On April 2nd 1998 the New Zealand Court of Appeal judgment of S v Refugee Status Appeals Authority [1998] 2 NZLR 291 was released. The appellant, nine years after arrival in New Zealand was finally and conclusively denied refugee status, despite being found to have a well-founded fear of persecution in his country of origin, Sri Lanka, due to exclusion under article 1F(b) of the Refugee Convention.
The decision is significant. It is one of only 3 refugee cases to be considered by the Court of Appeal. As such, its effect on refugee status determination relating to the operation of the exclusion clauses of the Convention will be considerable, perhaps conclusive. In the face of substantial jurisprudence both domestic and international advocating a generous approach to the interpretation of conventions and legislation concerning fundamental human rights, the Court of Appeal has opted for a restrictive approach to the Refugee Convention through a liberal interpretation of the exclusion clauses. By blindly following English and Canadian case law, without allowing for the different circumstances involved in the case at issue, the Court has, I believe, placed procedure and precedent over purpose.
In addition, the case raises an interesting question: at what stage in an appellant’s determination or removal process should New Zealand’s obligations under the Convention against Torture be considered? The entirely prerogative-based nature of our refugee determination system seemingly excludes mandatory consideration of the implications of the Torture Convention from being considered in the most knowledgeable, appropriate forum. Certainly this appears to be the view of the Court of Appeal in this case.
Initially the case interested me for two reasons. Firstly I had the experience of living in Colombo during much of the JVP insurrection. Secondly, upon initial perusal, I disagreed with the Court of Appeal decision on almost every point raised. Several months later, I still do. While the conclusion reached certainly has merit in some aspects, it is the well thought out High Court decision which demonstrates this. Given the importance of the subject matter, and the likelihood that this case will have a potentially conclusive effect on this question, the Court of Appeal judgment remains shallow and unimpressive. Refugee issues are of sufficient importance, internationally, to demand more from our appellate Court than the lacklustre rehashing of the High Court judgment.
I was warned not to write a polemic, but to examine all the various issues involved and reach a considered conclusion. I have strived to do this, but, having done so, found myself back at my initial starting point, conceptually and politically. I therefore apologise if I appear to be guilty of not heeding this warning.