Counsel for Appellant: Ms J Lamont
Representative of NZIS: No appearance
Date of Hearing: 1 February 1995
Date of Decision: 30 November 1995
This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a national of India.
The appellant comes from the State of Jammu and Kashmir in India. He is a 46 year-old divorced man. His wife and two New Zealand-born children reside in New Zealand. The appellant’s father is dead, but his mother and two brothers and a sister still reside in Srinagar and another brother, H, resides somewhere in Europe. The appellant says that his family home has been invaded and partially destroyed by Indian security forces since he left the country.
The appellant is a well-educated man, having completed university studies and gained B.Sc. degree. He is fluent in English, Urdu and Hindi, and is a Muslim by religion. In Kashmir, he was a businessman dealing in Kashmiri arts and crafts and travelled extensively in Europe and the United States in the course of that business. After his arrival in New Zealand, he ran a small business in Auckland.
In 1965, the appellant says he joined the Peoples’ Action Committee (PAC) in Kashmir while he was still in college and attended a number of peaceful demonstrations. He completed his college education in 1971 and in 1985, ceased his association with the PAC and joined the Jammu Kashmir Liberation Front (JKLF) and again was involved in peaceful demonstrations. In the course of these demonstrations, he was detained several times by Indian security forces but released quickly.
The appellant explained that, as an activist in the JKLF, he organised demonstrations and gave financial support. He also organised the supply of weaponry and weapon training. The JKLF has as its objective the establishment of an independent state of Jammu and Kashmir. At present, control of this area is divided between Pakistan and India.
The appellant claimed that by 1985 he felt that things were beginning “to get hot”, and that a violent solution to the problems in Kashmir was imminent. As a result, he decided to leave.
On 23 February 1987, the appellant applied for a visitor’s visa to come to New Zealand for a business visit, and on 21 April 1987, he arrived in this country. Since his arrival in New Zealand, the situation in Kashmir has deteriorated considerably. Indian security forces were involved in what the appellant described as a battlefield in Srinagar from 1990 onwards. It is clear from the information available to the Authority, supplied both by the appellant and from other sources, that there is violent conflict between the government of India and elements of the Muslim majority in Kashmir. On 14 November 1987, he was married by proxy to his wife in Delhi under Indian law, and on 16 November 1987, his new wife arrived in New Zealand. On 15 March 1988, he made application for residence on business grounds, and, shortly after this, was arrested on serious drug charges involving the importation of a quantity of heroin into New Zealand.
On 14 August 1989, a removal warrant was served on the appellant, and on 30 August 1989, he was imprisoned for a total of 10 years and six months, as the result of a sentence delivered in the High Court at Auckland on charges of importing heroin, attempting to supply heroin, and possession for supply of heroin.
In March 1990, the appellant wrote to his solicitor, instructing him that he and his family were ready to leave New Zealand for India, if early deportation could be arranged. Accordingly, a letter was sent to the Minister’s office, stating that the appellant requested early deportation to India on the grounds that his wife and children would be unsafe in Kashmir without him to accompany them. This request was apparently not granted.
In February 1991, the appellant’s wife applied for refugee status, which was eventually granted on the ground that she, as a lone Muslim woman, and her young children would comprise members of a social group which would be the subject of persecution in Inda. The appellant was apparently released on parole in December 1994, but prior to that, in 1991, the appellant’s wife had obtained a dissolution of marriage here in New Zealand.
On 28 January 1993, the appellant applied for refugee status. His application was declined by the Refugee Status Section on the grounds that his fear was not well-founded, and that, in any event, even if he had been found to be a refugee, he should be excluded under Article 1F(c) of the Refugee Convention, because of his conviction on serious drug charges. The Authority in this appeal then, is faced with two main questions -
a) Can the appellant establish a claim to refugee status in terms of the Convention? and
b) If so, is he excluded from the Convention in terms of Article 1F(c)?
The appellant has produced a copy of a letter confirming his membership of the JKLF from 1985 onwards. He claims that he presented the original of this letter to the New Zealand Immigration Service, but it appears to have been mislaid.
The appellant says that his brother was employed as a state prosecutor against rebel elements and that he was suspended from his duties three years ago on charges that he was assisting rebel elements to avoid prosecution. An enquiry into his conduct is still proceeding, according to the appellant. He has a second brother in Srinagar who is not engaged in political activity, but the appellant’s mother who is elderly is a supporter of the JKLF as was her late husband. She has been forced to leave her home because of its destruction and moves about, staying with various relatives. The appellant acknowledges that he has not been in touch with most of his family for some five years. His brother, H, who now resides in Europe, apparently went there in 1990.
The appellant produced a letter dated 20 January 1994, (page 299 of volume II of the record). This letter was from his “non-political” brother who still resides in Srinagar, and refers to the fact that the appellant, while he was serving his term of imprisonment, had written letters to certain prominent persons in the JKLF, enquiring about the situation in Kashmir, and that these letters had been intercepted by the security forces. The brother’s letter makes it clear that the appellant will face difficulties with the authorities because of these letters if he returns. The appellant claims he is likely to face torture and persecution.
The letter also confirms that the brother, M, who was a former prosecutor, is facing problems because he is still under suspicion and enquiry in relation to the allegations against him. The letter warns the appellant against writing letters about Kashmir or saying anything on the telephone about it, as it creates more problems for the family.
The appellant says he has joined the New Zealand Kashmir Association and the New Zealand Muslim Association. He believes the Indian government will infer from these memberships that he is supporting the insurgency in Kashmir. He further suggests that his drug trafficking activities will be interpreted as fund-raising for the insurgents.
The appellant claims that, if he returns to India as a deportee, the police will enquire about him in Kashmir and he would be sent back there to face persecution. He would not have the opportunity to relocate anywhere else in India. In any event, he claimed that Kashmiris have a very difficult time living elsewhere in India and that, during this last stay in Delhi, in the course of one year, he was assaulted approximately 10 times because he was a Kashmiri Muslim living in a largely Hindu community. The appellant acknowledged that this was shortly after the assassination of Indira Gandhi in 1984, when emotions were running high in Delhi, and large numbers of Sikhs, for example, were murdered.
The appellant’s fear is of detention, torture and death at the hands of the security forces in Kashmir.
“... owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”In respect of this appeal, the relevant issues are:-
1. Is there a genuine fear?
2. Is the harm feared of sufficient gravity to constitute persecution?
3. Is the harm feared related to any of the five grounds recognised in the Convention, or is it related to other factors?
4. Is the fear of harm well-founded?
5. If the appellant is a refugee in terms of the Convention, is he excluded from protection by virtue of Article 1F of the Convention?
In our decision in Refugee Appeal No. 1/91 re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991), this Authority held that in relation to issue (4) the proper test is whether there is a real chance of persecution.
The Refugee Status Section’s decision avoided making a finding on credibility since the person who interviewed the appellant was not the person who made the final decision on the claim. Nevertheless, the decision-maker made reference to the fact that the appellant had, while in prison, sought an early deportation to India with his wife and children, by letter dated 3 September 1990. This fact, in itself, appeared to raise some doubts about the credibility of the appellant’s claim of fear of persecution, in the mind of the decision- maker, and it causes this Authority some concern as well.
We noted the following further matters which reflected on the appellant’s credibility.
1. The appellant did not mention in any previous statements or his memorandum of appeal that his work with the JKLF included organising the supply of weaponry and the training of activists. This was only revealed during the hearing before this Authority.
2. The appellant was generally vague in his statements as to what particular work he did on behalf of the JKLF.
3. The appellant, a well-educated man, was vague about the chronology of events in his life, such as when he attended school and college, when he commenced work, when he joined the PAC, and when he joined the JKLF.
4. In his initial statements, the appellant appeared to rely on events occurring since he left Kashmir as providing grounds for asylum. Before the Authority however, he claimed, for the first time, that he left Kashmir because he had information that the security forces were aware of his political activity and he felt “things were getting hot” for him.
5. The appellant was asked why he did not go to Pakistan where Kashmiri activists were sheltering. He stated that he did not wish to be involved in the militant activity which the Kashmiris in Pakistan were conducting. We were unable to accept this explanation since the appellant claimed he was involved in obtaining weaponry for the militants to use and in organising the training of activists.
6. We found it inconsistent with his claim that he was able to leave Kashmir and pass through Delhi airport without difficulty using his own passport. We felt that if, in fact, the security forces had a particular interest in him they would have taken steps to ensure that he did not leave the country.
7. The appellant obtained his New Zealand visa in early 1987 and left India in April 1987. He acknowledged in the Immigration questionnaire at page 195 of the record that the independence movement in Kashmir was non-violent until 1989. This appears to be borne out by a reference in the publication “India Human Rights in Jammu and Kashmir” (March 1995) issued by the Immigration and Refugee Board of Canada at page 1 which refers to an armed militancy gaining momentum in 1989. This fact seems somewhat at odds with the appellant’s claim to the Authority that he was organising training for activists and arranging weaponry for them during his short membership of the JKLF in 1986-87, two years or more prior to the outbreak of armed militancy.
8. The appellant claims to have written letters to leaders of the JKLF which have never been received according to information from his family. He suspects these letters have fallen into the hands of the security forces. His brother’s letter written in January 1994 claims that in fact the letters are held by the security forces but does not explain how he came by this information. We find it an unbelievably dangerous action for the recipients for the appellant to have written such letters, but even if he has written them, there is no clear evidence that they have fallen into the hands of the security forces.
9. The brother's letter is self-serving in nature. We are not prepared to rely upon it as a truthful account of the security forces’ interest in the appellant.
10. The membership certificate purporting to be issued by the JKLF, a copy of which appears at page 302 of the record, is quite unconvincing. The signature is indecipherable and scrawled over the name stamp of the author; the name of the organisation is misspelled in English; the letter is undated. We do not accept it as a genuine document.
11. When questioned about the possibility of relocating to Delhi the appellant claimed that he had been the victim of assaults there. It was only after protracted questioning that the appellant was able to give even an estimate of some ten assaults on him by Hindus. We formed the impression that the appellant was making up this portion of his evidence as questioning proceeded.
12. The appellant has not produced any evidence to support his claim that his membership of the New Zealand Kashmir Association or the New Zealand Muslim Association could result in his being persecuted on return to India as he claims.
For the reasons given, we find this appellant’s account implausible and not worthy of credit. Accordingly, we answer the first four issues framed in the negative.
Article 1F of the Convention provides:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:-
a) he has committed a crime against peace, a war crime or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;
b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”The Refugee Status Section, in its decision, found that the appellant was excluded from refugee status by virtue of paragraph (c) of Article 1F because he had been guilty of acts contrary to the purposes and principles of the United Nations in carrying out the drug offences in New Zealand previously described. In arriving at this conclusion the Refugee Status Section relied upon a line of Canadian decisions supporting the proposition that serious drug offending is an act contrary to the purposes and principles of the United Nations in terms of Article 1F(c).
Ms Lamont, in her submissions,
reminded the Authority that the UNHCR Handbook warns against too
ready an application of the exclusion clause in relation to refugee claims.
She also reminded the Authority that both the handbook and certain learned
commentators, in particular Professor Hathaway in The Law of Refugee
Status (1991) at page 226 et. seq., took the view that crimes under
Article 1F(c) must be crimes committed by persons in state authority and
that since the appellant was not a person in a position of authority, the
Article should not be applied to him. Counsel submitted that the Canadian
decisions, to which we will refer in detail later, do not provide adequate
reasons to allow New Zealand to depart from the view expressed by Hathaway
that the precise interpretation to be take in relation to Article 1F(c)
was a matter of confusion historically as to the intentions of the original
drafters. She submitted that to apply the Canadian interpretation to the
instant case would be to engineer a situation to avoid Article 33 of the
Convention which forbids the refoulement of refugees. Finally, she submitted
that if the Authority was inclined to accept the Canadian approach, certain
ameliorating factors should be taken into account as regards the appellant’s
particular offence, namely that it was his first offence; that he was found
in possession of a comparatively small amount of heroin, namely 0.4 grams;
he was treated more leniently than one of his co- accused; he had served
his sentence and been granted parole as a result of good behaviour and
that he would have been prepared to assist the police if he had been asked
to do so but he was not given this opportunity.
We consider it is necessary at this point to examine in detail the nature of the offences committed by the appellant, as set out in the prosecution summary and the sentencing judge’s remarks, copies of which were produced by counsel for the appellant. The appellant was convicted of the importation of a substantial quantity of 40% pure heroin with a street value of approximately NZ$1,000,000 and also of possession for supply of the same drug. The quantity found in his possession was about 10% of the total quantity. The appellant was also convicted of the offence of attempting to supply one ounce of heroin to the value of some NZ$12,000. His sentences were ten and a half years imprisonment on the charge of importing; eight years on the charge of possession for supply and four years for the attempt to supply to be served concurrently. The details of the offences disclosed that the appellant was one of three co-accused who were living together in Auckland. One of those three travelled to New Delhi in India where, by arrangement, he met one H who was the appellant’s brother. H has been previously referred to in this decision. There, a pair of shoes in which the heroin in question was concealed were handed by H to the appellant’s co-accused and he left India and travelled back to New Zealand, wearing the pair of shoes in question. On his arrival in Auckland the appellant was involved in cutting open the sole of one of the shoes and extracting some of the heroin. The following day, as a result of a police operation, the appellant and a co-accused were stopped in Auckland in a motor vehicle. The appellant was searched and a plastic bag containing 1.6 grams of heroin was located in his left sock and a further 28.6 grams of heroin were located behind the passenger’s seat occupied by the appellant at the time the vehicle was stopped. A further 18 bags of high grade heroin were found back at the address shared by the three accused. The remarks of the sentencing Judge indicated that a serious view was taken of the offending.
The UNHCR Handbook at paragraph 162 in discussing Article 1F(c) states:-
“It will be seen that this very generally worded exclusion cause overlaps with the exclusion clause in Article 1F(a); for it is evident that a crime against peace, a war crime or a crime against humanity is also an act contrary to the purposes and principles of the United Nations. While Article 1F(c) does not introduce any specific new element, it is intended to cover in a general way such acts against the purposes and principles of the United Nations that might not be fully covered by the two preceding exclusion clauses. Taken in conjunction with the latter, it has to be assumed, although this is not specifically stated, that the acts covered by the present clause must also be of a criminal nature.”In paragraph 163, the Handbook continues:-
“The purposes and principles of the United Nations are set out in the preamble in Articles 1 and 2 of the Charter of the United Nations. They enumerate fundamental principles that should govern the conduct of their members in relation to each other and in relation to the international community as a whole. From this, it could be inferred that an individual in order to have committed an act contrary to these principles, must have been in a position of power in a member state and instrumental to his state’s infringing these principles. However there are hardly any precedents on record for the application of this clause which due to its very general character should be applied with caution.”Hathaway, after considering various possible interpretations of Article 1F(c), appears to favour the same conclusion that the Article should only apply to persons in positions of authority. At page 228 of The Law of Refugee Status he says:-
“The multiplicity of possible interpretations bears witness to the concern of several delegates that the vagueness of the clause left it open to misconstruction or abuse. Moreover, all of these interpretations are substantially problematic. The exclusion of collaborators, war criminals and persons guilty of crimes against humanity can be achieved under Article 1F(a), thus rendering the “principles and purposes” exclusion redundant. Concern with persons intending to subvert the asylum state can be addressed under Article 33(2), while exclusion on the basis of efforts to topple the regime of a refugee-producing state seems misplaced in view of the United Nations commitment to human rights and self determination. The exclusion of those who breach human rights standards or who fail to support other goads of the world community is more compelling, but the range, in detail and relative obscurity of such standards would work a real hardship in the case of the average citizen who generally looks only to domestic law to understand their duties.The Charter of the United Nations lists four purposes of the organisation:
- To maintain international peace and security;
- To develop friendly and mutually respectful relations among nations;
- To achieve international co-operation in solving socio-economic and cultural problems, and in promoting respect for human rights;
- To service a centre for harmonising actions directed to these ends.
These basic purposes bind member states through a series of principles set out in Article 2 including respect for sovereign equality; good faithful fulfilment of obligations; peaceful settlement of disputes; refraining from use of force against the territorial integrity or political independence of another state; and promotion of the work of the United Nations. It is clear that these principles speak essentially to governments and that most individuals can violate even the spirit of the purposes and principles only through the commission of a crime against peace and security or of a serious criminal offence. The independent utility of this exclusion clause is thus, somewhat elusive.”At page 229, the learned author concludes:-
“A sensible and purposeful interpretation of this exclusion clause advocated by the United Nations is therefore that it is intended to enable states effectively to act as agents of the international community in bringing to bear basic norms of acceptable international conduct against government officials who ought reasonably to understand and respect them and to avoid tarnishing refugee status by the admission to protection of those who have exploited their political authority to jeopardise the well-being of individuals, their nation or the world community.”Grahl-Madsen, in his work Status of Refugees, Volume 1 at page 283 after reviewing the
“Considering the great divergence between these interpretations it is easily understandable that the Social Committee of the Economic and Social Council expressed genuine concern, feeling that the provision was so vague as to be open to abuse. It seems that agreement was reached on the understanding that the phrase should be interpreted very restrictively.”The author comments that those who had pressed for inclusion of the clause had only vague ideas as to the meaning of the phrase “acts contrary to the purposes and principles of the United Nations”. Grahl-Madsen, like other commentators, has assumed that the reference to purposes and principles of the United Nations in Article 1F(c) was in fact a direct reference to the Charter of the United Nations chapter one of which is entitled “Purposes and Principles”. Grahl-Madsen, at page 286, commented:-
“However carefully we read these provisions it is difficult to see how persons who do not occupy a responsible governmental position may offend against the Purposes and Principles thus set forth with the possible exception of certain flagrant acts in disregard of human rights and fundamental freedoms.”In his text, Grahl-Madsen reviewed several cases where Article 1F(c) led to rejection of applications for refugee status. In two of those cases there was no clear reasoning as to how the conclusion was reached and both appeared to be cases which could conceivably be regarded as war crimes, involving as they did denouncing fellow countrymen to the Germans during the war so as to result in their being deported to Germany and brought to death. A German case applied Article 1F(c) to a plaintiff who had occupied a position as a censor of the press and other publications to ensure they conformed to official ideology and propaganda. The German court found that such censorship violates paragraphs 2 and 5 of the preamble of the Charter, as well as Articles 2, 12 and 19 of the Universal Declaration of Human Rights. It is noteworthy that Grahl-Madsen did allow the possibility that, in certain circumstances, individuals who were not necessarily in a position of power or a position of authority in a state could be the subject of Article 1F(c). However, these cases appeared to eb ones which involved deprivation of human liberty such as hostage taking and hijacking crimes. Goodwin Gill, in The Refugee in International Law at page 63 examines the provision and the conflicting approaches to it but does not appear to arrive at any clear conclusion on the question of whether or not the interpretation of the Article should be confined to persons in authority.
Rikhof, in an article reported in  24 Imm LR (2nd) 31 at page 62, having considered the contributions of various delegates to the conference no the draft Convention between 2 July 1951 and 25 July 1951 concludes:-
“Although the above debates are not exactly paragons of clarity with respect to the meaning of exclusion ground F(c), some observations can be made:
1) This exclusion ground is meant to be a residual one to the two preceding grounds;
2) The acts committed must be criminal in nature;
3) The exclusion ground appears to be capable of including acts committed both in the country of refuge and in the country of origin;4) From the examples given by the various delegates of what would constitute acts against the principles and purposes of the United Nations, it appears that both acts which can be committed by individuals and acts which can only be committed by individuals in the exercise of government functions were contemplated.”
We turn now to consider the
Canadian line of decisions relied upon by the Refugee Status Section in
its decision. The first reported case was a decision of the Immigration
and Refugee Board in Re Manikkam  17 Imm LR (2nd) 236.
In that case, the Board held that, while the claimant had a well-founded
fear of persecution if he returned to Sri Lanka for a convention reason,
there was serious reasons for considering he had been guilty of acts contrary
to the purposes and principles of the United Nations because of his conviction
in Canada no charges involving heroin, he having stored a quantity of heroin
valued at Canadian $7.5 million dollars and been involved in its distribution.
He was convicted and sentenced to 12 years imprisonment. The Board
held that there was ample evidence that the fight against the illegal traffic
in narcotics was one of the purposes of the United Nations falling under
Article 1(3) of its Charter. The Board had before it evidence of
the initiatives taken by the United Nations to counter drug trafficking.
The Board said at page 245:
Having due regard to their constitutional, legal and administrative systems, the Parties shall:
(a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;
(b) Assist each other in the campaign against the illicit traffic in narcotic drugs;
(c) Co-operate closely with each other and the competent international organisations of which they are members with a view to maintaining a co- ordinated campaign against the illicit traffic; ....”
At pp 39 and 40 we note that Article 36 of the Convention provides for penal provisions for persons involved in the illicit trafficking in narcotics”.At page 247 it continued:
“There is ample evidence that the United Nations has taken many initiatives in respect of the drug problem. In its publication “The United Nations and Drug Abuse Control”7 the United Nations lists no fewer than 19 organisations under its umbrella or associated with it that have taken action in respect of, or are solely devoted to, the illicit drug issue. The commission on Narcotic Drugs is one of the Economic and Social Council of the United Nations’ (ECOSOC) six functional commissions. The International Narcotics Control Board was established by the 1961 Single Convention on Narcotic Drugs to limit the cultivation, production, manufacture, and utilisation of drugs. There are three units in the United Nations Secretariat responsible for drug abuse control activities. There is a United Nations Fund for Drug Abuse Control, to which 90 governments contribute. The list goes on and on”.The Board also found that the person referred to in Article 1F(c) did not have to be in a position of power in a member state and instrumental in his state’s infringing the UN principles. It considered that a person who has committed a serious criminal act, that is clearly against major initiatives of the UN is not worthy of the protection of the country of refuge in which he committed such an act. Accordingly the appellant’s claim to refugee status was declined.
The next relevant decision was that of Pushpanathan v Minister of Employment and Immigration, (1993), FCJ No. 870 (3 September 1993). In this case, McKeown J upheld the decision of the Immigration and Refugee Board excluding the applicant from refugee status in terms of Article 1F(c) of the Convention on the grounds that he had been guilty of acts contrary to the purposes and principles of the United Nations in being involved in trafficking in illegal drugs. In that case it was held that the intention of the exclusion clauses in article 1F of the Convention was to exclude certain persons, even if genuinely at risk of persecution. McKeown J found that there was no reason to limit the application of Article 1F(c) of the Convention to persons in a position of power and that the wording of the Article does not permit such a discrimination. He acknowledged there may be many cases where Article 1F(c) should not be applied because of the nature of the violation of the United Nations purposes and principles but that this particular case was not one of them. The brief report available to this Authority of that case does not reveal the particular circumstances of the appellant’s drug trafficking offence.
The third, and perhaps most significant, decision of the Canadian Federal Court is that of Thamotharampillai v The Minister of Employment and Immigration  3 FC 99, a decision of Gibson J in the trial division. In this case the appellant, a Sri Lankan, had been found to be a Convention refugee in 1985. In 1990 he was convicted of conspiracy to traffic in narcotic and was sentenced to three years imprisonment. As a result a conditional deportation order was issued against him and he once again claimed Convention refugee status. The appellant came before the Convention Refugee Determination Division of the Immigration and Refugee Board and by a decision dated 9 June 1993, the appellant was deemed to have been excluded from the Convention by the operation of Article 1F(c). In a decision issued on 22 April 1994, Gibson J made a number of important observations in the course of deciding an application for review. In paragraph 10 he said:-
“While I have some difficulty with the CRDD’s determination set out in the foregoing quotation that the fight against illegal traffic of narcotics is certainly one of the purposes of the United Nations, falling under Article 1(3) of its Charter, I have no difficulty concluding that it is an activity within the ambit of those purposes. The result is, I conclude, the same.”The learned judge then went on to examine what he described as the critical issue argued before him as to whether or not the CRDD had erred in law in preferring a broad or liberal interpretation of Article 1F(c) to the more restrictive interpretation suggested in the UNHCR Handbook and in the comment by Professor Hathaway. He went on to refer to Ramirez v Minister of Employment and Immigration (1992) 2 FC 306; 135 NR 390 (CA) at page 312 and noted that MacGuigan JA in referring to the interpretation of other paragraphs of the UNHCR Handbook said:-
“Therefore, although the appellant relied on several international authorities which emphasise that the interpretation of the exclusion clause must be restrictive, it would nevertheless appear that, in the aftermath of Second World War atrocities, the signatory states to this 1951Convention intended to preserve for themselves a wide power of exclusion from refugee status where perpetrators of international crimes are concerned.”Gibson J went on to say:-
“While the crime committed by the applicant, and here in question certainly bears no relationship to the “aftermath of Second World War atrocities”, it certainly was a crime with international implications. Heroin is not a locally produced narcotic. The crime in question was a crime against which the United Nations has initiated, co-ordinated and undertaken a range of international initiatives, and, in that regard, is certainly on a scale equivalent to or greater than the “fight against hijacking and hostage taking” referred to in the extract from Professor Hathaway’s text cited by the CRDD in its reasons.”Gibson J also referred to Moreno and Sanchez v Minister of Employment and
“The thrust of the appellant’s arguments is that the Board and this Court should construe narrowly the exclusion clause in view of the possible persecution awaiting persons who might otherwise be declared Convention refugees. I recognise that this view is echoed by all the leading commentators and reinforced in the UNHCR Handbook,;... As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause first by reference to the existing jurisprudence of this Court and second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.”Gibson J, after referring to the lack of clarity of the intent of the signatories to the Convention, examined the decision in Pushpanathan (supra). He then concluded that the construction of the Article adopted by the CRDD was the construction most agreeable to justice and reason in all the circumstances of the case. He said:-
“The crime of which the applicant was convicted on a plea of guilty was one involving significant international implications. It constituted an element of international criminal activity against which the United Nations has initiated, co-ordinated and undertaken significant initiatives within its purposes and principles. It was a crime that, within Canada, potentially had fearful social, cultural and humanitarian repercussions, to say nothing of its economic repercussions. As part of an international scheme those repercussions extended well beyond the borders of Canada.”He then proceeded to dismiss the application.
Counsel for the appellant has also referred the Authority to a decision of the CRDD reported in “Reflex”, a publication of the Immigration and Refugee Board of Canada, Issue 28 page 1 (29 April 1994), involving a refugee claimant convicted in Canada for possession of a narcotic and trafficking in a narcotic in the form of cocaine, with a street value of $50.00 for which the claimant received a two month jail sentence. After considering the decision in Pushpanathan, the panel concluded that 1) trafficking in narcotics is an act contrary to the principles and purposes of the United Nations and therefore within Article 1F(c); 2) the application of this exclusion clause is not limited to persons in power and 3) there is no balancing between the risk of persecution and the offence that leads to the exclusion. The Board concluded, however, that the claimant’s conviction for drug trafficking, which was for such a minor quantity, did not bring her within Article 1F(c) and noted that McKeown J, in Pushpanathan, had indicated that there may be cases where this exclusion clause should not be applied because of the nature of the violation.
It will be seen that, in comparison with the Canadian cases, the drug offences of which the appellant in the instant case was convicted, are at the serious end of the scale and that, if we were to follow the Canadian interpretation of Article 1F(c) there is no question that the nature of his offence is such that the exclusion clause would be applied to him.
The Canadian decisions have been the subject of criticism by Halewood in the Immigration Law Reporter (2nd) Volume 25 (1995) page 305. He commented:
“First, it is apparent that prior to the drug related cases which are the subject of this paper, the CRDD excluded persons pursuant to Article 1F(c) only in situations where the person concerned had committed or been complicit in the violations of the human rights of others; and second, did so through occupying a position of state sponsored authority.”The author then points out that the cases under examination do not cmoply with either of those two conditions. After referring to the views of Hathaway, Goodwin-Gill and Grahl- Madsen, the author concludes that it was not open to the CRDD or the Federal Court to extend Article 1F(c) to cover drug trafficking situations because it presumes an application of international law which is illegitimate. He further states that never has the United Nations been given the power to adjudicate cases of individuals unconnected with governmental authority suspected of crimes which are not human rights violations. He argues that the courts could not make decisions inconsistent with international law. He further argues that the purposes and principles of the United Nations are necessarily limited by the legality of its mandate. He says:-
“Each of the Narcotics Conventions explicitly states that state sovereignty takes precedence over any of the obligations that the Conventions attempt to impose on the signatory states, and that the definition of offences and the enforcement attendant to those definitions are strictly the internal concern of the state parties to the Convention. Those Conventions are concerned with states committing themselves to reporting drug phenomena within their own respective territories, including domestic efforts to regulate commercial production of drugs, drug trafficking and efforts made at rehabilitating convicted drug addicts. At no point do they pierce through the doctrine of state sovereignty and connect liability to individuals for their actions, as had the three war crimes tribunals, and the Conventions pertaining to torture, apartheid and genocide”.We have considered the criticisms of the Canadian decisions and the views of the commentators and we are mindful of the general argument that a person who has already been convicted and served a sentence for drug trafficking offence could claim in a sense to be in double jeopardy if he were also to be refused refugee status when it is clear that he will be returning to a situation of persecution if refouled. We are, however, concerned to place an interpretation on the terms of Article 1F(c), “most agreeable to justice and reason” (per Moreno supra). A reading of the Article does not admit of the limitation advocated by the UNHCR Handbook and the commentators. It is significant that Rikhof’s analysis of the travaux preparatoires reveals no such limitation behind the intentions of the delegates. Rather it reveals a more general intent behind the wording. The wording does not limit the application of the article to acts defined in international instruments as does that in Article 1F(a) and it does not impose limits as to the place in which acts are committed as does that in Article 1F(b).
The commentators all appear to assume that the reference to “the purposes and principles of the United Nations” is a specific reference to those set out in the United Nations Charter. We have considerable doubts as to the validity of that assumption. Rather we are inclined to the view that the reference must be taken to be to what counsel referred to as “the contemporary purposes” of the United Nations Organisation. The United Nations is a living organ, the purposes and principles of which may be expected to evolve to meet the changing needs of the international community. However, we are content, in any event, to accept the view of Gibson J in Thamotharampillai that the fight against illegal traffic in narcotics is an activity within the ambit of the purposes of the United Nations Charter.
As for the arguments raised by Halewood, we find ourselves unconvinced by his reasoning. First, he argues that the United Nations has never been given the power to adjudicate cases of individuals other than those in positions of governmental authority suspected of crimes which are not human rights violations. We have already rejected the argument that the individual must be in a position of authority to be caught by the article. Again, the wording of the article makes no attempt to limit the acts of violations of human rights.
Secondly, he reasons that each of the Narcotics Conventions expressly gives state sovereignty precedence over obligations of states under the conventions.
Definition and enforcement of offences are the internal concern of state parties to the Conventions. The Conventions do not connect liability to individuals for their actions as do Conventions on torture, apartheid and genocide, for example. We feel, however, that a distinction must be drawn between connecting the precise liability for the offences themselves and the exclusion from the benefits of a convention, attendant upon the commission of such offences. We do not accept that “adjudication” of individual cases is being attempted by the United Nations as a result of the Canadian decisions. After all, the Article merely requires that there be “serious reasons” for considering that the offence has been committed, not that liability be established.
We accept the view expressed in Manikkam and supported by the decisions of the Canadian Federal Court, that a persno who has committed a serious criminal act, clearly contrary to major initiatives of the United nations should not be entitled to the protection of the country of refuge in which he has committed such an act. The serious nature of the appellant’s offending and the international flavour of the offences, involving making arrangements with the appellant’s brother in India for the importation of a substantial quantity of heroin, requires that Article 1F(c) be applied to him. We do not accept counsel’s submission that ameliorating factors should be taken into account, gievn the serious nature of the offences.
(1) That Article 1F(a), (b) and (c) exclude from refugee status certain person who would otherwise be entitled to refugee protection.
(2) That Article 1F(c) is intended to apply not only to individuals in positions of governmental authority but to individuals generally.
(3) That Article 1F(c) is not confined in its application to acts which constitute iolations of human rights.
(4) That the initiatives of the United Nations in relation to drug trafficking come within the ambit of the purposes of the United Nations Charter..
(5) That there are serious reasons for considering that this appellant has been guilty of serious drug trafficking offences within New Zealand.
(6) That these offences amount to acts contrary to the purposes of the United Nations within the terms of Article 1F(c).
Accordingly, we find that the
appellant would be excluded from the benefits of the Refugee
Convention even if he had met the criteria for refugee status. The
appeal is dismissed and refugee status is declined.
"B O Nicholson"