Court of Appeal Cases 

Court of Appeal, Wellington CA181/97; [1999] NZAR 205
30 September 1997; 13 October 1997
Richardson P, Henry, Keith, Tipping and Williams JJ (judgment delivered by Keith J)

Treaties - domestic incorporation - whether in the absence of legislation the Executive can change the law by entering into treaties - whether desirable to enact legislation in respect of refugee status determination procedures

Treaties - treaty interpretation - status of UNHCR Handbook

Judicial review - new grounds in Court of Appeal - grounds of challenge in the Court of Appeal markedly different from those argued in the High Court - whether new grounds should be considered

Judicial review - error of law - whether question of error of law to be assessed by reference to the law at the time the tribunal made the decision or at the time of hearing the application for review

Judicial review - jurisdiction to review - refugee status determination procedures - whether decisions of Refugee Status Appeals Authority reviewable - effectiveness of RSAA decision in respect of immigration status

Refugee Status Appeals Authority - jurisdiction to review - whether decisions reviewable

State protection - whether central to definition of refugee - true object of Convention

Internal protection alternative - relocation - internal flight alternative - reasonableness - whether tribunal commits error of law in not separately addressing the reasonableness element if no such element presented as arising from the facts

Internal protection alternative - relocation - internal flight alternative - reasonableness - whether reasonableness element a stand alone test - relevance of social, economic and political circumstances of the application, including the circumstances of members of the family

Procedure of RSAA - burden of proof - whether refugee claimant has the burden of establishing the elements of the claim

The appellant, a married man with two children aged 16 and 15, was born in Belfast and was a citizen of both the United Kingdom and of the Republic of Ireland. While on bail pending appeal against conviction and an 18 month sentence on a charge of suspicious possession of ammunition, he travelled to New Zealand with one of his sons and with his de facto pregnant partner. His wife and second son joined him later. On 30 August 1991 he applied for refugee status claiming that if he returned home he risked being murdered as an alleged informer by the Irish People’s Liberation Organization (IPLO), and he also said he feared persecution by the Royal Ulster Constabulary (RUC).

The application for refugee status was declined by the Refugee Status Branch (RSB) on 10 March 1992 and the appeal to the Refugee Status Appeals Authority (RSAA) was dismissed on 14 December 1992. The RSAA found that the anticipated harm amounted to persecution for a Convention reason, namely political opinion, but two of the three RSAA members held that the fear of persecution was well-founded only in relation to the IPLO. The remaining member found that the fear of persecution was well-founded in relation to the RUC as well. The appeal, however, failed because all members agreed that the appellant could be confined safely in prison in Northern Ireland (given that he had yet to serve the 18 month sentence) and that the real chance of persecution existed only if he were to thereafter remain in Northern Ireland. They all considered that there was no real chance were he to go to Great Britain at the end of the sentence. The majority also found that he could safely relocate to the Republic of Ireland.

Before the Court of Appeal it was submitted that the RSAA had not in the relocation context, considered the reasonableness of relocation to another part of the country, nor had it in addressing the reasonableness issue, taken into account the rights in respect of the family as found in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. In addition, subsequent to the dismissal of the appeal, the RSAA had in a decision given in March 1995 held that relocation (or the internal flight alternative) turns on two issues:

(a)  Can the individual genuinely access domestic protection which is meaningful?

(b)  Is it reasonable, in all the circumstances to expect the individual to relocate?

Held:

1    While the grounds for the challenge to the RSAA’s decision were markedly different from those argued in the High Court, the issue was a narrow one of law relating to the definition of “refugee” in the Refugee Convention and Protocol. As well, the importance to the appellant and his family of the decision to execute (or not) the removal warrant he faced and the possibly grave consequences of that action led the court to consider the new grounds (see paras [4] & [5]; [1999] NZAR 205, 207).

2    A person claiming refugee status has the burden of establishing the elements of the claim. That rule should, however, not be applied mechanically. Those making a decision which may put an individual’s right to life at risk and courts reviewing any such decision have a special responsibility to see that the law is complied with (see para [30]; [1999] NZAR 205, 213).

R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514 (HL) applied

3    Before the RSAA neither the appellant’s evidence nor his submissions had raised or addressed the issue of the unreasonableness or harshness of relocation. The focus of his case had been on the issue of protection. In the circumstances it could not be said that the RSAA had committed an error of law in not separately addressing a distinct reasonableness element. No such element had been presented to it as arising from the facts. This was not the kind of case when either the law or the factual situation before the RSAA required it of its own motion to take up any such additional element (see paras [37] & [38]; [1999] NZAR 205, 215).

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, 270-271, 280 (Black CJ and Whitlam J) (FC:FC) referred to

4    An application for review on the ground that a body has made an error of law would seem by its very nature to require that the assessment be made by reference to the law of the time (as compared with an appeal by way of rehearing where the evolving law can be invoked), but such an approach in the present context might be thought to be technical. Accordingly, the matter of interpretation would be addressed directly (see para [46]; [1999] NZAR 205, 216).

5    Central to the definition of “refugee” is the basic concept of protection, namely the protection accorded (or not) by the country of nationality or, for those who are stateless, the country of habitual residence. If there is a real chance that those countries will not provide protection, the world community is to provide surrogate protection either through other countries or through international bodies. The lynch-pin is the State’s inability to protect. The true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people when fear of persecution is in reality well-founded (see paras [47] & [48]; [1999] NZAR 205, 216-217).

Canada (Attorney General) v Ward [1993] 2 SCR 689, 709 (SC:Can) and R v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958, 1000 (HL) applied

6    On the issue of relocation, the various references to and tests for “reasonableness” or “undue harshness” must be seen in context, or against the backcloth that the issue is whether the claimant is entitled to the status of refugee. It is not a stand alone test, authorizing an unconfined inquiry into all the social, economic and political circumstances of the application including the circumstances of members of the family. The test is sharply different from the humanitarian tests provided for in the Immigration Act, ss 63B and 105. It does not in particular range widely over the rights and interests in respect of the family: the refugee inquiry is narrowly focused on the persecution and protection of the particular claimant. In no case to which the court was referred were international obligations in respect of the family seen as being linked to the definition of refugee. While family circumstances might be relevant to the reasonableness element, there was no basis for such a link on the facts of the present case.  In addition, at the time of the decision of the RSAA, New Zealand had not become bound by the Convention on the Rights of the Child (see para [49]; [1999] NZAR 205, 217).

Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589, 598 (FC:CA) and R v Secretary of State for the Home Department, Ex parte Robinson [1997] 3 WLR 1162; [1997] 4 All ER 210 (CA) referred to

7    Rather than being seen as free-standing, the reasonableness test in the relocation context must be related to the primary obligation of the country of nationality to protect the claimant.  Meaningful national state protection which can be genuinely accessed requires provision of basic norms of civil, political and socio-economic rights.  It is not a matter of a claimant’s convenience or of the attractiveness of the place of relocation.  More must be shown.  The reasonableness element must be tied back to the definition of “refugee” set out in the Convention and to the Convention’s purposes of original protection or surrogate protection for the avoidance of persecution.  The relocation element is inherent in the definition; it is not distinct.  The question is whether, having regard to those purposes, it is unreasonable in a relocation case to require claimants to avail themselves of the available protection of the country of nationality (see para [50]; [1999] NZAR 205, 218).

Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589, 598-599 (FC:CA) referred to

8    It followed that there was no error of law in the RSAA’s determination. Its members did include a reasonableness element in their decisions that the appellant was not a refugee within Article 1A(2) of the Convention, in a manner which was appropriate in the circumstances of the appeal. As well, there was no basis arising from those circumstances and the definition of “refugee” for an argument that the rights and interests of the family as referred to in the relevant international texts had to be considered (see para [51]; [1999] NZAR 205, 218).

Observations:

1        As to the reviewability of decisions of the RSAA, the following matters were noted:

(a)   The non-statutory powers exercised in cases cited in argument appear to have had legal effect under the law of the country in question - for instance by way of the exercise of the prerogative to grant a pardon, or of the power to grant compensation, or to recognize (or not) the bargaining power of a trade union, or to approve or not a proposed commercial transaction for stock exchange purposes. By contrast, the RSAA determination was not in law effective in respect of immigration status (see para [54]; [1999] NZAR 205, 218).

Burt v Governor-General [1992] 3 NZLR 672 (CA) and Electoral Commission v Cameron (1997) 10 PRNZ 440, 447-448 (CA) referred to

(b)    While the entering into a treaty is the exercise of a prerogative power and some prerogative powers are subject to judicial review, the carrying out of its obligations might or might not involve prerogative powers; legislative or general common law powers might be used. It is to be noted that while s 40 of the Immigration Act 1964 expressly saved the prerogative, there is no such provision in the Immigration Act 1987 (see para [54]; [1999] NZAR 205, 219).

(c)    If the courts can consider applications for review in cases such as this, the basic principle that the executive cannot change the law by entering into treaties in the absence of securing any necessary legislative change would appear to be avoided (see para [54]; [1999] NZAR 205, 219).

New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) referred to

3    While the court had no reason at all to doubt that the RSAA had exercised its functions with independence and judgment notwithstanding its lack of legislative basis, if there was good reason for other immigration tribunals to be established by legislation, there was at least equal reason in the case of the RSAA (see para [59]; [1999] NZAR 205, 220).

4  The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status is often referred to in judgments but sometimes caution is expressed. The role of subsequent State practice in the interpretation of a treaty is addressed in the Vienna Convention on the Law of Treaties 1969, Article 31(3)(b) (see para [34]; [1999] NZAR 205, 214).

Canada (Attorney General) v Ward [1993] 2 SCR 689, 713-714 (SC:Can) and Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379, 392; 87 ALR 412, 420 per Mason CJ (HCA) referred to.

Appeal dismissed.   No order for costs

Other cases mentioned in judgment

Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA)

R v Home Secretary, ex parte Ikhalk (16 April 1997) (CA)

R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg [1994] QB 552

Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347

D v Minister of Immigration [1991] 2 NZLR 673 (CA)

Counsel
R E Harrison QC for the appellant
E D France and C Geiringer for the first respondent

[Editorial note: One of the difficulties faced by the Court of Appeal was the long delay between the dismissal of the appeal by the RSAA and the hearing in the Court of Appeal. The substantive hearing of the judicial review proceedings did not take place in the High Court until 18 July 1997, with judgment being delivered on 29 July 1997. See Butler v Attorney-General (High Court, Auckland, M26/93, 29 July 1997, Robertson J). The issue of delay is addressed by Robertson J at pp 2-5 and 16-17. The hearing in the Court of Appeal took place on 30 September 1997, the appeal being dismissed on 13 October 1997.

The decision of the RSAA on relocation referred to in the Court of Appeal judgment is Refugee Appeal No. 523/92 Re RS (17 March 1995). This was at the time the principal decision of the RSAA on relocation. For torture victims and relocation see Refugee Appeal No. 135/92 Re RS (18 June 1993).

Prior to the decision of the Court of Appeal in Butler, the RSAA preferred the expression “relocation” because, as stated in Refugee Appeal No. 523/92 Re RS (17 March 1995) at 29, to pose any question postulated on an internal flight alternative is to ask the wrong question. The question is not one of flight, but of protection and is to be approached fairly and squarely in terms the refugee definition which specifically emphasizes the protection issue:

“...is unable or ... is unwilling to avail himself of the protection of that country.”
 

Mrs Butler did not herself apply for refugee status but she later brought proceedings challenging the decision of the Removal Review Authority dismissing her appeal against a removal order served by the New Zealand Immigration Service. Her challenge was unsuccessful. See Butler v Removal Review Authority [1998] NZAR 409 (Giles J) and Butler v Removal Review Authority [1999] NZAR 68 (Wild J).

As to the concerns expressed by the Court of Appeal in Observation No. 2, the New Zealand refugee determination procedures were subsequently placed on a statutory footing by the Immigration Amendment Act 1999, s 40 which inserted a new Part VIA in the Immigration Act 1987.  The RSAA is now a statutory tribunal with the powers of a Commission of Inquiry. See s 129N and Schedule 3C, cl 7.
The commencement date for the new Part VIA was 1 October 1999.  While the provisions of the Refugee Convention have not (with one exception) been incorporated into New Zealand domestic law, s 129D requires that in carrying out their functions under Part VIA, refugee status officers and the RSAA are to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention.  The non-refoulement obligations contained in Article 32 and 33 have, however, been incorporated into domestic law by s 129X.  For an overview of the changes introduced by the Immigration Amendment Act 1999, see Haines, Immigration and Refugee Law: Recent Developments (August 1999).  This paper is to be found at the Reference page of this web site.

In the light of the changes made to the removal procedures by the Immigration Amendment Act 1999, the reference in the judgment of the Court of Appeal to s 63B of the Immigration Act 1987 should now be read as a reference to s 47 of the Act as amended.]

Judgment of the Court was delivered by

KEITH J

The issue and the proceedings

[1] Daniel Martin Butler, the appellant, claims that he is entitled to refugee status under the 1951 Convention Relating to the Status of Refugees as supplemented by its 1967 Protocol, 189 UNTS 150; 606 UNTS 267.  He contends, in terms of the Convention, that owing to well founded fear of being persecuted for reasons of political opinion he is outside the countries of his nationality (the United Kingdom of Great Britain and Northern Ireland, and the Republic of Ireland), and that, owing to that fear, he is unwilling to return to those countries.  His fears relate to death threats made against him by the Irish People's Liberation Organisation (IPLO) and to his relations with the Royal Ulster Constabulary (RUC).  He wishes to avoid being removed from New Zealand and returned to the United Kingdom.

[2] Officials of the New Zealand Immigration Service (NZIS) declined his application for refugee status and, in a decision given on 14 December 1992, the Refugee Status Appeals Authority (RSAA) dismissed his appeal from that decision.  He seeks review of the Authority's decision and, as formulated in the submissions made to us, an order requiring the Authority to consider the appeal afresh on a different basis from that which it is said to have adopted.  Robertson J heard the application for review, initially filed 4½ years earlier on 18 January 1993, on 18 July 1997 and dismissed the application in a judgment given on 29 July 1997.  He mentioned some of the reasons given by the parties for the inordinate delay in getting the case to trial.

[3] Mr Butler gave notice of appeal on 14 August 1997.  The only issues before us are matters of law, relating to the tests applied by the RSAA to Mr Butler's appeal.  For the reasons given in this judgment we do not consider that the .Authority erred in law and, accordingly, we dismiss the appeal.

A new case on appeal

[4] In the High Court phase of the proceedings Mr Butler also sought relief in respect of decisions taken by officials and the Minister of Immigration under the Immigration Act 1987 but these matters are no longer before us.  The case on appeal is distinct from that in the High Court in a second sense.  The grounds for the challenge to the Authority's decision as presented to us are markedly different from those argued below.

[5] The Crown, while not formally opposing the Court dealing with the new grounds, submits that we should, in deciding whether to exercise our discretion in the interests of justice to consider those fresh matters, consider certain cautionary propositions.  We do accept that it is unsatisfactory for an essentially new case to be mounted on appeal: the parties and the Court do not have advantage of the issues being refined through the first instance hearing and decision, with the consequence of the argument being presented in a more developed and considered way.  As well the cost and delay associated with an appeal might have been avoided had the new matters been raised and disposed of at first instance along with the other issues considered.  And, although it is not in issue here, different evidence might have been required or called to meet the new grounds.  The issue in this case is however a narrow one of law relating to the definition of "refugee" in the Convention and Protocol.  As well, the importance to the appellant and his family of the decision to execute (or not) the removal warrant which he faces and the possibIy grave consequences of that action have led us to consider the new grounds.

[6] The case has been argued on the basis of the 1951 Convention and the 1957 Protocol but Parliament did not give express effect to the Convention in the law of New Zealand either in 1960 when New Zealand acceded to it nor in 1973 when New Zealand acceded to the 1967 Protocol nor at any later time.  Rather, as explained later, the provisions of the Convention were incorporated into the executive machinery for considering applications for refugee status.  We come back to the absence of legislation at the end of the judgment.  In the meantime we proceed simply, on the basis of the treaty texts.

The definition of "refugee"

[7] The Convention and Protocol define "refugee" and then set out the status (or the rights and duties) of a refugee and regulate certain administrative matters.  At the heart of the Convention and this case is the definition of "refugee" in article 1.  We set out most of that article.  The emphasised words are those principally in issue.  The words in square brackets were deleted by the 1967 Protocol:

For the purposes of the present Convention, the term "refugee" shall apply to any person who:  ...

A (2) [As a result of events occurring before 1 January 1951 and] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence [as a result of such events], is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be Iacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which is a national.

...

C. This Convention shall cease to apply to any person falling under the terms of section A if:

(1) He has voluntarily re-availed himself of the protection of the country of his nationality, or

(2) Having lost his nationality, he has voluntarily reacquired it; or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.

...

D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

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

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

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

(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

[9] The substantive provisions of the 1951 Convention setting out the status of refugees begin with the obligations of refugees in article 2:

Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.

The Refugee Status Appeals Authority

[11] In early 1991 the RSAA was established by Cabinet decision with the power "to make a final determination on appeal from decisions of officers of the Refugee Status Section (RSS) of the New Zealand Immigration Service of claims of refugee status, that is, to determine whether persons are refugees within the meaning of Article 1, Section A(2) of the 1951 Convention ... as supplemented by the 1967 Protocol ...".

[12] The terms of reference in force at the relevant time provided that for the purposes of any appeal two members were to sit, with the possibility of a representative of the United Nations High Commissioner for Refugees (UNHCR) sitting as a non-voting participant.  In this case, in fact three members and the UNHCR representative sat.  Nothing was made of that fact.  A related role was that "A decision of the Authority shall be a decision of the members hearing an appeal.  Where members are unable to agree on a decision, the outcome shall be in favour of the claimant (that is, refugee status shall be granted)."

[13] The claimant was to be given at least 10 days notice of the hearing and the RSS was to be responsible for providing an independent interpreter if required.  The Authority's procedure included considering the written decision of officers of the RSS and any written material submitted by the claimant and the RSS, interviewing the claimant and considering any other evidence presented by the claimant who might be represented.  Officers of the RSS could give evidence if the cIaimant was interviewed and could be required by the Authority to obtain further information or carry out further investigations. Otherwise the Authority could regulate its procedures, receive such evidence and conduct its hearings in such manner as it thought fit.

[14] The Authority's decision on an appeal, together with the reasons for it, was to be put in writing and provided to the claimant.  The RSS was to inform the Minister of Immigration and the Minister of Foreign Affairs and Trade of the outcome of every appeal.

[15] Under the procedures approved by Cabinet on 17 December I990:

The Minister of Immigration agrees to be bound by the decisions of the RSAC in favour of the appellant in all but exceptional cases.  He would direct the Immigration Service to consider successful appellants for residence in line with current policy which provides for a grant of residence in all but exceptional cases.

The Authority's decision on any matter properly before it shall be final and there shall be no right of appeal or rehearing on that matter, and the Minister of Immigration agrees to be bound by the decision.

[18] There is no legislation establishing the RSSA, providing for its membership, its procedures, its functions and its powers, or creating rights of appeal against or review of its decisions.  The only reference to it in the statute book is its inclusion in the list of tribunals in respect of which legal aid may be granted, Legal Services Act 1991 s19(1)(j).  As already noted we return to that matter at the end of this judgment.

The facts

[19] We can state the facts briefly since review of the Authority's decision is sought solely on the basis of error of law.  The appellant was born in Belfast in 1951.  He is a citizen of both the United Kingdom and the Republic of Ireland.  In 1973 he was sentenced in Belfast to five years imprisonment for false imprisonment and possession of a firearm and in early 1991 again in Belfast to 18 months imprisonment for the suspicious possession of ammunition.  We were informed from the bar that he has recently sought a pardon in respect of the 1991 conviction.  In 1980 he married Collette Butler and they have two sons who are now 16 and 15.  While on bail pending appeal from his 1991 conviction he travelled to New Zealand with his older son and his de facto pregnant partner, Bernadette Daly, and on 31 May 1991 he was granted a three months visitors permit.  That grant was in breach of s7 of the Immigration Act under which no permit is to be granted to anyone who has been convicted at any time of any offence and has been sentenced to imprisonment for a term of five years or more or who within the preceding 10 years has been convicted of an offence and sentenced to a term of 12 months or more.  Mr Butler did not disclose those convictions and when the New Zealand Immigration Service discovered the facts about his convictions it advised the appellant of this, on 29 August 1991.  On the next day Mr Butler filed his application for refugee status.

[20] On 9 October 1991 the NZIS obtained a removal warrant from the Auckland District Court and undertook not to execute it until Mr Butler's refugee status was determined.  Two days later a daughter was born to Mr Butler and Ms Daly.  On 17 January 1992 Mrs Butler and their other son arrived in New Zealand and they too applied for refugee status.

[21] The refugee application was being processed throughout this period, with an interview being conducted and documentation and submissions being presented.  On 10 March 1992 the application was declined and Mr Butler appealed on the same day to the RSAA.  The appeal was heard over three days in May and June by three members of the Authority, along with a representative of the UNHCR participating as a non-voting member.  Mr Butler was represented by experienced counsel, and with his wife and their two sons gave evidence.  The appeal was dismissed on 14 December 1992 with Judge B 0 Nicholson giving his reasons and Dr J M Priestley giving his reasons with which Mr R P G Haines agreed.  The reasons differed on two matters, as will appear.

The decision of the RSAA

[22] Mr Butler's case before the RSAA was twofold.  First, he had a genuine fear of being murdered as an alleged informer by the IPLO.  According to a publication of a research group which was before the RSAA, the Irish Republican Socialist Party broke from the official Irish Republican Army in 1974.  It spawned a para military wing, the Irish National Liberation Army, later that year.  Following internal feuding and kilIings a further splinter group, the IPLO, had emerged by 1987, Research Institute for the Study of Conflict and Terrorism Northern Ireland : Reappraising Republican Violence - a special report (1991) 19. Secondly, he had a genuine fear of death and harassment from the Royal Ulster Constabulary (RUC) because of a ruse he used against them on the issue of acting as an informer.

[23] It is helpful in considering the way the RSAA decided those two claims to use the six step approach its members used in this case as in earlier ones.  The issues before us related to steps 3 and 4:

1. Is the appellant genuinely in fear?
2. Is the harm he fears of sufficient gravity to amount to persecution?
3. Is there a real chance that the appellant will suffer persecution if he returns to either of his countries of nationality?
4. WilI both the United Kingdom and the Republic of Ireland fail in their duty to protect the appellant from persecution?
5. Is the persecution feared for a Convention reason?
6. Is the appellant excluded from refugee status by the provisions of Article 1F of the Convention?

[25] They agreed that the feared harm did amount to persecution - step 2.

[26] They agreed as well that the persecution was for a Convention reason - "political opinion" - step 5 - and that Mr Butler was not excluded by article 1F - step 6.

[27] On steps 3 and 4 the members agreed that Mr Butler could be confined safely in prison in Northern Ireland (given that he had yet to serve the 18 months sentence) but that there was a real chance of persecution were he to stay in Northern Ireland after that.  They all considered however that there was no such real chance were he to go to Great Britain at the end of the sentence or, according to Dr Priestley and Haines (but not Judge Nicholson), to the Republic of Ireland.  That is to say, they all agreed that adequate protection was availabIe in the United Kingdom outside Northern Ireland.

The alleged errors of law

[28] The various findings of fact were not challenged before us.  Rather the attack was on the Authority's understanding of the law involved in the findings just summarised.  Mr Harrison QC (who did not appear in the High Court) submitted that if the Authority held, as it had, that the appellant had a well founded fear for Convention reasons in respect of part, but not all, of the country of nationality it must consider the reasonableness in all the circumstances of any resulting location to another part of the country.  As well, in a case involving family members like the present, the Authority in carrying out that reasonableness inquiry must have regard to rights in respect of the family as found in the Universal Declaration of Human Rights (UNGA Resn 217A(III)), the International Covenant on Civil and Political Rights (999 UNTS 171) and the Convention on the Rights of the Child (1993 NZTS No 3).  The second argument was based on Tavita v Minister of Immigration [1994] 2 NZLR 257 and later decisions of this Court.

[29] The submission was that the RSAA had not formulated those two tests for itself and had faiIed to apply them.  That, it was argued, was a reviewable error of law.  For reasons relating to (1) the process followed before the Authority, (2) the decisions given by its members, and (3) the interpretation of the definition we cannot accept that submission.  We consider those matters in relation to the two proposed tests.

(1)    The process followed before the Authority

[30] A person claiming refugee status has the burden of establishing the elements of the claim.  That rule should however not be applied mechanically.  Those making a decision which may put an individual's right to life at risk and courts reviewing any such decision have a special responsibility to see that the law is complied with, eg R v Home Secretary ex parte Bugdaycay [1987] AC 514, 531, 537.

[31] The evidence given and the submissions made to the Authority covered the whole of the United Kingdom and in particular what was referred to in the submissions as "internal flight".  (The RSAA prefers the expression "relocation", in part on the basis that the refugee status decisions look forward, while the expression "internal flight" contemplates alternative action that the claimants might have taken in the past instead of leaving their country of nationality.)  That evidence and submission was in response to "one of the major reasons" which the RSS gave for refusing the application:

Following his release from prison, Mr Butler may relocate himself and his family in any part of lreland, the British Isles or in a member country of the European Economic Community, if he is uncomfortable with the prospect of resuming life in Belfast.

The Iogic of the internal protection principle must, however, be recognized to flow from the absence of a need for asylum abroad.  It should be restricted in its application to persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful.  In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety, where the quality of internal protection fails to meet basic norms of civil, political and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.   James C Hathaway The Law of Refugee Status (1991) 134 (original emphasis)

[33] In a note to the second sentence of that passage, Professor Hathaway quotes the following paragraph from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:

The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality.  Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country.  In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.  (para 91, original emphasis; the passage is identical in the 1997 edition and is also quoted in a recent judgment by the English Court of Appeal, R v Home Secretary, ex parte Robinson, 11 July 1997, para 12, The Times 1 August 1997.)

[35] Counsel before the RSAA did not refer to that passage in her submissions.  Rather she went immediately from the quotation from Professor Hathaway to the reasons for Mr Butler's contention that he did not have the option of internal flight either within Ireland or within the United Kingdom:

(1) he would not be able to obtain meaningful protection from the IPLO anywhere else in the United Kingdom

(2) a return to Ireland or the United Kingdom would lead to his immediate arrest and imprisonment in Ireland (perhaps that should read Northern Ireland) and

(3) he was not guaranteed entry to Britain, given the power of the United Kingdom Home Secretary to exclude persons suspected of links with terrorists.

[37] To return to the alleged errors of law, the appellant's submission to the RSAA did not go beyond the specified issues of protection and exclusion to any wider issues of the unreasonableness or harshness of relocation.  Nor did the evidence.  All that Mr Harrison could refer us to beyond those two matters was evidence relating to the quality of life and family circumstances, but that evidence was not directed either to any unreasonableness or harshness element or (to refer to the second alleged error of law) to any international standard relating to the family in the definition of refugee as it was to be applied by the Authority.  He accepted that the appellant's case before the Authority was not directed at any second element of reasonableness, the reason being, he said in his reply, that there was no such second element established in the law applied by the RSAA at the time of its 1992 hearing and decision.

[38] We later consider one aspect of that submission - the developing interpretation of the definition.  At this stage we conclude that given the way the case was presented to the RSAA it cannot be said that it committed an error of law in not separately addressing a distinct reasonableness element.  No such element was presented to it as arising from the facts.  Indeed so far as we understand the facts it would have been very difficult for the appellant to have done that.  This is not the kind of case when either the law or the factual situation before the Authority requires it of its own motion to take up any such additional element; see the statements to similar effect of BIack CJ and Whitlam J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, 270-271,280 FCA.

[39] It cannot be an error of law for a tribunal considering a matter (here location) which is properly before it to fail to rule on some particular aspect of that matter if the particular aspect is not referred to by the interested party and if it does not stand out as requiring decision.

[40] That in itself is a sufficient basis for dismissing the appeal, but we consider as well the other two reasons mentioned.

(2)    The decisions of the members of the RSAA

[41] Judge Nicholson in considering the third 'and fourth matters in his list - the real chance of persecution if Mr Butler returned, and the likelihood of failure by the countries of nationality in their duty of protection - concluded his discussion of the former in relation to the United Kingdom in this way:

In summary on the third issue I find that the appellant can safely be returned to a Northern Ireland prison to serve his sentence but that if he were to attempt to live in Northern Ireland upon his release from prison, there is a real chance of his being killed by the IPLO.  However, the appellant can safely relocate within the United Kingdom by taking up residence in Great Britain upon his release.  I cannot accept that it would be unreasonable to expect him to do so.  His fear of persecution is therefore not well-founded. (emphasis added)

He then found in terms of the fourth matter that Mr Butler could obtain the protection of the United Kingdom if he lived in Great Britain.

Sometimes, of course, the inability of the state to provide adequate protection may be limited to a certain locality or region (the protection available to victims of terrorist groups in the Punjab springs to mind).  In such instances, however, refugee status is not available if adequate protection can reasonably be accessed elsewhere in the state. (emphasis added)

[43] It is true that neither decision treats "reasonableness in all the circumstances" as a distinct matter but, to repeat, that was not put to the Authority and, to anticipate the next part of his judgrnent, such a reading may not have been required in any event.

[44] The fact is that the members of the Authority did incorporate the notion of reasonableness into their tests relating to relocation as that matter arose from the definition of "refugee".

(3) The role of reasonableness in the relocation element of the definition of "refugee"

[45] Mr Harrison put a 1995 decision of the Authority at the centre of his argument on the interpretation of the definition of "refugee" as it relates to relocation.  According to the Authority in that case relocation turned on two issues:

1. Can the individual genuinely access domestic protection which is meaningful?.

2. Is it reasonable, in all the circumstances, to expect the individual to relocate?

[46] An application for review on the ground that a body has made an error of law would seem by its very nature to require that the assessment be made by reference to the law of the time (as compared with an appeal by way of rehearing where the evolving law can be involved), but such an approach in the present context might be thought to be technical.  Accordingly we prefer to address the matter of interpretation directly (while recalling the conclusions that we have reached under the two preceding headings).

[47] Central to the definition of "refugee" is the basic concept of protection - the protection accorded (or not) by the country of nationality or, for those who are stateless, the country of habitual residence.  If there is a real chance that those countries will not provide protection, the world community is to provide surrogate protection either through other countries or through international bodies.  So both paragraphs of article 1A(2) define refugees in part by reference to their ability or willingness to avail themselves of the protection of their country of nationality or of habitual residence.  Similarly the reasons for the cessation of refugee protection in article 1C are based on the protection of a country becoming available.  Article 1E is to the same effect.  And article 1D as well turns on protection or assistance being available from a United Nations body other than the UNHCR.  The Supreme Court of Canada recently stated the rationale underlying international refugee protection in this way in a case involving a claim relating to feared persecution by the Irish National Liberation Army:

International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national.  It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations.  The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.  For this reason, James Hathaway refers to the refugee scheme as "surrogate or substitute protection", activated only upon failure of national protection: see The Law of Refugee Status (1991), at p135. (Canada (Attorney-General) v Ward [1993] 2 SCR 689, 709)

[49] The various references to and tests for "reasonableness" or "undue harshness" (a test stated by Linden JA in Thirumavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589, 598 FCA) must be seen in context or, to borrow Brooke LJ's metaphor, "against the backcloth that the issue is whether the claimant is entitled to the status of refugee", R v Home Secretary, ex parte Robinson para 18.  It is not a stand alone test, authorising an unconfined inquiry into all the social, economic and political circumstances of the application including the circumstances of members of the family.  The test is for instance sharply different from the humanitarian tests provided for in the Immigration Act ss63B and 105.  It does not in particular range widely over the rights and interests in respect of the family: the refugee inquiry is narrowly focused on the persecution and protection of the particular claimant.  In no case to which we were referred were international obligations in respect of the family seen as being linked to the definition of refugee.  While family circumstances might be relevant to the reasonableness element, there is no basis for such a link on the facts of the present case.  We note as well that New Zealand had not become bound by the Convention on the Rights of the Child at the time of the decision of the Authority.

[50] Rather than being seen as free standing (as more recent decisions of the Authority appear to suggest), the reasonableness test must be related to the primary obligation of the country of nationality to protect the claimant.  To repeat what Professor Hathaway said in the passage relating to relocation quoted earIier, meaningfuI national state protection which can be genuineIy accessed requires provision of basic norms of civil, political and socio-economic rights.  To the same effect Linden JA in the Canadian case cited above, [1994] 1 FC at 598-99, stresses that it is not a matter of a claimant's convenience or of the attractiveness of the place of relocation.  More must be shown.  The reasonableness element must be tied back to the definition of "refugee" set out in the Convention and to the Convention's purposes of originaI protection or surrogate protection for the avoidance of persecution. The relocation element is inherent in the definition; it is not distinct.  The question is whether, having regard to those purposes, it is unreasonable in a relocation case to require claimants to avail themselves of the available protection of the country of nationality.

[51] It follows from the above discussion that we see no error of law in the Authority's determination in the present case.  Its members did include a reasonableness element in their decisions that Mr Butler was not a refugee within article 1A(2) of the Convention, in a manner which was appropriate in the circumstances of the appeal.  As well, there was no basis arising from those circumstances and the definition of "refugee" for an argument that the rights and interests of the family as referred to in the relevant international texts had to be considered.

The reviewability of decisions of the RSAA

[52] The parties were in agreement both in the High Court and in this Court that the Courts have the power to review determinations of the RSAA for error of law.  Accordingly their submissions dealt with the matter only briefly.  For instance the appellant's written submission said that

The nature of the functions [the RSAA] performs and the fact that it has been established as part of New Zealand's compliance with its obligations under international law plainly make it open to judicial review by way of the prerogative writs (under Part VII of the High Court Rules); see Singh v Refugee Status Appeals Authority [1994] NZAR 193, 212 [where RSAA decisions were held to be subject to judicial review for error of law]; contrast Burt v Governor-General [1992] 3 NZLR 672 [about the prerogative of mercy in respect of a criminal conviction].

[54] Because the issue was not fully argued and because of the conclusions we have reached on the substance, we do not express a final view on it.  We do no more than note the following matters:

(1) The non statutory powers exercised in the cases mentioned (with the exception of the Singh case) appear to have had legal effect under the law of the country in question - for instance by way of the exercise of the prerogative to grant a pardon, or of the power to grant compensation, or to recognise (or not) the bargaining power of a trade union, or to approve or not a proposed commercial transaction for stock exchange purposes; by contrast, as noted earlier in the judgment, the RSAA determination is not in law effective in respect of immigration status;

(2) While the entering into a treaty is the exercise of a prerogative power and some prerogative powers are subject to judicial review (although in respect of treaty making see R v Foreign Secretary, ex parte Rees-Mogg [1994] QB 552) the carrying out of its obligations might or might not involve prerogative powers; legislative or general common law powers might be used; we note that while s40 of the Immigration Act 1964 expressly saved the prerogative there is no such provision in the 1987 Act;

(3) If the courts can consider applications for review in cases such as this the basic principle that the executive cannot change the law by entering into treaties in the absence of securing any necessary legislative change would appear to be avoided, eg New Zealand Airline Pilots Association Inc v Attorney-General (CA300) and 301/96, 16 June 1997) 18 referring to Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347.

[56] The facts also suggest the value of legislative attention, especially the changes in them since 1960 when New Zealand acceded to the 1951 Convention.  The absence of legislative action at that time is perhaps to be explained first by the fact that the only people the Convention covered were identified through the processes of the UN High Commissioner for Refugees largely followed in refugee camps in Europe by reference to events that had occurred at least 10 years earlier.  As well, the means of travel to New Zealand then available reduced the prospect of disputes about refugee status arising in New Zealand.  Finally, the substantive fights to which duly admitted refugees were entitled under the Convention were presumably considered as already being guaranteed under the law of New Zealand (subject to one reservation which New Zealand made).

[57] Refugees continue to come to New Zealand under such resettlement programmes (the quota since 1987 has been 800 per year).  Since the UNHCR recognises their status no New Zealand procedure is needed to deal with them.  But so far as refugee applications being made from within New Zealand are concerned, the situation has changed markedly since 1960 with, first, the removal (in 1973) of the
temporal limit on those who might claim refugee status, second, the large increases in the numbers of refugees including many from countries much closer to New Zealand, third, the much greater availability of means of traveI, especially by air, to New Zealand, and, fourth, the great increase in visitors to New Zealand (for many appIicants for refugee status arrived earlier on regular permits as visitors or students). Issues about refugee status now arise frequently within New Zealand.  The two years may not be typical, but in 1991 when Mr Butler arrived and in 1992 when his application was considered and appeal heard, 1977 refugee status applications were made in New Zealand, R P G Haines The Legal Condition of Refugees in New Zealand (1995) 4.  A Cabinet paper of December 1991 recorded that about 100 applications were being lodged each month (about a fifty-fold increase since 1987 when only 27 had been made in the whole year) and that nearly all the fifty percent which were declined went to the RSAA on appeal. "For the foreseeable future the Authority will need to process some 60 cases each month ...".

[58] Legislation would not only clarify and regularise the position in respect of review or appeal.  It would also (as with the statutory immigration tribunals) provide binding rules relating to the appointment, status, tenure and protection of the members of the tribunal; their powers for instance in respect of the calling of evidence; the protection of parties and witnesses; the status of the RSS within the process; the public or private nature of its procedure; time limits and other aspects of the tribunal's procedure; and its independent servicing.  There are also problems of the type indicated in the judgment of this Court given during the Gulf War in D v Minister of Immigration [1991] 2 NZLR 673 and addressed, although not expressly by reference to refugees, by Parliament later that year, Immigration Amendment Act 1991 s38.  Legislation might in addition provide for the cessation of refugee status.  The residence permit provisions of the Act cannot be matched with that aspect of the Convention definition.

[59] We have no reason at all to doubt that the Authority has exercised its functions with independence and judgment notwithstanding its lack of legislative basis.  But if there is good reason for the other immigration tribunals to be established by legislation there is at least equal reason in the case of the Authority.  Parliament went part of the way in 1991 when in the Legal Services Act 1991 it recognised the Authority's particular significance, compared with other immigration tribunals in respect of which legal aid is not in general available, s19(1)(j) and (4A).  The distinction it drew then might be seen as emphasising the obligations which New Zealand has under the Convention and Protocol, matters to which Mr W M Wilson QC referred in his Report to the Rt Hon W F Birch, Minister of Immigration, on the Processes of Refugee Status Determination (29 April 1992) 18-22 in which he recommended legislation.

Result

[60] For the reasons given, the appeal is dismissed.  In the circumstances we make no order for costs.
 

Solicitors for the appellant: Recordon & Co (Auckland)
Solicitors for the first respondent: Crown Law Office (Wellington)