁽¹⁴¹⁾ Mr Zaoui then exercised his right of appeal to the RSAA,⁽¹⁴²⁾ which curiously does not have the same express terms of reference in determining refugee status as does the RSB: there is no express obligation to apply Article 1 of the Refugee Convention.⁽¹⁴³⁾ Haines comments on this point, noting that despite this and other systemic weaknesses, the RSAA has an internationally respected jurisprudence in refugee status determinations, and that "[g]enerally speaking, both the RSB and the RSAA directly apply at the domestic level an international Convention and draw on international jurisprudence."⁽¹⁴⁴⁾ Further, Haines notes that the RSAA relies extensively on international law, using the Vienna Convention for interpretation principles and international human rights conventions, customary international law, and State practice as its guiding provisions.⁽¹⁴⁵⁾ Mr Zaoui was in this way accorded a de novo hearing on appeal to the RSAA, which in carrying out its function recognised Mr Zaoui as a refugee.⁽¹⁴⁶⁾ The RSAA concluded:⁽¹⁴⁷⁾

[982] The appellant has a well-founded fear of being persecuted for a Convention reason if returned to Algeria.

[983] The Authority finds that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted.

While this is again a rather oblique approach under the legislation, the Refugee Convention does not stipulate procedures for determining refugee status. The provisions of the legislation may not be express, but the RSAA is able to read the provisions consistently with relevant international obligations, ensuring New Zealand meets its initial protection obligations.

As Mr Zaoui has been granted refugee status, he is entitled under the Immigration Act, section 129X not to be deported from New Zealand until his deportation is permitted in terms of the listed Articles in the Refugee Convention. This calls into question the process by which a refugee may be determined a danger to the security of New Zealand, a process governed by Part IVA of the Immigration Act 1987.

The Immigration Amendment Act 1999 introduced Part IVA into the Immigration Act 1987. This legislation was introduced on 20 August 1998 as the Immigration Amendment Bill 1998. It was presented under urgency to meet intelligence reports of the imminent arrival of boatloads of Chinese asylum seekers: as such, it sought to address perceived security threats to New Zealand and where necessary, quickly detain and remove or deport such persons from New Zealand.⁽¹⁴⁸⁾ This predictably encouraged vigorous debate in Parliament and amongst the submissions to the Select Committee, with a number of astute observations.

Both the Human Rights Commission and the Privacy Commissioner made submissions raising fundamental concerns about protecting the rights of individuals subject to the security risk certificate process.⁽¹⁴⁹⁾ The Human Rights Commission (Commission) was particularly concerned that the rights available to a person on whom a security risk certificate was served "appear to be so restricted that they raise significant human rights concerns."⁽¹⁵⁰⁾ Questioning the need for the proposed legislation at all, the Commission noted that natural justice dictates that a person has a right to know the case against them. Therefore, the subject of a security risk certificate should be entitled to some indication of the extent and nature of the evidence against them, "particularly where it originates from their home country."⁽¹⁵¹⁾ Similar to submissions made to the Court in Mr Zaoui's case recently, the Commission in 1998 argued that close regard should be given to New Zealand's international human rights obligations, including inter alia those under the Convention Against Torture.

The Privacy Commissioner displayed similar unease with the proposed legislation:⁽¹⁵²⁾

The proposal was of concern to me. Placing an individual in custody in reliance upon certain information, and using that same information in an expedited process to take significant and adverse decisions affecting that individual, while at the same time withholding that information from the individual and thereby denying him or her the opportunity to challenge or explain it, are fundamentally at variance with normal fair information practices.

Opposition Members of Parliament also vented some noteworthy criticisms. Matt Robson for the Alliance noted, "we will have to review this [legislation] if we are to be a society that actually believes in justice."⁽¹⁵³⁾ Mark Gosche for New Zealand Labour observed the implications of not achieving the correct balance in the process, stating, "[w]e cannot afford to make even one mistake, because that could put somebody's life at risk."⁽¹⁵⁴⁾ Perhaps the most famous observation though, is the oft-cited prescience of the then Opposition Minister of Immigration, Lianne Dalziel:⁽¹⁵⁵⁾

I am frightened … that there will be people who will have a security risk certificate issued against them and they will not know why. They will be fighting against windmills. They will be unable to defend themselves against specific charges because they will not be informed as to what those charges are.

Parliament nevertheless passed the Bill, introducing Part IVA, which is headed "Special Procedures in Cases Involving Security Concerns", and sets out the procedures for the issuing of a national security risk certificate. The objects section of Part IVA recognises the role of the NZSIS in possessing classified information relevant to the administration of security concerns.⁽¹⁵⁶⁾ It then purports to balance the protection of such classified information with the fairness that "requires some protection for the rights of any individual affected by it."⁽¹⁵⁷⁾ Section 114B then sets out an extensive definition of "classified information". The definition is broad, protecting the interests of not only the NZSIS but also any government or agency of any government that does not consent to the disclosure of any shared information, and further it also protects international relations.⁽¹⁵⁸⁾ The Director is empowered to issue a security risk certificate to the Minister where he or she holds classified security information relating to a specific individual; is satisfied that the information is credible and relevant; and where that individual meets the "relevant security criterion".⁽¹⁵⁹⁾ The relevant refugee deportation criteria are either or both where the Minister certifies that the continued presence in this country of a person named in the certificate constitutes a threat to national security,⁽¹⁶⁰⁾ or where there is reason to believe that person is associated with or responsible for acts of terrorism.⁽¹⁶¹⁾ In addition, the criteria must be taken together with the provisions of Article 33(2) of the Refugee Convention.⁽¹⁶²⁾

The Minister is then entitled to make a preliminary decision to rely on the Certificate, in which case its existence is evidence of sufficient grounds for the conclusion or matter certified, subject only to a review by the Inspector-General.⁽¹⁶³⁾ A number of consequences flow from the Minister's decision to rely on the Certificate. The person identified in the Certificate must be arrested without warrant and all administrative processes, except those of the RSAA, are suspended.⁽¹⁶⁴⁾ However, that person may seek a review by the Inspector-General, and under such a review is entitled to representation, access to personal information (other than the classified information), and to make written submissions to the Inspector-General about the matter.⁽¹⁶⁵⁾ Crucially, no action may be taken to remove or deport the person during this process.

The review of the Inspector-General proceeds under section 114I of the Immigration Act, which is to be conducted with "all reasonable speed and diligence."⁽¹⁶⁶⁾ The express function of the Inspector-General is to determine whether:

(a) The information that led to the making of the certificate included information that was properly regarded as classified information; and

(b) That information is credible, having regard to the source or sources of the information and its nature, and is relevant to any security criterion; and

(c) When a relevant security criterion is applied to the person in light of that information, the person in question is properly covered by that criterion -

In doing this, the Inspector-General may take into account any other relevant information not protected as "classified", and is further empowered by the relevant provisions of the Inspector-General of Intelligence and Security Act 1996 (IGIS Act). The relevant provisions of the IGIS Act are imported by section 114I(6), and include having regard to security requirements;⁽¹⁶⁷⁾ access to security records;⁽¹⁶⁸⁾ the power to hear evidence in private, summons persons and hear evidence on oath;⁽¹⁶⁹⁾ while maintaining secrecy.⁽¹⁷⁰⁾ Further, section 19 of the IGIS Act directs to the Inspector-General to allow the person in question to be heard and represented by counsel and have others testify to their record, reliability, and character.⁽¹⁷¹⁾ The review may include such evidence as the Inspector-General sees fit, whether admissible in a court of law or not,⁽¹⁷²⁾ and furthermore, shall be conducted in private.⁽¹⁷³⁾ A final point to note from the IGIS Act, is that the Inspector-General must ensure that "complaints relating to that intelligence and security agency are independently investigated."⁽¹⁷⁴⁾

Following the review, the Inspector-General must advise the person involved, the Minister, and the Department of Labour of the decision, accompanied by reasons except to the extent such reasons would be likely to prejudice the classified information.⁽¹⁷⁵⁾ If the result of the review is that the Certificate is not confirmed, the person is released from custody immediately and normal immigration procedures resume.⁽¹⁷⁶⁾ Where the Certificate is confirmed, the Minister must "make a final decision within [three] working days whether to rely on the confirmed certificate …" and in doing so may "seek information from other sources and may consider matters other than the contents of the certificate."⁽¹⁷⁷⁾ Importantly, the Minister is not obliged to give any reasons for her or his decision.⁽¹⁷⁸⁾ The final option for a person reaching this stage of proceedings is a right of appeal on an erroneous point of law within three days of the decision of the Inspector-General, with leave of the Court of Appeal.⁽¹⁷⁹⁾

The overall statutory intention of Part IVA is thus relatively clear. The Director issues a Certificate based on classified information and provides that to the Minister, who has a discretion whether to rely preliminarily on the Certificate. If the Minster does so, all other proceedings, bar the RSAA, are halted.⁽¹⁸⁰⁾ Assuming the person seeks a review within the statutory period, the person named in the Certificate is immune from deportation or removal procedures while the review is taking place. If the Inspector-General declines to confirm the Certificate, the person seeking the review is released and normal immigration procedures resume. Conversely, if the Inspector-General confirms the Certificate, the person may appeal to the Court of Appeal on a point of law within three days, while the Minister must make a final decision in the same period whether to rely on the Certificate. Again, if the Minister does not rely on the Certificate, the person is released to normal immigration processes; reliance on the Certificate by the Minister leads to formal removal or deportation procedures, subject to section 129X and the non-refoulement provisions.⁽¹⁸¹⁾ The process entire purports to address the balance of the State interests of national security and classified information, with the interests of the individual to a fair trial and justice.

The Director, when performing her or his functions under Part IVA, operates under a certain definition of "security", which was relied on in the issuing of the Certificate. The New Zealand Security Intelligence Act 1969 defines security in the interpretation section, section 2, which states:

(a) The protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed within New Zealand:

(b) The identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international well-being or economic well-being:

(c) The protection of New Zealand from activities within or relating to New Zealand that-- (i) Are influenced by any foreign organisation or any foreign person; and

(iii) Impact adversely on New Zealand's international well-being or economic well-being:

(d) the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act.

Again, this definition identifies concerns of New Zealand's "international well-being" or "economic well-being", which achieves prominence when considering the "danger" to the community required under Article 33(2). It is important to note that the Director relied on this definition of security in issuing the Certificate.

There are several inter-related strands of analysis in the Certificate process, with several common themes. In the interests of clarity, the final part of this paper seeks to examine each thread, highlighting the tension between individual human rights and national security concerns in a post 9/11 environment. Mr Zaoui's presence in New Zealand and his case is forcing New Zealand's political and legal systems to confront and address the assertion of national security in terms of the individual rights of Mr Zaoui.

It is important to note that the application of human rights in Mr Zaoui's case is not controversial. The Crown accepts that the Minister is indeed obliged to take into account New Zealand's international obligations in considering whether to rely on the Certificate. The main point of contention is the role of the Inspector-General in conducting the review and the relevance of international human rights considerations to that review. The question is at what stage or stages, and by whom, are Mr Zaoui's human rights accounted. The rights at issue are vital to the interests of Mr Zaoui: the protection from refoulement is the paramount principle of the Refugee Convention and critical to Mr Zaoui's protection from torture. A brief comparison of the roles of Inspector-General and Minister adds impetus to the argument that the Inspector-General reviews the Certificate consistently with international obligations.

The role of the Inspector-General is central to any decision relating to the validity of the Certificate, and plays a pivotal part in the outcome of Mr Zaoui's case. While the Supreme Court of New Zealand is currently considering the role of the Inspector-General in reviewing the Certificate against Mr Zaoui, some preliminary points can be made. Importantly, the Inspector-General has the experience and qualifications of a High Court judge. Regarding this point, the Inspector-General is required to conduct a quasi-judicial hearing, take into account any relevant information that does not of itself meet the definition of classified, and is obliged to observe natural justice by giving a reasoned decision. The importance of this adjudicative role is recognised in the objects provision of Part IVA, section 114A. Further, the Inspector-General is privy to vital sources of classified information, and is generally empowered to review the Certificate with some efficacy. The Inspector-General's role as a semi-judicial figure, the lack of time constraints, and the fact that the Inspector-General is the only person able to review all the information, make a strong case for Mr Zaoui to have his human rights considered at the review of the Certificate.

In contrast, the Minister's decision whether to rely on the Certificate is subject to severe restraints. The Minister is obliged to give a decision within three days of the Inspector-General's review of the Certificate (if indeed the review confirms the Certificate) and is not obliged to give reasons for any decision. The Minister is not able to access the classified information or the evidence or submissions provided by Mr Zaoui to the Inspector-General. Indeed, the Minister is not obliged to receive further evidence and representations on behalf of Mr Zaoui. It is difficult to see how the Minister will be able to balance Mr Zaoui's human rights with a confirmed Certificate that is based on classified information. The Minister's role appears to be confined to a political decision that is necessarily non-transparent.

The analysis of the Certificate process and its review below therefore focuses on the role of the Inspector-General. However, considerations of Mr Zaoui's human rights are equally applicable to the Minister in that they are legally enforceable.

The Certificate is based on classified information, protected by Part IVA. Therefore, the first and most obvious objection to the Certificate process is the broad terms of reference afforded to "classified". Indeed, the low threshold that the NZSIS uses to tag something as "classified security information" confounds Mr Zaoui's case. In the case of Mr Zaoui, the Director confirmed in the Certificate that, pursuant to sections 114C(4) and (6):⁽¹⁸²⁾

(a) [Mr Zaoui's] continued presence in New Zealand constitutes a threat to national security in terms of section 72 of the Act; and

(b) There are reasonable grounds for regarding [Mr Zaoui] as a danger to the security of New Zealand in terms of Article 33.2 of the Refugee Convention (as defined in section 2 of the Act.

Significantly, the Certificate does not rely on any of the other security criteria listed in section 114C. Glaring in its omission, the Certificate did not assert that Mr Zaoui was a threat in terms of section 73(1) of the Act: that is, the Certificate made no assertions as to Mr Zaoui's danger as a terrorist or person with terrorist associations. Nor was he counted as a danger to the community on account of his previous convictions in France and Belgium. On perusal of the RSAA decision, neither of these omissions should be surprising, as the RSAA comprehensively dismissed these issues. Section 72 of the Act on the other hand is no more precise than the Minister asserting that the person named in the Certificate constitutes a threat to national security.

Seeking further information regarding the information used in issuing the Certificate, Mr Zaoui and counsel sought an unclassified summary of the allegations against Mr Zaoui and the classified information used, as far as possible without compromising the classified nature of that information. The Inspector-General, in an interlocutory decision of October 6 2003, declined to provide this, opining that the review of the Certificate was an "area where the Bill of Rights and ordinary rights of fairness do not apply."⁽¹⁸³⁾ Following court proceedings, the High Court ruled against the Crown contention that Mr Zaoui was not entitled to see a summary of the reasoning behind the Certificate.⁽¹⁸⁴⁾ The Director's summary of allegations subsequently provided to Mr Zaoui adequately demonstrates both the point of vagueness and the example, containing mostly information already dealt with comprehensively by the RSAA decision and some surprisingly innocuous claims.⁽¹⁸⁵⁾

The first point of the Director's reasoning is the fact that Mr Zaoui entered New Zealand after attempting to destroy his false passport.⁽¹⁸⁶⁾ This appears to be an exercise of publicity, as it is well accepted under both the Refugee Convention and New Zealand's application of the Convention that refugees cannot be penalised for using false papers. The second allegation raises concerns that a home video filmed by Ahmed Zaoui "looked suspiciously like a 'casing' video".⁽¹⁸⁷⁾ The video is now freely available on the internet,⁽¹⁸⁸⁾ and the New Zealand Herald published a scathing response:⁽¹⁸⁹⁾

The supposed evidence is jaw-dropping in its absurdity: not only does the man photograph himself in the video and repeatedly introduces himself by name to other tourists and locals during his travels, but the ostensible targets of terrorist action that he is "casing" are filmed for less then 15 second each. No police or other security forces are shown, nor are primary escape routes, secondary areas or routes of access and egress, or likely locations for bomb-planting sniping, or massed fire or grenade attacks. For the most part the video shows average people in post-communist Asian States (Laos and Vietnam) occupied in their daily routines as Zaoui details the wonders of local cuisine and landscapes.

A final example of the vagueness of the Certificate is perhaps best seen in the dramatic assertion in the summary: "Mr Zaoui is a foreign person."⁽¹⁹⁰⁾ These examples question the use of classified information in this context, particularly the providing legislation that allows a high level of ambiguity resulting in a person potentially "fighting windmills"

The Inspector-General's interlocutory decision of October 6 2003 also set out the proposed substantive procedure for the review of the Certificate in relation to Mr Zaoui. The Inspector-General held that in considering the propriety of the Certificate, it was not necessary to have regard to Mr Zaoui's human rights or the adverse consequences that deportation would have for Mr Zaoui. In the view of the Inspector-General, general issues of international human rights jurisprudence were "beside the point." Counsel for Mr Zaoui challenged this finding by way of judicial review, succeeding in the High Court,⁽¹⁹¹⁾ the Court of Appeal,⁽¹⁹²⁾ and currently the Crown is continuing to oppose Mr Zaoui on this point in the Supreme Court. The extent of the review function is yet to be finally determined: Mr Zaoui contends that the review requires the Inspector-General to weigh Mr Zaoui's human rights, especially the right not to be exposed to death and torture, against the security interests of New Zealand; the Crown argues that the Inspector-General is limited to issues of security when determining whether the Certificate was properly made. The role of the Inspector-General discussed above at paragraph 5.1 indicates the compatibility of that role with human rights; the focus here is the need to balance those fundamental human rights with classified information and national security.

The basic premise of the argument that the Inspector-General take account of Mr Zaoui's human rights in deciding whether the Certificate was properly made is the implications of the Certificate being upheld. In other words, the consequences that Mr Zaoui faces if the Certificate is confirmed are such that these consequences must have a role in the decision making process. This view is not merely one of logic; it finds support in the legislation itself. Part IVA purports to balance the protection of classified information with the requirement that "fairness requires some protection for the rights of any individual affected by it."⁽¹⁹³⁾ The Act achieves this balance through the functions of the Inspector-General.⁽¹⁹⁴⁾ More specifically though, the Certificate asserts that Mr Zaoui is a risk to national security in terms of the Immigration Act, section 72, as listed in section 114C. This latter section, which lists the relevant security criteria, includes consideration of "reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention."⁽¹⁹⁵⁾ In making the Certificate, the Director relied on these grounds,⁽¹⁹⁶⁾ and therefore, the Inspector-General must include these grounds in the review.

This leads inevitably to the conclusion that Mr Zaoui's human rights are relevant to the propriety of the Certificate. The inclusion of the terms of Article 33(2) in the relevant security criteria has the effect of importing New Zealand's overall obligations under Article 33, as interpreted at international law. The Refugee Convention is explicitly mentioned: Mr Zaoui's danger to national security must be considered in light of New Zealand's obligations under that Convention. Indeed, "[i]t is difficult to comprehend a more direct way of importing these considerations into the statute."⁽¹⁹⁷⁾ In particular, Article 33 requires a balance between the seriousness of risk to national security with the adverse consequences of confirming the Certificate to Mr Zaoui. Tersely, the greater the risk to Mr Zaoui upon expulsion, the higher the risk to national security must be. Equally, it seems that the higher the risk to national security, the higher the importance of ensuring Mr Zaoui's human rights are protected.⁽¹⁹⁸⁾ The relevance of the Refugee Convention and other international considerations to is discussed more fully below, at paragraph 5.3.

The use of classified information in the context of Mr Zaoui's case invites enquiry into other areas of law that make use of similarly sensitive information. In particular, the analogous provisions in the Terrorism Suppression Act 2002 also make use of a broad notion of classified information.⁽¹⁹⁹⁾ As with the Certificate process, the Terrorism Suppression Act authorises the Government to utilise "classified security information" in making its decision to designate terrorists. However, this Act goes somewhat further in protecting the rights of an individual held, establishing a procedure that meets some of the objections to the Certificate process. Section 33 of the Terrorism Suppression Act specifically allows judicial review relating to the making of a designation, providing opportunity for individuals to challenge their designations in Court. Further, while the Act does not allow the accused person to see classified information against them, it redresses this in two ways. Firstly, the Act expressly requires the Court to approve and release to the accused person a summary of the classified information used against them "… except to the extent that a summary of any particular part of the information would itself involve disclosure that would likely prejudice the interests referred to in section 32(3)."⁽²⁰⁰⁾ Those interests referred to include the security or defence of New Zealand; international relations of New Zealand; the protection of information sources; the maintenance of law; and the safety of any person. Secondly, the Court may hear classified information in the absence of the accused, the accused's representative(s), and the public.⁽²