Preface

CONTENTS

1. Introduction

2. Refugee Status Determination in New Zealand

a) Background , Procedure and Legitimacy

b) New Zealand Refugee Determination with respect to Article 1F

3. The RDS Proceedings

A. The Claimant’s Story

i) Sri Lanka Background

ii) Individual Detail

B. Refugee Status Determination

i) The Inclusion Clause of the Refugee Convention

ii) The Exclusion Clause of the Refugee Convention

C. Judicial Review Proceedings at the High Court

i) Political or Non-Political?

ii) Serious Crime?

iii) Balancing?

a) Academic and UNHCR Support for the Balancing Exercise

b) Judicial Consideration of the Balancing Exercise in Canada

c) Decision Dictated by Context, Policy and Precedent

D. Appeal to the Court of Appeal

4. Critique: Relevant Jurisprudence and Comment ignored by the Court

5. A Brief Comment on the Convention Against Torture

6. Conclusion

1. INTRODUCTION

New Zealand acceded to the 1951 Geneva Convention Relating to the Status of Refugees (1) on 30th June 1960, and to the 1967 Protocol Relating to the Status of Refugees on 6th August 1973.(2) We are therefore under an international obligation to determine the status of refugee claimants, according to the definition of the term refugee in Article 1 of the Convention, and, should an asylum seeker be declared a refugee according to this determination, to accord him or her the benefit of the substantive provisions, Articles 2 - 34 inclusive, of the Convention.

Foremost amongst these beneficial requirements is the non-refoulement provision, which proscribes returning a refugee to persecution. Article 33(1) states:

No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever

to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The right to non-refoulement espoused in Article 33, has, arguably attracted the status of a customary rule of International Law. In addition to constituting the backbone of the Refugee Convention, similar proscriptions on return where persecution or cruel punishment is a possibility include: Article 3 of the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment 1984; Article 3 of the European Convention on Human Rights; and Article 14(1) of the Universal Declaration of Human Rights 1948.

These substantive protections, and the development in extradition law to extend the political offence exception to cover politically motivated prosecutions, have encouraged the emergence of a principle that the sending state should be responsible for anticipating and protecting the individual - whether refugee claimant or fugitive offender - where persecution or torture is likely upon return. For those who do not have the benefit of State recognition and protection of fundamental human rights, the principle of non-refoulement can literally mean the difference between life and death.

Article 33, in common with the other substantive provisions of the Refugee Convention, applies to refugees. Article 1 defines the parameters of which asylum- seekers are or are not refugees. Generally, and for the purposes of this paper, parts A(2) and F are the most significant clauses of the definition article. Article 1A(2), as amended by the 1967 Protocol, sets the inclusion criteria. Article 1F, the exclusion clause, 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 act contrary to the purposes and principles of the United Nations.

The concern of the drafters of the Convention, in the immediate post-war years, was to ensure that contracting states were not bound to accept persons deemed not worthy of international protection. The primary impetus of this concern was the possibility that war criminals from the recently defeated axis powers should be precluded from asylum, hence the mandatory language in Article 1F.(3)

Paragraph (b) excludes those presumed to have committed a 'serious non-political crime’. Previous documents related to refugee status(4) connected this exception to crimes subject to extradition treaties. Commentators and some jurisprudence have sought, on this basis, to limit the application of this provision to serious crimes, such as murder, rape, armed robbery. Goodwin-Gill notes that Grahl-Madsen(5) perceived the object of exclusion as ensuring that international instruments are not abused by fugitives from justice, or interfere with extradition law.

The relationship between Article 1F(b) and the 'political offender’ exception in extradition law is important due the relative scarcity of judicial determination of the scope of the exclusion. Appellate level refugee cases on this issue have largely been decided with reference to extradition jurisprudence, particularly in regard to the notion of 'non-political’. Reference to extraditable crimes, has also influenced the extent of 'serious crime’, as noted above.(6)

The most contested issue posed by Article 1F(b) is whether its application requires that the seriousness of the crime presumed committed is weighed against the gravity of the persecution feared upon return to the country of origin. This is particularly contentious where the crime committed is related to the Convention ground for which persecution is feared, but not sufficiently connected to the political purpose to be considered a political offence.

This question has created a notable divide with academic commentators, the UN Handbook,(7) and some jurisprudence in favour of a balancing exercise that would preclude refoulement of bona fide refugees whose likelihood of persecution outweighed their criminal character, on one side of the debate. Most Courts, however, especially the Canadian jurisprudence, have held in favour of a liberal interpretation of Article 1F(b), resulting in the exclusion of claimants, irrespective of the gravity of consequences faced upon return.

This approach, restricting the scope of the Refugee Convention, appears at odds with its overtly humanitarian purpose. Declarations of fundamental human rights, such as the Convention accords to refugees, in the famous words of Lord Wilberforce

…call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,’ suitable to give individuals the full measure of the fundamental rights and freedoms referred to. (8)

The failure of Courts in common law jurisdictions to approach the exclusion clauses of the Convention with the generosity of spirit advocated above, is perhaps partially explained by the caliber of claimants before them. Terrorists have, at the end of the twentieth century, replaced fascist war criminals as the primary concern of decision- makers, encouraging a liberal approach to exclusion. The legitimate desire to condemn indiscriminate acts of violence has seemingly blinded judicial eyes to notions of refuge and asylum where a hint of criminal activity is involved.

It is against this background that a Sri Lankan refugee claimant applied for refugee status; appealed to the Refugee Status Appeals Authority; issued judicial review proceedings of the Authority’s decision; and appealed the decision of the High Court declining to grant judicial review to the Court of Appeal. The determination(9), case(10), and appeal(11)have changed, perhaps unalterably, New Zealand jurisprudence with respect to the exclusion clause of the Refugee Convention.

Without the excuse of desire to condemn indiscriminate violence, the decisions reached in the RDS proceedings have ignored the generous interpretation called for by the Convention. Through adoption of a liberal approach to Article 1F(b), and hence the rejection of a balancing requirement, the decisions refused the grant of refugee status - and the benefit of the substantive provision of the Convention - to an otherwise bon fide refugee for commission of a quasi-political, arguably not-serious crime.

2. REFUGEE STATUS DETERMINATION IN NEW ZEALAND

a)    Background, Procedure and Legitimacy

Despite early adherence to the Refugee Convention, the arrival of, and subsequent development of procedures to process, spontaneous refugees, has, in New Zealand really only been a feature of the last decade. Twenty seven aspirant refugees lodged applications for refugee status in 1987(12), 1,528 in 1997.(13)

Refugee determination since 1987 initially occurred in a jurisprudential vacuum. Until 1991, New Zealand Courts had only ever considered one refugee case.(14) Although since 1990 several cases have proceeded to Court of Appeal level, judicial consideration of refugee issues in this country remains the exception, hence the reliance on overseas, especially Canadian, jurisprudence.

The current procedures - initial determination by the Refugee Status Branch(15) (RSB) of the New Zealand Immigration Service (NZIS) with appeal by right as a de novo inquiry to the Refugee Status Appeals Authority (RSAA) - were established in 1991. Determination procedure is currently governed by the Terms of Reference issued by NZIS in August 1993.

Unlike the systems in place in other common law jurisdictions, New Zealand’s entire refugee regime is non-statutory. The procedures established, and the operational Terms of Reference, are exercises of the prerogative power of the executive. This aspect of the determination system, although held to be constitutionally valid,(16) has been repeatedly criticised, both by commentators, and by the Courts.(17)

…the entire refugee regime in New Zealand is extra-statutory and administratively based. It can be changed overnight. The usual inhibitors to change such as formal incorporation of the Convention into domestic law or a legislative structure which requires formal amendment are entirely absent.(18)

Refugee determination is governed by the current Terms of Reference. The Authority therefore is under no obligation to take into account either humanitarian considerations,(19) or international obligations other than the Refugee Convention and Protocol. However, with respect to the RSB, the NZIS Operational Manual states:

New Zealand is a signatory to a number of United Nations conventions, protocols, declarations and documents which affect both the recognition and treatment of refugees. As such, New Zealand is obliged to take general cognisance of them in determining refugee status.(20)

Appeal by right to the Authority, however, presumably precludes judicial review(21) of failure by the RSB to follow policy, which in any case, is not mandatory.(22)

b)    New Zealand Refugee Determination Jurisprudence with respect to Article 1F

Although effectively ignored in the RDS determination and review proceedings, the Authority has previously considered the ambit and application of Article 1F of the Refugee Convention.

Paragraph (a) was the focus of Refugee Appeal No. 2511/95 Re GSG,(23) which resulted in review proceedings in the High Court: Sequeiros Garate v the Refugee Status Appeals Authority and the Minister of Immigration.(24) The leading case with respect to paragraph (c) of Article 1F is Refugee Appeal No. 2338/94 Re ARS,(25) which adopted Canadian jurisprudence, holding drug trafficking as within the scope of 'acts contrary to the purposes of the United Nations’.

Article 1F(b) has been considered at length in the leading decision, at least until RDS proceedings, of Refugee Appeal No. 29/91 Re SK.(26) Although primarily concerned with the definition of non-political, for the purposes of exclusion(27), the Authority adopted(28) paragraph 156 of the UNHCR Handbook(29) which advocates weighing the seriousness of the crime against the gravity of persecution feared - the balancing exercise ultimately rejected by the Court of Appeal.(30)

In Refugee Appeal No. 1222/93 Re KN,(31) which followed Re SK, the RSAA declined to apply the exclusion clause to the claimant, a Iranian Kurd who had been involved in a bombing operation which killed three members of the Iranian military. The Authority stated:

Also to be taken into account in this context is…that the risks associated with exclusion

from refugee status must not outweigh the harm that would be done by returning the claimant to face prosecution or punishment, i.e. the heinous nature of the persecution anticipated counters the logic of return.(32)

The decisions of the Authority in Refugee Appeal No. 913/92 Re AS(33) and Refugee Appeal No. 1064/93 Re HS(34) are also extremely relevant to the application of Article 1F(b) exclusion despite lack of judicial consideration in the RDS proceedings. Both cases relate to Sikh claimants associated with the Khalistan Commando Force (KCF) who had well-founded grounds to fear persecution, including probable torture, by Indian security forces if returned to the Punjab. Both decisions are stressed by the Authority to be limited to their particular facts.

In the former case, noting that the drafters of the Convention intended to exclude “…common criminals who would be a nuisance or a threat to a receiving country(35), the Authority balanced the high risk of detention, torture and/or summary execution to the claimant against the support given to a terrorist organisation. Included in this exercise were the fact that the claimant was only a supporter and not a perpetrator of KCF atrocities and his youth and naiveté. The Authority concluded:

On the basis of these findings, the Authority decision is that the appellant has not committed a serious crime of the type to which Article 1F(b) properly applies.(36)

In Re HS, which also concerned a supporter of the KCF, introducing the issues involved, the RSAA stated:

At the end of the day the Authority must balance the illegal activities of the appellant against the harm that might result if he were to be returned to India.(37)

After reviewing the facts and the claimant’s satisfaction of the inclusion criteria, the Authority concluded, taking into account: the level of persecution feared; the claimant’s lack of education and failure to appreciate the extent of violence perpetrated by the KCF; and the fact that his participation was limited to storing and transportation of ammunition and arms, that in respect to this case, the provisions of Article 1F(b) did not apply.(38)

3. THE RDS PROCEEDINGS

A. The Claimant’s Story

i) Sri Lanka Background:

Since 1983 Sri Lanka, once considered a model of development and stability for post-colonial South and Southeast Asia, has been in a virtually constant state of civil unrest. Until 1987 hostilities were primarily associated with the ethnic conflict centered in the north and east of the country between the military and Tamil separatist groups, most notably the Liberation Tigers of Tamil Eelam (LTTE), fighting for an autonomous Tamil homeland. Partly in response to the intervention of the Indian Peace Keeping Force (IPKF) in 1987, the conflict spread to the south of the island with the emergence of the Janantha Vimukthi Peramuna (JVP).

The political aims of the JVP included the promotion of extreme Sinhalese chauvinism combined with an ultra-nationalist-Buddhist ideological base. As such they favoured a violent overthrow of the government who were viewed as conceding too much to the various Tamil groups and allowing de facto Indian control of the north and east, through the IPKF intervention between 1987 and 1990. Contemporaneously with escalation of the fighting in the North as the IPKF turned on both Sri Lankan forces and the LTTE, the JVP gained effective control of much the rural areas south of Colombo, through indiscriminate killings of people perceived to be officials or supporters of the Jayawardene government, and Tamils. In 1988 the JVP campaign to destabilise the government came very close to success as fighting neared the outskirts of Colombo.

The JVP gained much support from Sinhalese youth, underemployed owing to the stagnant wartime economy, resentful of the government’s perceived inability to quash the ongoing civil war in the north and east, and often encouraged by Buddhist clergy, who favoured a larger role for Buddhism in the country’s constitution and, as such, were opposed to any concessions being made to Hindu Tamils. In areas under their control during the 1988 insurgency, the JVP gained a well-earned reputation for particularly vicious behaviour towards anyone opposed to the movement. The Sri Lankan military, under siege from all sides, generally responded in similar manner with respect to suspected JVP sympathizers.

From mid-1989 onwards, as the military regained effective control of the south and the threat of a successful JVP-sponsored uprising diminished, widespread human rights violations were carried out by the armed forces against anyone whom they suspected of aiding, or having sympathized with, the JVP. Often suspected members were executed and their bodies strung from lampposts along main roads as a warning and effective tool of intimidation. Figures made available to the Authority estimating up to 40,000 extra-judicial deaths of former JVP members and supporters are considered by some observers to be conservative estimates.

The suppression of the JVP during 1989-1991 was characterised by considerable human rights abuses by both the security forces and pro-Government vigilante groups. Tens of thousands are believed to have been killed or “disappeared” during these years. Death squads, often condoned by the Government, and even alleged to be made up in some instances of military and police personal in civilian clothes, operated without impunity.(39)

It is against this background that RDS came to New Zealand and applied for refugee status, initially just days after his arrival in March 1989, and subsequently, on significantly different grounds due to changed circumstances in Sri Lanka, at the end of 1994.

ii) Individual Detail

As the RSAA accepted the appellant’s version of events was credible, consistent with previous accounts, in accordance with country information and supported by authentic corroborative evidence, it will be briefly restated.

The appellant joined the JVP through friends from college in 1987, initially for largely social motives, but within the organisation underwent some form of political awakening to their ideas and aims. His role within the organisation was confined to attending frequent meetings, distributing propaganda and enforcing curfews on local shops as part of the JVP’s destabilisation programme. He was however aware that the JVP was considered a terrorist organisation and that observation of the curfews and acquiescence to extortion demands by local shopkeepers was due to fear rather than genuine political support.

On one occasion, at the height of the JVP uprising, despite his stated misgivings, the appellant in a group with up to eight others, went to 35 - 40 shops and forcibly solicited the shops’ takings, for JVP funding, threatening retribution to those who did not immediately comply. The appellant stated that they were on heroin, and that the money gained (about NZ$2,500) was mostly, if not entirely, spent on drugs and other personal costs. In mitigation, the appellant claimed that he felt compelled to participate, and that he did not actually make any of the threats, but in fact mostly stood watch outside the shops. It is whether this incident constitutes a serious non-political crime, therefore warranting the application of Article 1F(b) that was at the heart of the case.

Subsequent to this incident, two friends who had also questioned the appropriateness of such 'fundraising’ were found shot dead in a park. Fears that the same fate could await him and concern that the shopkeepers would recognise him and attempt revenge, prompted him to confide in his parents, who initially sent him out of Colombo, and then to Thailand. After several months in Thailand the appellant traveled to New Zealand.

B. Refugee Status Determination

The appellant’s first application for refugee status, made upon arrival in New Zealand in March 1989 was based on fear of persecution at the hands of, primarily, the JVP, for political opinion implicit in his withdrawal from the organisation and departure from Sri Lanka. Although the application was declined by the Interdepartmental Committee on Refugees (ICOR) and the Ministers of External Relations and Trade, and Immigration, he was not removed from New Zealand owing to Government policy not to remove Sri Lankan nationals during the period of instability in their country of origin.

A second application to the Refugee Services Branch (RSB) made in December 1994 was declined on the grounds that the second claim was not based on significantly different grounds from the initial application. The RSB advised of the automatic right of appeal to the Refugee Status Appeals Authority (RSAA).

Although the August 1993 Terms of Reference appear to preclude jurisdiction to consider appeals where the applicant has been considered by the ICOR, the Authority have previously concluded that where the RSB has treated an application as de novo and advised of a right of appeal to the RSAA, the case is to be dealt with on the same basis as second applications where the first has been considered since the current procedures were established.(40) The grounds for considering a second application, outlined in the Terms of Reference at paragraph 3, require that since the original determination, circumstances in the applicant’s country of origin have changed to such an extent that the current claim is based on significantly different grounds than the first.(41)

The Authority thus initially had to conclude whether in fact, the situation in Sri Lanka had changed sufficiently between the appellant’s first and second applications for refugee status so that it could be said that his subsequent claim was based on significantly different grounds. Almost a third of the RSAA’s decision(42) is directed to the determination of this issue.

In summary, the authority concluded that there was evidence of a significant change in circumstances. This evidence included information concerning the numbers of extra-judicial killings of former-JVP members, correspondence from the appellant’s father and more detailed evidence from the appellant himself. Aiding this conclusion was the fact that the persecution now feared by RDS was from the police and/or armed forces rather than the JVP which had been effectively suppressed.

i) The Inclusion Clause of the Refugee Convention

Unlike several determinations and decisions in other jurisdictions(43), the Authority followed the logical progression of Article 1 of the Refugee Convention by initially considering the inclusion clause, Article 1A(2) before ruling on the applicability of the exclusion provisions.

Article 1A(2) provides that the term “refugee” shall apply to any person who -

….owing to a well-founded fear of being persecuted for reasons of race, religion,

nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…

A person to whom this definition applies, is therefore, subject to cessation or exclusion under paragraphs C - F of Article 1, prima facie, a refugee and thus has the benefit of the substantive provisions of the Convention contained in Articles 3 - 34.

The authority assessed whether RDS was prima facie a refugee by reference to the test formulated in their recent leading decision of Refugee Appeal No. 70074/96 Re ELLM(44). In that case, following appellate level Australian and English jurisprudence,(45) the RSAA held that the issues to be considered are:

The use of the phrase 'real chance’, whilst reflecting the primacy of a more restrictive determination than the subjective notion of fear, requires something less than a balance of probabilities standard of proof. The essence of the determination is whether - based on past persecution, current information on the situation prevailing in the country of origin, and the status of the appellant - the appellant’s subjective fear of persecution is objectively justified.

The Authority thus had to assess whether there was a real chance of RDS, as a former JVP member, being persecuted by Sri Lankan security forces if returned to Sri Lanka. A previous decision(47) involving a former JVP sympathizer was distinguished on the basis that the appellant in the case at hand had a higher level of involvement and profile within the JVP. Recent country information considered, stated that while JVP supporters were no longer the focus of systematic human rights abuses by government security forces, many of those previously incarcerated or “disappeared” remain so, while the perpetrators of the abuses continue to occupy positions of power. Also referred to was credible evidence of a persistent interest in the appellant by the police, and the fact that the criminal process had been illegitimately used to detain JVP members for political purposes.(48)

In conclusion, the Authority, applying the benefit of the doubt to RDS, answered the first part of the above test affirmatively.

While on the one hand there has been an improvement in the human rights situation in Sri
Lanka, on the other hand we have accepted that the appellant is still wanted by the police for JVP activities and, given the history of human rights abuses in Sri Lanka, we are unable to discount the possibility of a real chance of his being treated in a extra-judicial manner, tortured or otherwise persecuted at the hands of the police.(49)

The Authority then considered the second limb of the Re ELLM(50) test - whether the persecution feared is for a Convention reason. As the JVP insurrection was overtly political, its principal aim being the overthrow of the Jayawardene government, the Authority held that the potential persecution by the police and/or armed forces, feared by RDS would result from political opinion held or imputed to him.(51) Concluding that the appellant fulfilled the criteria set out in the inclusion clause, Article 1A(2) of the Refugee Convention, the Authority turned to Article 1F(b).

ii) The Exclusion Clause of the Refugee Convention

Paragraph (b) of Article 1F(52) requires that four conditions be satisfied:

Before the Authority, only the 'serious’ and non-political’ elements of Article 1F(b) were at issue as the appellant had detailed his involvement in the incident - extortion of Colombo shopkeepers, ostensibly to raise funds for the JVP - which the Authority had found credible.

The condition that the crime committed was 'serious’ was dealt with summarily by the RSAA, stating:

…it is clear that 35-40 robberies as outlined (where monies were taken under threat of
violence) amount to “serious crime or crimes within the meaning of Article 1F(b).(54)

The fact that RDS had not been involved in the actual making of the demands or seizing money was held to be irrelevant and not affecting his culpability. It is this finding of serious crime that was contested at both High Court and Court of Appeal in judicial review proceedings.

In determining whether the crime committed could be described as 'non-political’ the Authority, advocating a balancing exercise, referred to its earlier decision in Re KN.(55) This case, discussed above, followed the US Court of Appeals, Ninth Circuit decision of McMullen v INS(56) which required proportionality between the crime committed and the political objective sought to be achieved, and formulated an approach involving looking at the nature, purpose and motivation of the offence and the causal link between the offense and the objective.

McMullen concerned an appeal by a former member of the Provisional Irish Republican Army who had participated in indiscriminate bombing campaigns. In short a terrorist. The Court was therefore concerned that crimes of an atrocious nature were not considered political and hence the emphasis on proportionality. Its reasoning, therefore may not be of such relevance when classifying lesser crimes

…a crime should be considered a serious non-political crime if the act is disproportionate
to the objective, or if it is 'of an atrocious or barbarous nature’.(57)

The Authority held that the crimes committed by RDS was non-political. They were influenced primarily by the fact that the money taken off the shopkeepers had largely been spent on drugs and other personal costs of those involved, and that the appellant could not state with certainty if any of the money had actually reached the JVP.

This was not a case whereby, for example, a military target was selected by persons with
a deeply committed political cause, desirous of furthering that cause. Rather it is a situation where a number of members of a terrorist group robbed local shopkeepers (clearly unconnected with any governing powers but simply innocent parties), and then apparently spent the monies taken on themselves. The appellant’s evidence did not suggest that these crimes had been committed in furtherance of their political struggle. Such crimes cannot be held to be political.(58)

Before concluding that RDS, despite satisfying the inclusion clause, was excluded from the protection of the Refugee Convention through application of Article 1F(b), the Authority briefly considered whether RDS was compelled to participate in the above activities, or the fact of his having been under the influence of heroin could mitigate against exclusion. On the basis that the appellant willingly became involved with the JVP, was not addicted to heroin, and after the deaths of his friends gained the courage to leave the organisation, it was held that neither fact could affect the conclusion.

C.JUDICIAL REVIEW PROCEEDINGS AT THE HIGH COURT(59)

The application for judicial review to the High Court made by RDS sought an order setting aside the decision of the RSAA on the grounds of, inter alia, mistake of fact, unreasonableness, failure to take into account relevant considerations, or that irrelevant considerations were taken into account.

In particular, it is alleged that in relation to the serious non-political crime found, the
plaintiff acted under compulsion, was a party only, the crime itself was not serious and was political, and in any event that a balancing exercise was required to take into account the underlying the underlying humanitarian purposes of the Convention in respect of those for whom there is a real chance of persecution if refugee status is withheld.(60)

After summarising the facts (in the course of which the crimes committed by RDS became “…a rampage of aggravated robberies.(61), the plaintiff’s applications for refugee status and the decision of the Authority, Justice Smellie stated what he perceived to be the essential issues in the case. In summary:

On the first issue it was noted that the Authority had previously concluded(62) that the standard of proof required, given the choice of words, was lower than the civil standard of balance of probabilities. In any case the issue was not contested at the High Court.

i) Political or Non-Political

In determining this issue, Justice Smellie referred to only two decisions; Gil v Canada (Minister of Employment and Immigration)(63) and T v Secretary of State for the Home Department(64). Unlike the facts in the present case, the appellants in both cases had been involved in activities which had the consequential effect of killing or maiming innocent civilians. In common with the majority of cases concerning the 'political offence’ exception in deportation, extradition or refugee law, both Gil and T were fully-fledged terrorists.

The terrorist does not strike at his opponents; those whom he kills are not the tyrants he
opposes but people to who he is indifferent. They are the raw materials of a strategy not the objectives of it. The terrorist is not even concerned to inspire terror in the victims, for to him they are cyphers. They exist only as a means to inspire terror at large, to destroy opposition by moral enfeeblement, or to create a vacuum into which the like-minded can stride.(65)

Whether jurisprudence developed in the context of crimes of this nature (bomb explosions in a crowded Tehran bazaar and at Algiers airport respectively) should be applied to determine that complicity to extortion, in the name at least, of a political organisation, precludes the grant of refugee status is an arguable question.

The tests for 'political crime’ for the purposes of Article 1F(b) formulated in the above decisions are in essence quite similar.

The Gil(66) test requires that the crime at issue is:

The test arrived at by the majority judgment in the House of Lords(67) define a 'political crime’ as one which: The only significant difference between the two tests appears to be in the first criteria. The T v Home Secretary formulation would allow the object of the crime to be merely changing government policy while the Canadian approach is more in line with the traditional extradition law requirement for the political offence exception: that the crime is committed incidental to and formed part of political disturbances.(68) The virtually identical second criteria of both involve having regard to, inter alia, whether the motives were genuinely political or for mere personal gain, the means used, and whether the crime was aimed at legitimate (i.e. military or governmental) targets or at civilians.

Justice Smellie then quoted from the judgment of Lord Mustill, who disagreed with the reasoning of the majority but concurred on the dismissal of the appeal. Lord Mustill rejected a contention very similar in substance to that made by RDS and dealt with as issue four(69) in the High Court judgment.

The..[sense of proportionality]…relied on by the appellant, is that a crime cannot be

political if the adverse consequences for the fugitive of using it as a basis for extradition or refoulement would be out of proportion to the gravity of the offence. I see no substance in this…The gravity of the offence is relevant to the question of whether it is 'serious’ for the purposes of article 1F(b). But the crime either is or is not political when committed, and its character cannot depend on the consequences which the offender may afterwards suffer if he is returned.(70)

Having discussed Gil and T v Home Minister, Justice Smellie concluded that the robberies committed by RDS were non-political crimes, as any connection with the JVP uprising was peripheral, the shopkeepers were not involved in the conflict, and the crimes were carried out in part for personal gain. Evidence as to political motive was found to be inconclusive.

ii) Serious Crime

In determining whether the offences committed by RDS are properly described as serious crimes, Justice Smellie, following the dictum in Ramirez(71) that an international convention cannot be read in the light of only one of the world’s legal systems, surveyed both New Zealand and Sri Lankan law as to classification and penalties for crimes such as the series of robberies at issue. Section 235(1) (b) Crimes Act 1961 was held to be the appropriate New Zealand provision. It provides:

S235. Aggravated robbery - (1) Every one is liable to imprisonment for a term not
exceeding 14 years who - ….

b) Being together with any other person or persons robs, or assaults with intent to rob, any person

His Honour then notes that s.306 of the Crimes Act, which provides a maximum of seven years for threats to kill or do grievous bodily harm might also apply. However, on the facts as accepted by the Authority, the appellant did not personally make any of the threats, thus s.306 would not, in fact apply. In addition, as robbery, as defined in s.234 of the Crimes Act, requires violence or threats of violence, shops in which the appellant and his accomplices were given money solely on the basis that they were JVP members, without accompanying threats, may well be better defined as theft or extortion (ss220-227, 238 Crimes Act) which provide for a maximum of seven years imprisonment.

Following established guidelines(72) of sentencing for aggravated robbery, Justice Smellie estimated that, considering the number of offences, a penalty of over eight years imprisonment would be likely under New Zealand law.

Taken collectively, however, it is my view that in such circumstances in New Zealand, either on a totality approach or by way of imposing cumulative sentences, this kind of lawless behaviour on a grand scale would inevitably have led to a high penalty.(73)

Justice Smellie then considered relevant provisions of the Sri Lankan Penal Code, concluding that, in Sri Lanka, the offences, taking into account the aggravating factors, would attract at least eight years imprisonment with hard labour. Given that the RSAA found that RDS had a well-founded fear of persecution, not prosecution, and that according to country information presented to the Authority, the criminal justice system in Sri Lanka is used to detain political offenders, this summary of the potential imprisonment in the plaintiff’s country of origin appears somewhat redundant, as any punishment of RDS in Sri Lanka would be for imputed political opinion rather than as a result of due criminal process.

In essence, despite alluding to the different approach to be taken in regard to international conventions, Justice Smellie’s analysis that the 'aggravated robbery rampage’ committed by the plaintiff, would inevitably be regarded as serious, is largely shaped by reference only to New Zealand law, with little regard had for potentially mitigating factors, such as the limited surrounding circumstances.

This focus on New Zealand and Sri Lankan law has precluded consideration of the objectives of the Convention, and international interpretations of a 'serious crime’. For example the French and official version of the Convention refers to '…un crime grave de droit commun..’ which generally encompasses offences against the person, but only very serious property offences. It is arguable as to whether the crimes committed by RDS would preclude refugee status under this standard. Goodwin-Gill states:

Each state must determine what constitutes a serious crime, according to its own standards, considered against the objectives of the 1951 Convention….ad hoc approaches founded on length of sentence are of little help, unless related to the nature and circumstances of the offence. [i.e. where the claimant has been convicted outside the country of refuge] Commentators and jurisprudence seems to agree, however, that serious crimes, above all, are those against physical integrity, life and liberty.(74)

The UNHCR Handbook(75) states at paragraph 155:

155. What constitutes a “serious” non-political crime for the purposes of this exclusion
clause is difficult to define, especially since the term “crime” has different connotations in different legal systems. In some countries the word “crime” denotes only offences of a serious character. In other countries it may comprise anything from petty larceny to murder. In the present context, however, a “serious” crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1F(b) even if technically referred to as “crimes” in the penal law of the country concerned.

Hathaway, summarising both the above positions, states:

UNHCR defines seriousness by reference to crimes which involve significant violence
against persons, such as homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery. These are crimes which ordinarily warrant severe punishment, thus making clear the Convention’s commitment to the withholding of protection only from those who have committed truly abhorrent wrongs.(76)

Application of the definition of serious advocated by these passages, in addition to reflecting the intention of the Convention drafters, and being consistent with the humanitarian purpose of the Convention, would not extend exclusion to a less serious offender, such as the plaintiff.

iii) Balancing

This issue required consideration of whether the Authority, in determining the application of the exclusion clause, is required to weigh the seriousness of the offence against the gravity of the consequences for the claimant if returned to his or her country of origin. Logically, given the mandatory language of Article 1F - “The provisions of the Convention shall not apply…” any balancing should be part of the evaluation of a crime as 'serious’.

That the argument was not advanced before the Authority, was held not to preclude review of the decision on refugee status, if such an exercise is required in law. At the High Court, the question was considered as a separate issue from that relating to 'serious crime.’

Justice Smellie discussed the issue under six subheadings, which can be compressed into three, namely:

a)    Academic and UNHCR Handbook support for the balancing exercise;

b)    Judicial consideration of the balancing exercise in Canada;

c)    Decision dictated by context, policy and precedent.

d)    Academic and UNHCR Handbook support for the balancing exercise;

Justice Smellie refers to the two leading commentators on refugee law, Hathaway(77) and Goodwin-Gill(78), both of whom, based on the travaux preparatoires of the Refugee Convention, favour a balancing exercise.

Finally, and perhaps most important, the risks associated with exclusion from refugee status must not outweigh the harm that would be done by returning the claimant to face prosecution or punishment. Even though a claimant may be a serious criminal, it is possible that the heinous nature of the persecution anticipated in her state of origin counters the extradition-derived logic of her return.(79)

In practice, the claim to be a refugee can rarely be ignored, for a balance must be struck between the nature of the offence presumed to have been committed and the degree of persecution feared. A person with a well-founded fear of very severe persecution, such as would endanger life or freedom, should only be excluded for the most serious reasons.(80)

The UNHCR Handbook(81) referred to by Justice Smellie, is intended as a guide for officials responsible for the determination of refugee status worldwide, and has been held to be useful tool when resolving ambiguities or questions with competing authorities, despite lacking binding force.(82)

As noted in the High Court, the UNHCR Handbook clearly advocates that a balancing exercise be employed in relation to Article 1F(b), but not however, with regard to the other provisions of the exclusion clause. In relation to Article 1F generally, the Handbook states:

Considering the serious consequences of exclusion for the person concerned, however the interpretation of these exclusion clauses must be restrictive.(83)

Paragraphs 151 - 161 inclusive deal with exclusion for the presumed commission of a serious non-political crime. Of these, paragraph 156 is the most pertinent with regard to the requirement of a balancing exercise. It provides:

156. In applying the exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has a well-founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.(84)

Noticing the almost identical language used in this paragraph of the Handbook and the language used by academic commentators (for instance the quote from Goodwin-Gill above) Justice Smellie notes that some (anti-balancing) commentators have suggested that the UNHCR Handbook merely echoes academics. However, if this is the case, surely that adds, rather than detracts from, the logic and suitability of a balancing exercise.

b) Judicial consideration of the balancing exercise in Canada;

Justice Smellie refers to the first instance decision of Malouf v Canada (Minister of Citizenship and Immigration(85) as the only Canadian case in favour of a balancing exercise in respect of Article 1F(b). In that case, the appellant, a Lebanese national, had been convicted of drug trafficking in the US prior to claiming refugee status in Canada. In determining the claimant’s status, the Refugee Division had considered only the exclusion clause of Article 1F and not whether, notwithstanding the commission of a serious non-political crime, Malouf had satisfied the inclusion criteria.

Justice Gibson held that the Refugee Division had erred by failing to consider inclusion, and failing to balance the nature of the offence committed against the level of persecution feared. After reviewing previous decisions(86), mostly concerned with Article 1F(a) which, while rejecting a balancing exercise in respect of war crimes and crimes against humanity, had left the question open for serious non-political crimes, his Honour stated:

That article contains a qualitative qualifier “serious” that has no equivalent in Articles
1F(a) and (c). It is conceivable that what might, in abstract, be considered to be a serious non-political crime in respect of this applicant might not in relative terms be considered so “serious” when weighed against the risk that return of the applicant to Lebanon might present.(87)

Justice Smellie then considers Shamlou v Canada (Minister of Citizenship and Immigration).(88)

This decision, also at trial division, concerned an Iranian national convicted of sexual assault in the US. Justice Teitelbaum rejected the contention that exclusion must be weighed against potential persecution. With the exception of Gil(89), the cases upon which he relies in reaching this conclusion, Gonzales(90) and Ramirez,(91) are concerned with Article 1F(a) not (b) and in fact, as noted above, leave open the question of a balancing requirement with respect to serious non-political crimes.

Turning to appellate decisions, Justice Smellie then refers to Gil and Malouf (on appeal).(92)

As noted above(93) Gil concerned an Iranian national who had been involved in bombing commercial premises of supporters of the fundamentalist regime. The decision categorically ruled out a balancing requirement with respect to Article 1F(b). However, this determination seems to have been largely influenced by the reprehensible nature of the crime - the indiscriminate maiming of innocent civilians only tenuously connected to any political purpose - and the fact that, in the words of Justice Hugessen:

This country is apparently prepared to extradite criminals to face the death penalty and, at
least for a crime of the nature of that which the appellant has admitted committing, I can see no reason why we should take any different attitude to a refugee claimant. It is not in the public interest that this country should become a safe haven for mass bombers.(94)

New Zealand, in contrast, does not, in practice, extradite criminals to face the death penalty.(95) In addition, it is likely that the Court’s determination on this issue was influenced by the nature of the crimes committed, as the above passage indicates. Applying dictum from such as case to exclude an otherwise bona fide refugee where the crimes at issue are arguably not serious is open to attack as ill-conceived analysis.

Justice Smellie then considers Malouf on appeal, the decision of which was also delivered by Justice Hugessen. Following Gil, which was not considered at trial division level, the decision of the lower Court was overturned. The judgment states that Article 1F(b) should receive no different treatment than paragraphs (a) or (c). This attitude disregards the fact that while persons falling under the definition of paragraphs (a) especially, and (c) are, by definition presumed guilty of atrocious acts, paragraph (b) has, if applied liberally, a much wider scope. As Goodwin-Gill notes:

Arguably also the crimes mentioned in article 1F(a) are necessarily extremely serious to the extent that there is no room for any weighing of the severity of potential persecution against the gravity of the conduct which amounts to a war crime, a crime against peace or a crime against humanity.(96)

Ignoring the intentions of the drafters, the Canadian courts have thus firmly advocated a liberal approach to the interpretation of the exclusion clause. That such an approach is seemingly at odds with the humanitarian purpose of the Refugee Convention has been overlooked in favour of ensuring that undesirable claimants are not granted residence in Canada.

c) Decision dictated by context, policy and precedent.

Having considered Canadian jurisprudence, Justice Smellie turns to consider whether, in his view, the Refugee Convention should be read in light of its overtly humanitarian purpose. He notes that Article 1F provides for mandatory exclusion if the evidentiary threshold is attained. However, as noted above,(97) the balancing advocated is necessarily part of the exercise of considering whether a crime is in fact serious, thus the analysis pre-empts the evidentiary threshold.

Justice Smellie then quotes extensively from 'Applicant A’ v Minister for Immigration and Ethnic Affairs.(98) This case concerned the definition of 'membership of a particular social group’ as criteria for inclusion, rather than the exclusion clauses of the Convention. However each of the five Judges considered the appropriate interpretative approach to the Refugee Convention. Justice Smellie quotes from the judgment of Justice Dawson, limiting interpretation to the language of the provision.(99)

In contrast, Chief Justice Brennan, concurring with Justices McHugh and Gummow, thus constituting a majority on the question of treaty interpretation, stated:

In interpreting a treaty it is erroneous to adopt a rigid priority in the application of
interpretative rules…Rather…it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both text and the object and purpose of the treaty in order to ascertain its true meaning…The form in which a treaty is drafted, the subject to which it relates [and] the mischief that it addresses…may warrant consideration in arriving at the true interpretation of its text.(100)

This approach, rather than that favoured by Justice Dawson and, by implication, Justice Smellie, is in accordance with Article 31 of the Vienna Convention on the Law of Treaties,(101) and would allow for reflection of the intention of the drafters of the Convention, who were, in the post-war years, primarily concerned to preclude the grant of refugee status to war criminals, hence the mandatory language of Article 1F. The serious non-political crime ground of exclusion was inserted to ensure signatory nations were not bound to accept claimants that might threaten their internal security, or whose criminal character outweighed their risk of persecution.

Concluding his judgment, Justice Smellie then advocates the development of consistent interpretation of the Refugee Convention within common law jurisdictions. On this basis, in his view, New Zealand should follow Canadian precedent and adopt a liberal interpretation of the exclusion clause, precluding a balancing exercise.

He therefore determined that the Authority is not required to weigh the seriousness of the crime committed against the gravity of the persecution feared, and thus there existed no basis on which the decision of the Authority could be reviewed.

D.APPEAL TO THE COURT OF APPEAL(102)

RDS appealed from the High Court decision declining judicial review of the Authority’s decision to the Court of Appeal. The case was heard before Justices Henry, Keith and Blanchard in March of this year, and the decision was delivered by Justice Henry, for the Court on 2nd April 1998.

Before the Court of Appeal the crucial issue was the Authority’s finding that the offences committed by the appellant were properly categorised as 'serious crimes’ for the purposes of Article 1F(b). The determination of the High Court that the crimes were non-political and the determination of the RSAA that RDS satisfied the inclusion criteria were not contested on appeal.

The primary argument made by counsel for the appellant was therefore that the application of Article 1F(b) to exclude an otherwise bona fide refugee claimant requires some form of balancing exercise that involves weighing the seriousness of the crime with the gravity of persecution anticipated if the claimant is returned to their country of origin.

The thrust of the argument…is that a crime will only be serious if its particular nature outweighs the duty to offer protection from a particular form of prosecution.(103)

The use of the word 'prosecution’ in the above quote from the judgment of the Court is controversial given that it was accepted by the RSAA, and not questioned in subsequent proceedings, that the appellant faced a real chance of persecution not prosecution in Sri Lanka. The Authority accepted that police interest in RDS was for JVP activities rather than for any legitimate criminal prosecution purposes, and that the criminal justice system in Sri Lanka is used to detain political offenders.

The Court promptly expressed its reluctance to accept this line of argument.

The difficulty with this approach is apparent from its very formulation. It requires the
degree of criminality be assessed not only from an analysis of the actual offending , but also by reference to factors which are external to and may well be (as in the present case) unrelated to the offending.(104)

If, in the above statement, by external factors is meant the level of persecution feared, it is hard to see, on the facts in this case, that such a factor is unrelated to the offending. The persecution feared by RDS is due to JVP membership. While the crime may be non-political by reason of lack of nexus between the crime and the political purpose, the appellant’s involvement in such activities was due to his association with the JVP. The case before the Court was not one where the offending was completely unrelated to the well-founded fear of persecution.(105)

The Court obviously found difficulty with assessment of whether an offence is a serious crime by reference to such external factors, yet courts in this country make similar determinations everyday, both in relation to degrees of guilt or complicity and, especially, in sentencing, when external factors such as age, previous convictions and gang affiliations are always relevant. In the refugee context, where persecution will result upon return, exclusion could be seen as akin the imposition of an extremely harsh sentence.

Considering the construction of Article 1F(b) the Court stated:

We accept…that the phrase “serious crime” has to be construed in the context of the

Convention and its stated purposes. It has a humanitarian context, and is intended to give a means of protecting fundamental rights and freedoms. Within that framework however, the written words must be given their ordinary meaning when that is clear and does not yield an absurd or unreasonable result.(106)

The notion of an unreasonable result, referred to in the above passage is provocative. It could be argued, if for instance it was certain that a claimant would be killed upon repatriation, that effectively issuing a death sentence for aggravated robbery is yielding an unreasonable result.

The judgment continues, upholding the analysis of Justice Smellie in considering the level of penalty for the offences at issue, and holds that it is not possible to read in to Article 1F(b) qualifying words such as would require a balancing test. The fact that, as noted above,(107) 'serious’ is itself a qualifier which could warrant weighing against the persecution feared, and serves to distinguish paragraph (b) from paragraphs (a) and (c), is overlooked by the Court.

Having already stated their conclusion with regard to balancing, the judgment cites appropriate case law to support their position. With the exception of Dhayapka v Minister for Immigration and Ethnic Affairs,(108) the cases referred to, Gil,(109)  Malouf(110) (on appeal) and T v Home Secretary,(111) were extensively canvassed in the High Court, and with respect to jurisprudence from other jurisdictions, the Court of Appeal judgment (which cites exactly the same quotes) unfortunately adds very little. In particular, the quotation from Gil, arguably inappropriate to the facts in the case at hand, has been discussed above.(112)

The Court’s judgment correctly states that in Dhayapka(113) the Federal Court of Australia held that there was no obligation to weigh the seriousness of the crime against possible harm to the returned applicant. However after that statement the judgment quoted paragraph 156 of the UNCHR Handbook(114), which advocates a balancing exercise, and stated:

It is not necessary for present purposes to decide whether the evaluative characterisation of an offence as serious attracts elements of a balancing exercise. For on any view, a conspiracy to import into Australia trafficable quantities of heroin [the offence committed by the appellant in that case] must be regarded as a serious offence.(115)

Justice French for the Court continued:

The provisions of the Convention are beneficial and are not to be given a narrow

construction. The exemption in Article 1F(b) however, is protective of the order and safety of the receiving State. It is not, in my opinion, to be construed so narrowly as to undercut its evident policy….A person who would otherwise qualify for admission as a refugee may be disqualified by the operation of Article 1F(b) if it were shown that such a person had a record of serious non-political criminal offences whether in the country of origin or elsewhere.(116)

Any support from the Dhayapka decision for the conclusion reached by the Court of Appeal is therefore contentious, as the above passages indicate. The Federal Court, while appearing to rule out weighing 'serious crime’ against persecution anticipated, suggests that the gravity of the consequences of exclusion may figure within the evaluation of seriousness.

In addition, the judgment correctly focuses on the policy behind the provision, to protect the public order of the receiving state. The logical application of this concern, as noted in the extract above, would preclude granting refugee status to claimants whose persistent criminal character would endanger domestic security, and would necessarily exclude - thereby answering the preoccupation of the Court in Gil and the House of Lords in T v Home Secretary - terrorists.

Having conducted a limited review of decisions from other jurisdictions, the judgment asserts that the statements of principle contained in the cited authorities are not distinguishable through analysis of the seriousness of the particular crime.(117) With respect, that declaration appears to disregard the significant fact that the overseas authorities cited are not binding on a New Zealand tribunal or court, and therefore whether or not they are distinguishable is irrelevant.

The judgment then briefly summarises two sources of support for counsel for the appellant’s submission; the Travaux Preparatoires and academic commentators. The arguments of the two leading commentators, Goodwin-Gill and Hathaway, advocating a balancing exercise, are summarily dismissed as being not persuasive.

After consideration of the third source relied on by the appellant, the Convention against Torture,(118) the Court concludes:

Having taken into account all the matters urged by counsel, we have reached the conclusion that the words of Article 1F(b) being clear and unambiguous, should not be given some special meaning, requiring the addition of qualifying words which are not easily capable of insertion, and are unnecessary to give an acceptable meaning in context to the paragraph. Whether a crime is to be catergorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences. It does not depend upon, nor does it involve, a comparative assessment of its own gravity with the gravity of the perceived persecution if return to the homeland eventuates.(119)

However, given the rarity of judicial consideration of refugee issues by New Zealand courts, the importance of the issues involved, and the fact that the decision was anticipated as likely to settle the approach taken by the RSAA to application of the exclusion clause,(120) the judgment of the Court of Appeal is, with respect, disappointing.

Regardless of the view taken on the appropriate interpretation and application of the serious non-political crime exception to the grant of refugee status, the decision of the Court lacked a sufficiently deep analysis of the competing policy interests at stake. It reads as if the learned Justices had done no more preparation and research than review the submissions of counsel and the High Court judgment. The use of the quotations from Gil and T v Home Secretary, which were but two of the many citations in the judgment of Justice Smellie, and the summary dismissal of years of research concerning the drafting and application of the Convention undertaken by academic commentators, reeks of such nonchalance on the part of the Court.

4. CRITIQUE: RELEVANT JURISPRUDENCE AND COMMENT IGNORED BY THE COURT

The conclusion reached by both the High Court, and the Court of Appeal in relation to the balancing exercise advocated by the appellant was based entirely on Canadian jurisprudence, primarily the Gil decision, and the judgment of the House of Lords in T v Home Secretary. As noted above, both cases concerned extreme terrorist action, and thus, when applied to exclude an applicant who has committed a much less serious, quasi-political crime, will inevitably result in (disproportionate) exclusion.

A partial excuse may be provided by the fact that cases with circumstances akin to those in the RDS case are exceptionally rare. Where the crime at issue is less serious it often has no connection at all to the persecution anticipated. Commentators often use hypotheticals, such as, for example, the claimant who steals a car in order to escape a tyrannical regime, whereas Courts are usually faced with brutal and atrocious behaviour, particularly in the context of terrorist claimants, or Article 1F(a).

Canadian jurisprudence, is arguably, not a particularly appropriate guide in the context of Article 1F(b), as the majority of cases, with the exception of Gil and Malouf, are almost exclusively concerned with crimes against humanity, which, given the subject matter, and the lack of a qualifier “serious” does not attract, and is probably not capable of, interpretation requiring the application of a balancing test.

In addition, the decision in Gil, precluding different treatment for paragraph (b), was influenced by the series of cases excluding claimants on the basis of Article 1F(a), despite several of those cases, while favouring a liberal approach with respect to exclusion for crimes against humanity, left open the question of balancing with respect to serious non-political crimes.

Perhaps the modifier “serious” in 1F(b) would make possible the balancing suggested but
there is no room for it in 1F(a). The crimes of 1F(a) are, by nay definition, extremely serious.(121)

The excessive focus on Gil and T v Home Secretary may also have prevented the Court from considering European or US jurisprudence. For instance, the Swiss Appeals Board has held that expelling an 'unworthy’ asylum seeker where they face a risk of torture in their country of origin, even under domestic statutory authority, violates the non-refoulement provisions in Article 33 of the Refugee Convention, and Article 3 of the European Convention on Human Rights. In that case, after considering a range of factors including, the age of the claimant, the fact that he was only a party to the crime (murder), and his lack of criminal activity in Switzerland, the Board concluded, that for the purposes of 1F(b) the crime was not serious.(122)

The American Board of Immigration Appeals, considering the case of a Cuban national given temporary asylum after the 1980 Mariel boatlift, held that possession of cocaine and burglary, for the purposes of the statutory provision incorporating Article 1F(b), were not serious crimes.(123) Under New Zealand law, burglary, which involves breaking and entering, is a more serious crime, liable to a longer term of imprisonment, than aggravated robbery which RDS was presumed to have committed.(124)

The focus of Justice Smellie, endorsed by the Court of Appeal, on classification of the offence under New Zealand law, and the likely sentence imposed, is, given the emphasis on the importance of consistency with other common law jurisdictions, problematic. The reference to domestic law, especially in regard to sentencing considerations, inevitably introduces inconsistency. For example, consider the difference in treatment received in US courts with respect to marijuana possession, particularly for repeat offenders (automatic imprisonment) compared with New Zealand practice.

In addition to the cases cited above, both the High Court, and the Court of Appeal decisions, surprisingly, make no reference to the Chahal cases.(125) Although the case concerned Article 33(2) of the Refugee Convention, as the appellant had already been granted residence in the UK, the decisions cover many of the issues presented in the RDS proceedings.

Article 33(2) provides:

The benefit of the [non-refoulement] provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the country in which he is…

A unanimous bench of the Court held that, in deciding whether to deport the appellant, who was believed to constitute a danger to public security in the UK by reason of his support of extremist Sikh groups in the Punjab and proselytizing activities on their behalf among the Sikh community in the UK, the Home Secretary was required to balance the (substantial) risk of persecution to the appellant against the risk to national security of his continued presence in the UK.

After surveying the views of commentators, Staughton LJ stated:

I do not find it at all surprising that international lawyers consider the doctrine of

proportionality relevant. Despite the literal meaning of Article 33, it would seem to me quite wrong that some danger to national security should allow expulsion or return in a case where there was a present threat to the life of the refugee if that took place.(126)

At 538 of the judgment, Nolan LJ added:

The proposition that, in deciding whether the deportation of an individual would be
conducive to the public good, the Secretary of State should wholly ignore the fact that the individual has established a well founded fear of persecution in the country to which he is to be sent seems to me to be surprising and unacceptable.(127)

However, on the facts in the case, the Court held that the Secretary of State had actually conducted the required balancing exercise. The appellant complained to the European Court of Human Rights, whose jurisdiction the United Kingdom is bound to accept by virtue of being a signatory to the 1950 European Convention on Human Rights (ECHR), on the basis, that deportation would, inter alia, breach Article 3 of the ECHR, which provides:

No-one shall be subject to torture or to inhuman or degrading treatment or punishment.

The Court, noted that Article 3 enshrined one of the most fundamental values of a democratic society and afforded an absolute prohibition on such treatment. Applying the article to expulsion by a contracting State, the Court held that expulsion, in such circumstances constituted a violation of Article 3.

Headnote 2(a), summarising the majority judgment states:

The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion
cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subject to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances the activities in question, however undesirable or dangerous, cannot be a material consideration.(128)

Although Article 3 ECHR is, like Article 3 of the Convention against Torture, discussed below, of much wider scope than the non-refoulement provision of the Refugee Convention, and proponents of the requirement of a balancing exercise in the application of Article 1F(b) do not advocate an absolute ban on exclusion, consideration of the above cases by the Court of Appeal would have produced a more considered analysis of the competing policy issues at stake in the RDS case. Such judicial analysis would have been more appropriate, given the fundamental human rights involved.

5. A BRIEF COMMENT ON THE CONVENTION AGAINST TORTURE(129)

In the Court of Appeal, counsel for RDS referred to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. New Zealand signed the Torture Convention on 14th January 1986, and has enacted the Crimes of Torture Act 1989, which incorporates some of the provisions of the Convention.

The long title of the Crimes of Torture Act 1989 provides:

An Act to make better provision for the punishment of crimes of torture,and to implement
the Convention Against Torture and Other Cruel,Inhuman, or Degrading Treatment or Punishment

Article 3 of the Convention against Torture provides:

The Court of Appeal, however, despite recognition by the Authority and the High Court that the appellant, if returned to Sri Lanka, might be tortured(130) rejected that the appellant could gain any support for his submission from the Torture Convention.

Article 3.1 of that convention gives to political torture victims absolute protection. We
accept…that this provision has no relevance to the present issue. The Convention Against Torture has its own regime and places its own separate obligations on contracting States in respect of all persons, not only refugees. It cannot affect or control the exclusion provisions of the Refugee Convention.(131)

As refugee status determination is exclusively the domain of the Executive, the current Terms of Reference limit what the RSAA may have regard to. The role of the Authority, as dictated by exercise of the prerogative, is only to hear appeals from the Refugee Status Branch on the question of refugee status. It does not have jurisdiction to consider whether refoulement through refusal of refugee status may violate Article 3 of the Torture Convention.

Despite NZIS policy, that in refugee determination New Zealand is obliged to take notice of UN Conventions,(132) and notwithstanding the purpose of the Crimes Against Torture Act being to implement the provisions of the Torture Convention, the RSAA, bound by the Terms of Reference, may not take the Convention into account.

In the conclusion of their judgment, the Court of Appeal state:

It is important to remember that exclusion from the provisions of the Refugee Convention
does not mean automatic expulsion from New Zealand, or refoulement. This country’s obligations under the Torture Convention remain. The appellant’s rights to invoke such of the humanitarian provisions of the Immigration Act 1987 as may be available to him are also unaffected.(133)

What, then, are the options left open to RDS in his quest to remain in New Zealand, free from the possibility of persecution and torture in Sri Lanka' If served with a removal order he could appeal to the Removal Review Authority on humanitarian grounds under s.63B of the Immigration Act 1987, or apply to the Minister for a special direction under s.130. A likely argument would be based on the dictum of Ashby(134) and Tavita,(135) that the Torture Convention is one of those international obligations that are so manifestly important that no reasonable Authority or Minister could fail to take them into account. Alternatively, he could make a communication to the Committee against Torture.

6. CONCLUSION

The RDS proceedings, particularly at Court of Appeal level, provided an ideal opportunity to demonstrate New Zealand’s commitment to the protection of genuine refugees. By treating Canadian jurisprudence, which, as discussed above can be attacked, as if it were binding precedent, the Court failed to take up this challenge.

The judgment of the Court of Appeal in this case is disappointing. It lacks sufficiently deep analysis that the complex issues involved deserve. The judgment of Justice Smellie, in the High Court, in contrast, involves a detailed consideration of the arguments for and against balancing the seriousness of the crime presumed committed with the gravity of the persecution anticipated. Like the Court of Appeal, however, excessive deference was given to Canadian jurisprudence, which has been overly influenced by anti-terrorist concerns, and Article 1F(a).

There is a significant difference between paragraphs (a) and (b) of Article 1F. Reference to the views of the drafters of the Convention quickly confirms this. The use of the 'qualifier’ serious is reflection of this difference. The two exclusion grounds can, and should be treated differently. The balancing advocated in relation to paragraph (b) is part of the determination of whether a crime is properly categorised as serious, for the purposes of exclusion. It does not, therefore apply to crimes against humanity, nor conflict with the mandatory language of Article 1F.

Conventions protecting fundamental right and freedoms are to be interpreted purposively. The humanitarian objectives of the Refugee Convention preclude a liberal approach to exclusion. Respect for those objectives requires a balancing exercise in the application of Article 1F(b).

RDS was not a terrorist. He had not bombed airports, killed anyone, or engaged in any kind of violent conduct. That his status should be determined according to dictum best suited to those who use indiscriminate violence against civilians is unjust.

Whether the crime he committed is properly described as serious, even without the benefit of a balancing exercise, is highly contentious. Even classed as aggravated robbery, the offence is not among those generally perceived of as serious in this context. The sentence-focused determination of this issue by Justice Smellie is not realistic, and inevitably results in inconsistency with other jurisdictions.

In short, the circumstances of the appellant’s claim for refugee status provided an ideal opportunity to, following previous RSAA jurisprudence, reflect the humanitarian purpose of the Convention and the intentions of the drafters, by weighing the persecution feared against the seriousness of the crime committed and other relevant factors.

The decision of the Court of Appeal will prevent the grant of refugee status to future bona fide refugees, some of whom may have a much more substantial expectation of persecution, perhaps even death, awaiting them if returned to their country of origin. The decision is, ultimately, short-sighted.

FOOTNOTES

1 Herein referred to as the Refugee Convention

2 See respectively, 1961 NZ Treaty Series 2; and 1973 NZTS 21.The 1951 Convention was limited to claims related to a pre-1951 event in Europe. The 1967 Protocol expanded the Convention to its current international competence by the removal of this limitation.

3 For a more detailed analysis of the intentions of the drafters, as indicated by the Travaux Preparatoires see Goodwin-Gill, G. The Refugee in International Law (1996) at 95-114; Hathaway, J. The Law of Refugee Status (1991) at 214-229

4 Including the Constitution of the International Refugee Organisation, and the UNHCR Statute.

5 The Status of Refugees in International Law (1966); Goodwin -Gill, supra, note 3 at 103.

6 For more detailed analysis of the interplay of refugee and extradition law see Gilbert, G. Aspects of Extradition Law. 1991, especially 136-137; 231-244.

7 Office of the United Nations High Commissioner for Refugees: Handbook on Procedures and Criteria for Determining Refugee Status. (1988).

8 Minister of Home Affairs v Fisher [1980] AC 319 (PC), at 328

9 Refugee Appeal No 70001/96 Re RSDS (30/4/97)

10 S v Refugee Status Appeals Authority [1998] 2 NZLR 301 (Smellie J).

11 S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (Henry, Keith and Blanchard JJ).

12 Haines, R.P.G. The Legal Condition of Refugees in New Zealand. Legal Research Foundation. Auckland. 1995, at 4.

13 Letter from NZIS to author, 18 May 1998.

14 Benipal v Ministers of Foreign Affairs and Immigration, High Court. Auckland. 16 December 1985, A 993/83, Chilwell J.

15 Previously Refugee Status Section

16 Singh v Refugee Status Appeals Authority [1994] NZAR 193

17 Butler v Attorney General and the Refugee Status Appeals Authority. Court of Appeal. 30 September 1997. CA 181/97 at 21-23.

18 Haines, supra, note 12 at 9.

19 See Singh, supra, note 16 at 215-216.

20 NZIS Operational Manual at Leg. 4-2. [emphasis added]

21 See Calvin v Carr [1980] AC 574 (PC) but c.f. Martin v Ryan [1990] 2 NZLR 209

22 Note that administrative law allows judicial review of policy if the policy can be said to have established a legitimate expectation. See Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (PC)

23 (6/3/97). See also Refugee Appeal No. 1248/95 Re TP (31/7/95)

24 High Court, Auckland. 9 October 1997, M 826/97, Williams J.

25 (30/11/95)

26 (17/2/92) See Refugee Appeal No. 70050/96 Re BS (20/2/97); [1997] NZAR 433, which confirmed that, at that date, Re SK remained the leading decision of the Authority on Article 1F(b) and commented at 438: “No other decision of this authority has analysed the issues with as much clarity and penetration….[it] proceeded on a principled approach based on the philosophy, history and ethos of the Convention…”

27 The decision adopted the test propounded in McMullen v INS (1986) 788 F.2d 591 (Court of Appeal, Ninth Circuit), requiring proportionality between the means used and the ends sought.

28 Re SK, supra, note 26 at 40

29 UNHCR Handbook, supra note 7. Paragraph 156 is examined and set out below, see text, infra at 16.

30 Supra, note 11.

31 (5/8/94)

32 Ibid. at 32

33 (15/5/95)

34 (4/4/95)

35 and 148 Supra, note 33 at 13

36 Ibid. at 15 [emphasis added]

37 Supra, note 34 at 1

38 Ibid. at 7-8

39 Refugee Appeal No. 1354/93 Re GD (14/12/95)

40 An Appeal for Leave to Appeal by BA (8/12/94)

41 Refugee Appeal 2245/94 Re SS (28/10/94)

42 Supra, note 9 at 2 -8

43 See for example the decisions appealed against in Gonzalez v Canada (1994) 24 Imm. LR (2d) 229; Malouf v Canada (1994) 26 Imm. LR (2d) 21; Moreno v Canada (1993) 21 Imm. LR (2d) 221.

44 (17/9/96)

45 R v Secretary of State for the Home Department, Ex Parte Sivakumaran [1988] AC 958 (HL); Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379

46 Supra, note 44 at 15.

47 Supra, note 39.

48 Supra, note 9 at 10-12.

49 Ibid. at 13.

50 Supra, note 44.

51 Supra, note 9 at 14.

52 Article 1F in its entirety is set out above. See text, infra at 2

53 See Ramirez v Canada (Minister of Employment and Immigration) 89 DLR (4th) 173

54 Supra, note 9 at 15

55 Supra, note 31.

56 Supra, note 27.

57 Ibid. at 595

58 Supra, note 9 at 16.

59 Supra, note 10.

60 Ibid. at 3.

61 and 148 Ibid. at 4.

62 Refugee Appeal No. 1248/93 Re TP (31/7/95).

63 (1995) 119 DLR (4th) 497 (FCA)

64 [1996] AC 742 (HL)

65 Ibid. at 774 per Lord Mustill

66 Supra, note 63

67 T v Home Secretary supra, note 64 at 786-787 per Lord Lloyd (Lord Keith and Lord Browne-Wilkinson concurring)

68 First propounded in Re Castioni [1891] 1 QB 149

69 See text, infra at 14

70 T v Home Secretary supra, note 64 at 768-769 per Lord Mustill; quoted at 13 of S V RSAA (HC) supra, note 10

71 Supra, note 53 at 178.

72 R v Moananui [1983] NZLR 537

73 Supra, note 10 at 15

74 Supra, note 3 at 105 [emphasis added; citations omitted]

75 Supra, note 7.

76 Supra, note 3 at 224. [emphaisis added, citations omitted]

77 Supra, note 3.

78 Supra, note 3.

79 Hathaway, supra, note 3 at 224. Quoted in S v RSAA (HC), supra, note 10 at 19. Reviewing the concern of the drafters of the Convention that bona fide refugees were not excluded for crimes of no great consequence.

80 Goodwin-Gill, supra, note 3 at 106-107.

81 Supra, note 7.

82 R v Secretary of State for the Home Office Department, Ex parte Bugdaycay [1987] AC 514

83 Supra, note 7 at paragraph 149.

84 Ibid.

85 (1994) 26 Imm.LR (2d) 20

86 Including Gonzales, supra, note 43; and Cardenas v Canada (Minister of Employment and Immigration) (1994) 23 Imm.LR (2d) 244, which states, at 252: The board must be extremely cautious in its application of the exclusion clause, particularly in situations…where it has concluded that the claimant has a well-founded fear of persecution in his country of origin.

87 Supra, note 85 at 36

88 (1995) 32 Imm.LR (2d) 135

89 Supra, note 63.

90 Supra, note 43.

91 Supra, note 53.

92 (1995) 190 NR 230 (CA), unavailable in Davis Library.

93 See text, supra at 12.

94 Supra, note 63 at 517. Cited in S V RSAA (HC), supra, note 10 at 25. [Emphasis added, citation omitted].

95 See Extradition Act 1965 s.5A, as inserted by the Abolition of Death Penalty Act 1989 s.7, which grants a discretion to the Minister of Justice to refuse extradition if the offender has, or is liable to be, sentenced to death. Also relevant in this context is s.5(1)(b) of the principal act, as amended by the Crimes of Torture Act 1989 s.6, which proscribes extradition where there are substantial grounds to believe the offender would be in danger of being subject to an act of torture.

96 Supra, note 3 at 97.

97 See text, supra, at 15

98 (1997) 142 ALR 331 (HCA)

99 Supra, note 10 at 29; Ibid. at 346

100 Supra, note 98 at 333

101 1969. Article31(1) provides: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. With respect to this rule of international law, Goodwin-Gill states: For the purposes of the 1951 Convention relating to the Status of Refugees, this means interpretation by reference to the object and purpose of extending the protection of the international community to refugees… (Supra, note 3 at 366-367).

102 Supra, note 11.

103 Ibid. at 4.

104 Ibid.

105 For instance Malouf, supra at note 85; Shamlou, supra at note 88.

106 Supra, note 11 at 6

107 See text, infra, at 16.

108 (1995) 62 FCR 556 (FCA) Note: As the reported judgment was unavailable in Davis Library, reference are without page numbers as I could only access the case through the Austrom Database on-line.

Supra, note 63.

110 Supra, note 93.

111 Supra, note 64.

112 See text, infra, at 17.

113 Supra, note 108.

114 Set out above, see text, infra at 16.

115 Supra, note 108 at paragraph 24.

116 Supra, note 108 at paragraph 29.

117 Supra, note 11 at 9.

118 See text, infra at 24.

119 Supra, note 11 at 10.

120 See S v RSAA (HC), supra, note 10 at 18-19.

121 Gonzalez, supra, note 43 at 238.

122 S.A.M v BFF, IJRL/0215. Noted at [1994] 4 International Journal of Refugee Law 672.

123 In Re Fidel Armando Toboso Alfonso, IJRL/0201. Noted at [1994] 3 IJRL 475. See also the discussion of UNHCR guidelines to US officials concerning presumptions of serious crime for Mariel asylum-seekers, discussed in Goodwin -Gill, supra, note 3 at 107.

124 See Crimes Act 1961, ss.240, 241.

125 R v Secretary of State for the Home Department, Ex parte Chahal [1995] WLR 526 (CA); Chahal v United Kingdom (1996) 23 EHRR 413 (ECHR)

126 Chahal (CA), ibid. at 533

127 Ibid. at 538.

128 Chahal (ECHR), supra, note 126 at 414

129 Generally, see Burgers, J.H. & Danelius, H. A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (1988)

130 See supra, note 9 at 13 (RSAA); supra, note 10 at 6 (HC).

131 Supra, note 11 at 10.

132 See text, infra at 4. Supra, note 20.

133 Supra, note 11 at 11.

134 Ashby v Minister of Immigration [1981] 1 NZLR 222.

135 Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266.