[1] New Zealand is a State party to
both the Convention relating to the Status of Refugees 1951 and the
Protocol relating to the Status of Refugees, 1967 (“the Refugee
Convention”) and has thereby assumed a non-derogable duty not to expel
or return (“refouler”) a
refugee in any manner whatsoever to the
frontiers of territories where his or her life or freedom would be
threatened on account of his or her race, religion, nationality,
membership of a particular social group or political opinion.2
The persons to whom this obligation is owed are those who satisfy the
refugee definition in Article 1A(2) of the Convention, namely persons
who:
[2] The implementation of the
non-refoulement obligation is therefore a matter of some significance
to New Zealand at both the international level (the duty to perform
treaty obligations in good faith) and the domestic level (the practical
implementation of that duty).
[3] Beyond domestic
incorporation is the equally important question of
the proper interpretation of Article 1A(2). The refugee
definition does not itself articulate expressly those human rights
which, if denied, give rise to a circumstance that can properly be
described as a risk of being persecuted. Nor does the Refugee
Convention contain any provision addressing the question whether
individuals have a duty to avoid the risk of being persecuted, that is,
whether they should forego the exercise of a fundamental human right in
order to avoid the harm which might follow from the exercise of that
right. All of these fundamental issues are left to interpretation.
[4] The domestic incorporation
of the Refugee Convention and its
interpretation by domestic tribunals is therefore a question of no
little importance.
[5] In a common law-based system the
domestic law path to international
human rights is at times complicated and hazardous. This is
because the Executive may enter into treaty obligations, but only
Parliament can enact legislation. The twin doctrines of
separation of powers and parliamentary sovereignty mean that domestic
law and obligations under international treaty law are treated as
independent systems. International treaty obligations are not
binding in domestic law until they have been incorporated by
legislative action.3
[6] There have been notable
attempts by the judiciary in several common
law jurisdictions to ameliorate this rule, particularly in the case of
unincorporated human rights treaties, most often the International
Covenant on Civil and Political Rights, 1966, the Convention on the
Rights of the Child, 1989 and the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (“Torture
Convention”). The aim of this paper is not to explore the
propriety of these attempts.4 It is
sufficient only to note that
some have foundered, as in Australia where the decision of the High
Court in Minister for Immigration
and Ethnic Affairs v Teoh5 was
instantly neutralised by the Executive of the Federal Government in
Joint Statement by the Minister for
Foreign Affairs, Senator Gareth
Evans, and the Attorney-General, Michael Lavarch - International
Treaties and the High Court decision in Teoh (10 May
1995). This
has led to fundamentally differing views as to whether any role has
been left for international human rights conventions in Australian
domestic law.6 In the Supreme Court of the
United States of
America, the majority in Lawrence v
Texas notably referred to
international human rights jurisprudence to support the proposition
that a Texan law criminalizing private adult homosexual conduct was
invalid by the standards of the US Constitution.7
Justice Scalia,
a member of the dissenting minority, described the majority discussion
of foreign views as “meaningless dicta” and was of the view that the
Supreme Court “should not impose foreign moods, fads, or fashions on
Americans”.8 One commentator has described
the possible outcome of
the majority decision as heralding “a jurisprudence of ‘unexperienced
rights’ ... that is truly untethered, permitting the [Supreme] Court to
roam the world freely, fashioning due process guarantees based on its
own conception of the common good” and international human rights
tribunals are described as providing “fertile soil for such unfettered
constitutionalism”.9 In Canada, on the other
hand, while it has
been said that since the Canadian Charter of Rights and Freedoms, 1982,
the Supreme Court of Canada has been much more proactive in bringing
international human rights law and comparative law into domestic
decision-making, one commentator has very recently asked whether the
integration of international human rights law may have gone too far,
limiting if not impeding the forward-looking protection of the Charter.10
[7] In New Zealand it has been
suggested that the “new dawn” promised
in Tavita v Minister of Immigration11 has led to doctrinal confusion of
serious proportion in that, in post-Tavita
jurisprudence the Court of
Appeal has adopted two potentially inconsistent conceptual models to
explain the relevance of unincorporated treaties to administrative
power.12 The first model is that
unincorporated treaties may amount
to a mandatory relevant consideration that decision-makers are obliged
to have regard to (“the mandatory relevant consideration model”).
The second is that when interpreting legislation, the courts will
presume that Parliament did not intend to legislate contrary to New
Zealand’s international obligations (“the consistency model”). It
has been pointed out that an aspect of the tension between these two
models is that the first is limited to issues of process (the
considerations the decision-maker must take into account), whereas the
second is not so confined. Unincorporated treaty obligations
under the consistency model can dictate the outcome.
Beyond
this tension is the (so far) largely neglected significance of s 6 of
the New Zealand Bill of Rights Act 1990.13
[8] The most notable decisions
of the Court of Appeal in which the
consistency model has been applied are New Zealand Air Line Pilots’
Association Inc v Attorney-General14, Sellers v Maritime Safety
Inspector15 and Wellington District Legal Services
Committee v
Tangiora.16 The “consistency”
principle was most clearly
articulated in New Zealand Air Line
Pilots’ Association Inc v
Attorney-General17:
[9] It is a striking feature of the
New Zealand statutory provisions
governing refugee determination that both the consistency model and the
mandatory relevant consideration model have been employed by
Parliament. Refugee decision-makers
are required “to act in a
manner consistent with New Zealand’s obligations under the Refugee
Convention”18, while immigration officers not involved in
refugee
determination but engaged in administering the Immigration Act 1987
generally, must “have regard to” the Convention when making decisions
in relation to a refugee or a refugee status claimant.19
While this
may not be quite what Oscar Wilde had in mind when he observed
that:
it is remarkable that
Parliament has in this legislation replicated the
public law divide between the two conceptual models applied to
unincorporated treaty obligations and vividly illustrates why the
mandatory relevant consideration model is undoubtedly of a
qualitatively inferior kind to the consistency model.21
[10] But the purpose of this
paper is not to explore the point.
Rather, it is to describe how the Refugee Status Appeals Authority
(“RSAA”) has interpreted and applied its statutory duty to act in a
manner consistent with New Zealand’s obligations under the Refugee
Convention. As will be seen, it has used s 129D of the
Immigration Act 1987 to import into domestic law the human rights
standards contained in the Universal Declaration of Human Rights, 1948
(“UDHR”), the International Covenant on Civil and Political Rights,
1966 (“ICCPR”), the International Covenant on Economic, Social and
Cultural Rights, 1966 (“ICESCR”), the Convention on the Elimination of
All Forms of Racial Discrimination, 1966 (“CERD”), the Convention on
the Elimination of Discrimination Against Women, 1979 (“CEDAW”) and the
Convention on the Rights of the Child, 1989 (“CRC”). The
application by the RSAA of an international human rights standard in
refugee determination is the point of difference between the
Authority’s decision in Refugee
Appeal No. 74665/03 (7 July 2004) and
the problematical, if not controversial, decision of the High Court of
Australia in Appellant S395/2002 v
Minister for Immigration and
Multicultural Affairs.22 Both
decisions address the question of how
one determines whether the denial of a fundamental human right can
sensibly be described as a risk of being persecuted and thus satisfy
the refugee definition. While the outcome in both cases was the
same (homosexuals cannot be expected to deny their sexual orientation),
the New Zealand approach analysed the issue within a framework of
international human rights. The Australian analysis made no
reference to human rights.
[11] Before explaining the
Authority’s interpretive approach to the
Refugee Convention it is necessary to examine briefly the relevant
provisions of the Immigration Act 1987.
[12] The New Zealand refugee status
determination procedures were
placed on a statutory footing by the Immigration Amendment Act 1999.23
[13] The 1999 Amendment Act
provides two statements of the object of
the new Part 6A on “Refugee Determinations” which it introduced.
According to the long title, it is an Act to:
[14] However, as recognised in Attorney-General v E24,
s 129A puts the
matter more broadly:
[15] The major substantive
provisions aimed at giving effect to the
Refugee Convention are ss 129C, 129D and 129X:
[16] Sections 129F and 129L also
require determinations to be made in
accordance with particular aspects of the definition of refugee status
set out in Articles 1C, 1D, 1E and 1F of the Refugee Convention.
[17] However, the only
provisions of the Refugee Convention directly
incorporated into domestic law are those identified in s 129X(1) namely
Article 32(1) and Article 33(2). In Attorney-General v Refugee
Council of New Zealand Inc McGrath J, while describing the 1999
provisions as giving the Refugee Convention legislative effect and
incorporating it into New Zealand’s domestic law, nevertheless drew
attention to the fact that s 129X(1) makes a distinction between
direct and indirect implementation25:
[18] Because the plain general
purpose and effect of ss 129A, 129C,
129D and 129X is to ensure compliance with the Refugee Convention,26
which has thereby been given legislative effect in New Zealand,27 the
RSAA has not found it necessary to give s 129D detailed
consideration. In fact the provision has been referred to in only
two decisions of the RSAA, and even then, only in passing.28
However, the unarticulated yet unmistakably clear premise of the
Authority’s jurisprudence post 1 October 1999 has been that the terms
of the Refugee Convention and Protocol govern the making of refugee
determinations in New Zealand.
[19] To discharge the statutory duty
to act in a manner consistent with
New Zealand’s obligations under the Refugee Convention, the RSAA has
applied to the Refugee Convention, not the Interpretation Act 1999, but
the principles of customary international law applicable to the
interpretation of treaties. This is because the Vienna Convention
on the Law of Treaties, 1969 (“Vienna Convention”) post-dates the
Refugee Convention and is therefore inapplicable.29
However, as the
Vienna Convention constitutes an authoritative statement of customary
public international law on the interpretation of treaties, the
Vienna Convention is referred to by the RSAA as a matter of convenience.30
[20] The general rule of
interpretation is contained in Article 31 of
the Vienna Convention and requires that a treaty 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 the light of its object and
purpose. The context includes, in addition to the text, the
preamble.31 Significantly, the opening
recital of the Preamble to
the Refugee Convention states:
[21] Particular note is to be taken
of the explicit reference to the
UDHR.
[22] Application of the
holistic “terms, context, object and purpose”
rule to the “being persecuted” limb of the refugee definition led the
Supreme Court of Canada in Canada
(Attorney General) v Ward32 to conclude
that underlying the Refugee Convention is the commitment of the
international community to the assurance of basic human rights without
discrimination. In so holding, the Supreme Court explicitly drew
on the first recital in the Preamble33:
[23] The relevance of the Preamble
to the interpretation of the Refugee
Convention was also recognised in R
v Immigration Appeal Tribunal; Ex
parte Shah34. Lord Steyn described
the Preamble as significant for
expressly showing that the premise of the Refugee Convention was that
all human beings shall enjoy fundamental rights and freedoms and more
pertinently, they show that counteracting discrimination was a
fundamental purpose of the Convention.35 In
the same case Lord
Hoffman stated36:
[24] Drawing on these principles the
RSAA has for some number of years
followed the understanding of “being persecuted” articulated by
Professor Hathaway in The Law of
Refugee Status37, namely that refugee
law ought to concern itself with actions which deny human dignity in
any key way and that the sustained or systemic denial of core human
rights is the appropriate standard. In other words, core norms of
international human rights law are relied on to define forms of serious
harm within the scope of being persecuted.38
This is also the
approach now taken in the United Kingdom.39
[25] The human rights approach
to “being persecuted” has been applied
by the RSAA in a number of different contexts including sexual
orientation40; gender based persecution41; racial discrimination42 and
in
relation to privacy, religion and family rights.43
[26] Recognising that “being
persecuted” may be defined as the
sustained or systemic violation of basic human rights demonstrative of
a failure of state protection, the question which arises is how one
identifies “basic human rights”.
[27] The Authority has found
customary international law of limited
assistance primarily due to the difficulty in establishing the two
essential elements (State practice and opinio juris) and because only a
small handful of human rights can be established in customary
international law.44
[28] Instead, the Authority has
relied on international human rights
treaties principally because the Preamble reference to the UDHR
provides guidance as to the human rights to which reference should be
made in the determination of refugee status. Since the human
rights enunciated in the UDHR were subsequently translated into binding
treaty form by the ICCPR and the ICESCR, the three instruments must be
read together. It follows that on accepted principles of treaty
interpretation the phrase “being persecuted” is appropriately to be
understood against the background of these norms. Professor
Hathaway in his Law of Refugee Status
explains the point in the
following terms45:
[29] Returning to the subject in an
address given in 1998 in Ottawa to
the International Association of Refugee Law Judges, Professor Hathaway
points out that reliance on core norms of international human rights
law (as contained in treaties) to define forms of serious harm within
the scope of “being persecuted” is not only compelled as a matter of
law, but makes good practical sense, for at least three reasons46:
1. We must look at how states themselves
have defined
unacceptable infringements of human dignity if we want to know which
harms they are truly committed to defining as impermissible.
Human rights law is precisely the means by which states have undertaken
that task.
2. Refugee decision-makers who use human rights law
to define harms within the scope of “being persecuted” are not
combatting the views of governments, but rather relying on the very
standards which governments have said to be minimum standards.
This is what he calls a dynamic “dialogue of justification”.
3. International human rights law provides refugee
law judges with an automatic means - within the framework of legal
positivism and continuing accountability - to contextualise and update
standards in order to take new problems into account. Because
international human rights law is constantly being authoritatively
interpreted through a combination of general comments, decisions on
individual petitions, and declarations of UN plenary bodies, there is a
wealth of wisdom upon which refugee decision-makers can draw to keep
the Convention refugee definition alive in changing
circumstances. This flexibility of international human rights law
makes it possible to address new threats to human dignity through
refugee law, but to do so without asserting either subjective or
legally ungrounded perceptions of “what’s right, and what’s wrong”.
[30] Elaborating on the
capacity of international human rights law to
update itself, Professor Hathaway went on to suggest that while his Law
of Refugee Status (1991) restricted itself to the UDHR, the
ICCPR and
the ICESCR, with the benefit of nearly (then) eight years of progress
on human rights law, he acknowledged that one could today interpret
“being persecuted” by reference to an enlarged set of international
human rights instruments. However, he cautioned that one should
not rush to embrace every new Convention on human rights, much less
mere declarations or statements of principle as legally relevant to
defining harms within the scope of “being persecuted”. In
his IARLJ paper he said47:
[31] Conceding that drawing the
bright line is not a simple task,
Professor Hathaway made the following suggestions in his address48:
[32] Applying this test Professor
Hathaway was of the view that one
could today interpret “being persecuted” by reference not only to the
International Bill of Rights, but also by consideration of CERD, CEDAW
and CRC.
[33] These views were adopted
by the RSAA in Refugee Appeal No.
71427/99.49 In so doing it explicitly
rejected the claims made by
some that such approach will lead to ossification50
or to an
impermissibly narrow reading of “being persecuted”.51
The RSAA
stressed that international human rights instruments are “living
instruments”, constantly evolving and developing, as has been expressly
recognised by the European Court of Human Rights in Goodwin v United
Kingdom where the following observations were made in the
context of
the non-recognition in English law of gender reassignment and the
failure by the United Kingdom to comply with its positive obligation to
ensure the applicants’ right to respect for their private lives52:
[34] The same interpretive approach
has been explicitly recognised as
appropriate in the context of the Refugee Convention. In Sepet v
Secretary of State for the Home Department Lord Bingham (with
whom
Lords Steyn, Hutton and Rodger agreed) said53:
Indeed Sepet is notable for the fact that
a claim to refugee status
based on a refusal to perform compulsory military service in the
Turkish Army on conscientious grounds was determined by reference to
international human rights norms.
[35] A further point made
by the RSAA is that the universality of
the ICCPR, ICESCR, CERD, CEDAW and the CRC will not permit social,
cultural or religious practices in a country of origin from escaping
assessment according to international human rights standards.54
[36] The Authority’s decisions
have also recognised that in addition to
employing the international human rights instruments referred to, it is
only appropriate that regard be had to the interpretation of those
instruments by the “treaty bodies” set up under the instruments,
particularly the Human Rights Committee, the Committee on Economic,
Social and Cultural Rights, the Committee on the Elimination of all
Forms of Discrimination Against Women, the Committee on the Elimination
of Racial Discrimination and of the Committee on the Rights of the
Child. The RSAA has given recognition to the fact that the
binding effect and jurisprudential quality of the decisions of these
bodies may be a matter of controversy.55 But
the decisions
(“views”) of the Human Rights Committee can be at least of persuasive
authority.56
Four
qualifications
[37] Qualifications must,
however, be noted.
[38] First, in the context of
Article 1A(2) of the Refugee Convention,
the identification of basic human rights is directed to a single,
limited end, namely the illumination of the meaning of the phrase
“being persecuted”. There is no other purpose. The function
of refugee law is palliative.
It does not hold states responsible
for human rights abuses. The determination of refugee status is
no more than an assessment whether, in the event of the refugee
claimant being returned to the country of origin, there is a real
chance of that person “being persecuted” for a Convention reason.57
[39] Second, only a highly
select group of human rights treaties are to
be the point of reference.58 This avoids the
danger of
over-inclusion. As Philip Alston points out, new “rights” can be
claimed with little thought, debate or agreement. Not everything
that may serve to improve the well-being of individuals can or should
be accepted as a human right.59
[40] Third, the intention of
the drafters was not to protect persons
against any and all forms of even serious harm, but was rather to
restrict refugee recognition to situations in which there was a risk of
a type of injury that would be inconsistent with the basic duty of
protection owed by a state to its own population.60
As Professor
Hathaway explains61:
[41] Fourth, few rights are
expressed in absolute terms. Under
the international human rights instruments earlier listed, the exercise
of many rights may be restricted. Examples drawn from the ICCPR
include freedom of movement (Article 12), freedom of religion (Article
18), freedom of expression (Article 19), right of peaceful assembly
(Article 21) and freedom of association (Article 22). Each of
these Articles contains a clause subjecting the particular right to
(inter alia) “the rights and freedoms of others”. There are other
limitations but they need not be noted here.62
These limitations
recognise that since an individual lives in society with other
individuals, the exercise of rights by one person must necessarily be
regulated, and restricted to the extent necessary, to enable others to
exercise their rights. The principle is encapsulated in Article
29 of the UDHR which explicitly recognises that everyone has duties to
the community in which alone the free and full development of his or
her personality is possible. In the exercise of his or her rights
and freedoms, everyone is subject to limitations for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society.63
Striking illustration of the application of this principle is to be
found in the recent decisions of the European Court of Human Rights in
Refah Partisi (Welfare Party) v Turkey64 and Leyla
Sahin v Turkey.65
[42] Sometimes an applicant for
refugee status will base his or her
claim on the risk that would accrue in the country of origin if he or
she were to engage in an activity there which should arguably be
allowed as a legitimate exercise of basic, internationally recognised
human rights. These cases have frequently proved troubling and
difficult, and have usually been resolved with no clear articulation of
relevant legal principles.66
[43] A striking example is
provided by the recent decision of the High
Court of Australia in Appellant
S395/2002 v Minister for Immigration
and Multicultural Affairs.67 That
case involved a refugee claim by
two gay Bangladeshi men who feared serious harm in Bangladesh by virtue
of their homosexuality. The High Court split over the
interpretation of the Refugee Review Tribunal decision, the minority
(Gleeson CJ, Callinan & Heydon JJ) being of the view that nothing
unexceptional could be detected in the decision, while the majority
(McHugh, Kirby, Gummow & Hayne JJ) interpreted the decision as
saying that refugee claimants are required, or can be expected, to take
reasonable steps to avoid persecutory harm. Thus it was
reasonable for a homosexual person in Bangladesh to conform to the laws
of Bangladesh society and to act discretely, rather than living openly
as a homosexual. In their joint judgment Gummow & Hayne JJ
explicitly rejected the human rights approach to understanding “being
persecuted”. The joint decision of McHugh and Kirby JJ is notable
for the absence of any meaningful discussion of “being
persecuted”.68 They simply asserted that it
would undermine the
objective of the Refugee Convention if refugee claimants were required
to modify their beliefs or opinions or to hide their race, nationality
or membership of particular social groups before they were given
protection under the Convention.69 While one
would readily agree
with this statement, it is nevertheless a statement of a conclusion and
the joint judgment offers no principled explanation as to why behaviour
should not have to be modified or hidden. Both majority judgments fold
the enquiry into the single issue of well-foundedness - is the person
at real risk of harm? If the answer is in the affirmative,
refugee status follows. The decision-maker does not analyse the
nature and content of the human right being asserted.
[44] By way of contrast, in its
recent decision in Refugee Appeal
No.
74665/03 (7 July 2004) the RSAA has held (in relation to a
refugee
claim by an Iranian homosexual) that understanding the predicament of
“being persecuted” as the sustained or systemic violation of basic
human rights demonstrative of a failure of state protection means that
the refugee definition is to be approached not from the perspective of
what the refugee claimant can do to avoid being persecuted, but from
the perspective of the fundamental human right in jeopardy and the
resulting harm.70 If the right proposed to
be exercised by the
refugee claimant in the country of origin is at the core of the
relevant entitlement and serious harm is threatened, it would be
contrary to the language context, object and purpose of the Refugee
Convention to require the refugee claimant to forfeit or forego that
right and to be denied refugee status on the basis that he or she could
engage in self-denial or discretion on return to the country of origin;
or, to borrow the words of Sachs J in National
Coalition for Gay and
Lesbian Equality v Minister of Justice, to exist in a state of
induced
self-oppression.71 By requiring the refugee
applicant to abandon a
core right the refugee decision-maker is requiring of the refugee
claimant the same submissive and compliant behaviour, the same denial
of a fundamental human right, which the agent of persecution in the
country of origin seeks to achieve by persecutory conduct. The
potential complicity of the refugee decision-maker in the refugee
claimant’s predicament of “being persecuted” in the country of origin
must be confronted. The issue cannot be evaded by dressing the
problem in the language of well-foundedness, that is, by asserting that
the claim is not a well-founded one because the risk can or will be
avoided.
[45] To determine whether the
threat of serious harm faced by the
particular refugee claimant in Iran could properly be described as a
risk of being persecuted, the RSAA embarked on an extended analysis of
sexual orientation as a human right. It noted that while sexual
orientation is not explicitly recognised or mentioned as a human rights
category in any of the human rights instruments to which reference has
been made, sexual orientation has nevertheless been recognised as
engaging the non-discrimination provisions of Articles 2(1) and 26 of
the ICCPR.72 In this respect the RSAA
applied the decision of the
Human Rights Committee in Toonen v
Australia which had found the
Tasmanian laws criminalising sexual relations between consenting adult
males violated Mr Toonen’s rights under Article 17(1) read in
conjunction with Article 2(1) of the ICCPR in that the prohibition by
law of consensual homosexual acts in private is a violation of the
right to privacy.73 In exploring the limits
of the right to privacy
the Authority also drew on Joslin v
New Zealand74, Fretté v France75
and a range of other decisions from the European Court of Human Rights
which address not only the issue of non-discrimination but also the
right to privacy.76 The Authority also drew
on the decision
of the Constitutional Court of South Africa in National Coalition for
Gay and Lesbian Equality v Minister of Justice, particularly the
judgment given by Sachs J who emphatically rejected the dichotomy
between equality and privacy in the context of anti-sodomy laws.77
The RSAA has expressed the view that in the refugee context the
equality principle (enshrined in Article 26 of the ICCPR) cannot
lightly put aside, given the centrality of the non-discrimination
principle to the refugee definition, and the reference in the first
recital of the Preamble to the Refugee Convention to the UDHR and its
proclamation of the principle of the equality of all human beings.78
[46] The conclusions reached by
the RSAA on voluntary but protected
action follow79:
[115]
The human rights standard requires the
decision-maker to determine first, the nature and extent of the right
in question and second, the permissible limitations which may be
imposed by the state. Instead of making intuitive assessments as
to what the decision-maker believes the refugee claimant is entitled to
do, ought to do (or refrain from doing), instead of drawing on
dangerously subjective notions of “rights”, “restraint”, “discretion”
and “reasonableness”, there is a structure for analysis which, even
though it may not provide the answer on every occasion, at least
provides a disciplined framework for the analysis. A framework
which is principled, flexible, politically sanctioned and genuinely
international. Under the human rights approach, where the risk is
only that activity at the margin of a protected interest is prohibited,
it is not logically encompassed by the notion of “being
persecuted”. A prohibition is to be understood to be within the
ambit of a risk of “being persecuted” if it infringes basic standards
of international human rights law. Where, however, the substance
of the risk does not amount to a violation of a right under applicable
standards of international law, it is difficult to understand why it
should be recognised as sufficient to give rise to a risk of “being
persecuted”.
[47] In broad terms the difference
between the RSAA and the majority in
Appellant S395/2002 could be said to be about the location of
the
analysis. Is it in the “being persecuted” element or in the
well-founded element? The RSAA unambiguously took as its starting
point the “being persecuted” element as it allows identification of the
boundaries set by international human rights law for both the
individual and the state. Once those boundaries have been
identified it is possible to determine whether the proposed action by
the claimant is at the core of the right or at its margins and whether
the prohibition or restriction imposed by the state is lawful in terms
of international human rights law. If the proposed action by the
refugee claimant is at the core of the right and the restriction
unlawful, the claimant has no duty to avoid the harm by being discrete
or by complying with the wishes of the persecutor. If, however,
the proposed activity is at the margin of the protected interest, then
persistence in the activity in the face of the threatened harm is not a
situation of “being persecuted” for the purposes of the Refugee
Convention. The individual can choose to carry out the intended
conduct or to act “reasonably” or “discretely” in order to avoid the
threatened serious harm. None of these choices, however, engages
the Refugee Convention.80
[48] The jurisprudence of the RSAA
is a striking, if not unique, example of the domestic application of
international human rights standards. That jurisprudence is
qualitatively different to that found in cases which address the use of
international materials in the interpretation of domestic statutes (as
recently occurred in Attorney-General
v Refugee Council of New Zealand
Inc81). If and when the body of RSAA
jurisprudence comes to be
considered by the New Zealand courts on judicial review it will present
special challenges. The dual system doctrine and the absence of
an equivalent to the Human Rights Act 1998 (UK) duty on public
authorities to act compatibly with a human rights convention means that
the New Zealand courts have yet to be exposed to the issues which daily
confront refugee decision-makers.82
1.
The author is a member of the Refugee Status Appeals Authority.
The opinions expressed are the personal views of the author. The
decisions of the Refugee Status Appeals Authority cited in this paper
may be accessed at the Case Search page of the New Zealand Refugee Law website
<http://www.refugee.org.nz> and at the website of the Refugee
Status Appeals Authority <http://www.nzrefugeeappeals.govt.nz>.
2.
Refugee Convention, Article 33(1). The benefit of this 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 or she is, or who, having been convicted by a final judgment
of a particularly serious crime, constitutes a danger to the community
of that country: Article 33(2).
3.
Ashby v Minister of Immigration
[1981] 1 NZLR 222, 224 line 15 (Cooke J), 229 line 1 (Richardson J)
(CA); New Zealand Air Line Pilots’
Association Inc v Attorney-General [1997] 3 NZLR 269, 280 (CA),
both of which decisions cite Attorney-General
for Canada v Attorney-General for Ontario [1937] AC 326, 347
(PC).
4.
Nor does this paper explore the far broader issue of the degree to
which human rights norms are challenging sovereignty in the New
Zealand immigration context. For a recent examination of
Australian and English case law which suggests that in those two
countries the rule of law may be emerging as a counter to traditional
executive free reign in matters of immigration law, see Catherine
Dauvergne, “Sovereignty, Migration and the Rule of Law in Global Times”
(2004) 67 (4) MLR 588. A more detailed study is to be found in
Nicholas Blake & Raza Husain, Immigration,
Asylum and Human Rights (Oxford, 2003).
5.
Minister for Immigration and Ethnic
Affairs v Teoh (1995) 183 CLR 273 (HCA).
6.
Contrast Justice AM North & Peace Decle, “Courts and immigration
detention: ‘Once a jolly swagman camped by a billabong’” (2002) 10 AJ
Admin L 5 with Justice Michael Kirby, “Chief Justice Nicholson,
Australian Family and International Human Rights” (2004) 5 Melbourne
Journal of International Law 221 and Wendy Lacey, “Judicial Discretion
and Human Rights: Expanding the Role of International Law in the
Domestic Sphere” (2004) 5 Melbourne Journal of International Law 108.
7.
Lawrence v Texas (2003) 156 L
Ed 2d 508, 522, 524 (Kennedy J).
8.
Ibid, 539 and see the general attack on the reference by the majority
to the jurisprudence of the European Court of Human Rights as noted by
Roger P Alford, “Federal Courts, International Tribunals, and the
Continuum of Deference: A Postscript on Lawrence v Texas” 44 Va J Int’l L
913, 924 fn 72.
9.
Roger P Alford, “Federal Courts, International Tribunals, and the
Continuum of Deference: A Postscript on Lawrence v Texas” 44 Va J Int’l L
913, 926 & 929.
10.
Anne Warner La Forest, “Domestic Application of International Law in Charter Cases: Are We There Yet?”
(2004) 37 UBC Law Review 157, 160-162; 210-216.
11.
Tavita v Minister of Immigration
[1994] 2 NZLR 257 (CA).
12.
Claudia Geiringer, “Tavita and
all that: Confronting the Confusion Surrounding Unincorporated Treaties
and Administrative Law” (2004) 21 NZULR 66.
13.
The New Zealand Bill of Rights Act 1990, s 6 provides:
6.
Interpretation consistent with Bill of Rights to be preferred -
Wherever an enactment can be given a meaning that is consistent with
the rights and freedoms contained in this Bill of Rights, that meaning
shall be preferred to any other meaning.
See Janet McLean, Paul
Rishworth & Michael Taggart, “The Impact of the New Zealand Bill of
Rights on Administrative Law” Legal Research Foundation, The New Zealand Bill of Rights Act 1990
(August 1992) 62.
14.
New Zealand Air Line Pilots’
Association Inc v Attorney-General [1997] 3 NZLR 269, 280 (CA).
15.
Sellers v Maritime Safety Inspector
[1999] 2 NZLR 44, 57 (CA).
16.
Wellington District Legal Services
Committee v Tangiora [1998] 1 NZLR 129, 137 (CA) affirmed on
other grounds in Tangiora v
Wellington District Legal Services Committee [2000] 1 NZLR 17
(PC).
17.
New Zealand Air Line Pilots’
Association Inc v Attorney-General [1997] 3 NZLR 269, 289 (CA).
18.
Immigration Act 1987, s 129D. “Refugee Convention” means the
United Nations Convention Relating to the Status of Refugees, done at
Geneva on the 28th day of July 1951; and includes the Protocol Relating
to the Status of Refugees done at New York on the 31st day of January
1967: s 2(1) definition of “Refugee Convention”. In this paper
the Convention and the Protocol will be referred to as the “Refugee
Convention”.
19.
Immigration Act 1987, s 129X(2).
20.
Intentions (1891) “The Decay
of Lying” reproduced in The Oxford
Dictionary of Quotations 4th ed (1992) 735.
21.
Claudia Geiringer, “Tavita
and all that: Confronting the Confusion Surrounding Unincorporated
Treaties and Administrative Law” (2004) 21 NZULR 66, 82-85.
22.
Appellant S395/2002 v Minister for Immigration and Multicultural
Affairs (2003) 203 ALR 112 (McHugh, Kirby, Gummow & Hayne JJ;
Gleeson CJ, Callinan & Heydon JJ dissenting).
23.
The new Part 6A of the Immigration Act 1987 came into force on 1
October 1999. See the Immigration Amendment Act 1999, s
1(3). The context of the statutory amendments is reviewed in
Rodger Haines, “International Law and Refugees in New Zealand” [1999]
NZ Law Review 119.
24.
Attorney-General v E [2000] 3 NZLR 257 at [28] & [29] (CA)
(Richardson P, Gault, Henry & Keith JJ) Thomas J in his separate
decision at [73] agreed with the majority on this point, stating that
the Act is explicit in spelling out the overriding obligation to act in
a manner which is consistent with Part 6A and the Refugee
Convention. The Convention and Protocol are given explicit
recognition in s 129A.
25.
Attorney-General v Refugee Council of New Zealand Inc [2003] 2
NZLR 577 at [93], [97] & [103] (CA) (McGrath J).
26.
Attorney-General v E [2000] 3
NZLR 257 at [33] (CA) (Richardson P, Gault, Henry & Keith JJ);
Thomas J at [73] agreeing.
27.
Attorney-General v Refugee Council of
New Zealand Inc [2003] 2 NZLR 577 at [93] & [97] (CA)
(McGrath J).
28.
See Refugee Appeal No. 71864/00
(2 June 2000) at [25]; Refugee
Appeal No. 72635/01 (6 September 2002); [2003] INLR 629 at [177].
29.
Article 4 of the Vienna Convention on the Law of Treaties, 1969
provides:
Article 4
Non-retroactivity
of the present Convention.
Without prejudice to the
application of any rules set forth in the present Convention to which
treaties would be subject under international law independently of the
Convention, the Convention applies only to treaties which are concluded
by States after the entry into force of the present Convention with
regard to such States.
30.
See most recently Refugee Appeal No.
74665/03 (7 July 2004) at [43] - [50]. The High Court of
Australia has held that in construing the text of an international
convention set out in the schedule to an Act, regard should be had to
the Vienna Convention on the Law of Treaties: Commonwealth v Tasmania (1983) 158
CLR 1, 93 (Gibbs CJ) and 222-3 (Brennan J) (HCA). More recently
in Morrison v Peacock (2002)
192 ALR 173 at [16] (HCA) the High Court, in applying the Vienna
Convention on the Law of Treaties, noted that treaties should be
interpreted in a more liberal manner than that ordinarily adopted by a
court construing exclusively domestic legislation. In so holding
it referred to two of its leading decisions interpreting the Refugee
Convention. In Sepet v
Secretary of State for the Home Department [2003] 1 WLR 856 (HL)
at [6] Lord Bingham (with whom Lords Steyn, Hutton and Rodger agreed)
stated that interpreting the Refugee Convention one must respect
Articles 31 and 32 of the Vienna Convention on the Law of Treaties,
1969. See generally Paul Reuter, Introduction to the Law of Treaties
(Pinter Publishers, 1989) at [62] and Anthony Aust, Modern Treaty Law and Practice
(Cambridge, 2000) 8-11.
31.
Vienna Convention on the Law of Treaties, 1969 Article 31(2).
32.
Canada (Attorney General) v Ward
[1993] 2 SCR 689 (SC:Can).
33.
Ibid, 733.
34.
R v Immigration Appeal Tribunal; Ex
parte Shah [1999] 2 AC 629 (HL).
35.
Ibid, 638-639.
36.
Ibid, 650-651.
37.
James C Hathaway, The Law of Refugee
Status (Butterworths, 1991) 104 & 108.
38.
See for example Refugee Appeal No.
71427/99 [2000] NZAR 545; [2000] INLR 608 at [51]. This
approach was approved in DG v
Refugee Status Appeals Authority (High Court Wellington,
CP213/00, 5 June 2001, Chisholm J) at [19] and [22].
39.
Horvath v Secretary of State for the
Home Department [2001] 1 AC 489, 495F, 501C, 512F, 517D (HL).
40.
Refugee Appeal No. 1312/93 Re GJ
(30 August 1995); [1998] INLR 387.
41. Refugee Appeal No. 2039/93 Re MN
(12 February 1996) and Refugee
Appeal No. 71427/99 (16 August 2000); [2000] NZAR 545; [2000]
INLR 608.
42.
Refugee Appeal No. 71404/99
(29 October 1999).
43.
Refugee Appeal No. 72558/01
(19 November 2002).
44.
Refugee Appeal No. 74665/03 (7
July 2004) at [63].
45.
James C Hathaway, Law of Refugee
Status (Butterworths, 1991) 106.
46.
James C Hathaway, “The Relationship Between Human Rights and Refugee
Law: What Refugee Law Judges Can Contribute” in IARLJ, The Realities of Refugee Determination on
the Eve of a New Millennium: The Role of the Judiciary (1998)
80, 85.
47.
Ibid, 86.
48.
Ibid, 86.
49.
Refugee Appeal No. 71427/99
[2000] NZAR 545; [2000] INLR 608 at [51].
50.
Catherine Dauvergne and Jenni Millbank, “Applicants S396/2002 and S395/2002, a gay
refugee couple from Bangladesh” (2003) 25 Sydney Law Review 97,
111-112.
51.
See Volker Türk & Frances Nicholson, “Refugee Protection in
International Law: An Overall Perspective” at 38-39 and Alice Edwards,
“Age and Gender Dimensions in International Refugee Law” at 50 &
66-67 in Feller, Türk & Nicholson (eds), Refugee Protection in International Law:
UNHCR’s Global Consultations on International Protection
(Cambridge, 2003).
52.
Goodwin v United Kingdom
(2002) 35 EHRR 18 at [74] (ECHR).
53.
Sepet v Secretary of State for the
Home Department [2003] 1 WLR 856; [2003] 3 All ER 304 (HL) at
[6].
54.
This is fully explained in Refugee
Appeal No. 2039/93 Re MN (12 February 1996) at pp 19-28 and Refugee Appeal No. 71427/99 [2000]
NZAR 545; [2000] INLR 608 at [52].
55.
See Refugee Appeal No. 72558/01
(19 November 2002). Contrast the views expressed by Elizabeth
Evatt, a member of the Human Rights Committee, in “The Impact of
International Human Rights on Domestic Law” in Huscroft &
Rishworth, Litigating Rights:
Perspectives from Domestic and International Law (Hart
Publishing, 2002) at 281, 295, 302 with the views expressed in two
other papers published in the same text, namely Paul Rishworth, “The
Rule of International Law?” op cit
267, 274 - 279 and Scott Davidson, “Intention and Effect: The Legal
Status of the Final Views of the Human Rights Committee” op cit 305-321.
56.
R v Goodwin (No. 2) [1993] 2
NZLR 390, 393 (CA) and Minister for
Immigration and Multicultural and Indigenous Affairs v B (2004)
206 ALR 130 (HCA) at [148] (Kirby J). See further Wellington District Legal Services
Committee v Tangiora [1998] 1 NZLR 129, 134-136, 144 (CA) and Tangiora v Wellington District Legal
Services Committee [2000] 1 NZLR 17, 20-22; [2000] 1 WLR 240,
244-246 (PC). Contrast Briggs
v Baptiste [2000] 2 AC 40, 53 (PC) where, in the context of the
Inter-American system the point made was that while it is to be
expected that national courts will give great weight to the
jurisprudence of the Inter-American Court, “they would be abdicating
their duty if they were to adopt an interpretation of the [American]
Convention [on Human Rights, 1969] which they considered to be
untenable”. For observations as to the binding effect of
decisions of the Committee against Torture, see Ahani v Canada (Attorney General)
(2002) 208 DLR (4th) 66 at paras 34-40 (Ont. CA).
57.
Refugee Appeal No. 74665/03 (7
July 2004) at [75].
58.
Ibid, [76].
59.
Philip Alston, “Conjuring Up New Human Rights: A Proposal for Quality
Control” (1984) Am. J. Int’l L 613.
60.
Refugee Appeal No. 74665/03 (7
July 2004) at [77].
61.
James C Hathaway, The Law of Refugee
Status (Butterworths, 1991) 103-104.
62.
Refugee Appeal No. 74665/03 (7
July 2004) at [85] & [122] - [123]. See generally Douglas
Hodgson, Individual Duty Within a
Human Rights Discourse (Ashgate, 2003); Nihal Jayawickrama, The Judicial Application of Human Rights
Law - National, Regional and International Jurisprudence
(Cambridge, 2002), Chapter 7 and Sir John Laws, “Human Rights and
Citizenship” (2004) 55 NILQ 1.
63.
Article 29 of the UDHR provides:
(1) Everyone
has duties to the community in which alone the free and full
development of his personality is possible.
(2) In the
exercise of his rights and freedoms, everyone shall be subject only to
such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society.
(3) These
rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.
64.
Refah Partisi (Welfare Party) v Turkey
(Application No. 41340/98, 13 February 2003) (Grand Chamber) (ECHR).
65.
Leyla Sahin v Turkey
(Application No. 44774/98, 29 June 2004) (Fourth Section) (ECHR).
66.
Haines, Hathaway & Foster, “Claims to Refugee Status Based on
Voluntary but Protected Actions” (2003) 15 IJRL 430.
67.
Appellant S395/2002 v Minister for
Immigration and Multicultural Affairs (2003) 203 ALR 112 (HCA).
68.
Ibid, [83]:
69.
Ibid, [40] & [41].
70.
Refugee Appeal No. 74665/03 (7
July 2004) at [81]-[90].
71.
National Coalition for Gay and
Lesbian Equality v Minister of Justice 1999 (1) SA 6 at [130].
72.
Refugee Appeal No. 74665/03 (7
July 2004) at [92].
73.
Ibid, [97]; Toonen v Australia
(Comm No 488/1992, UN Doc CCPR/C/50/D/488/ 1992, 4 April 1994) (HRC).
74.
Joslin v New Zealand (Comm No
902/1999, UN Doc CCPR/C/75/D/902/ 1999, 30 July 2002) (HRC).
75.
Fretté v France [2004]
38 EHRR 21 (ECHR).
76.
See for example Dudgeon v United
Kingdom (1981) 4 EHRR 149 (ECHR), Lustig-Prean and Beckett v United Kingdom
(2000) 31 EHRR 601 (ECHR) and Smith
and Grady v United Kingdom (1999) 29 EHRR 493 (ECHR).
77.
National Coalition for Gay and
Lesbian Equality v Minister of Justice 1999 (1) SA 6.
78.
R v Immigration Appeal Tribunal; Ex
parte Shah [1999] 2 AC 629 (HL), 639D per Lord Steyn and Refugee Appeal No. 74665/03 (7 July
2004) at [114].
79.
Refugee Appeal No. 74665/03 (7
July 2004) at [114] & [115].
80.
Ibid, [120].
81.
Attorney-General v Refugee Council of
New Zealand Inc [2003] 2 NZLR 577 (CA) noted by Treasa Dunworth,
“Public International Law” [2004] NZ Law Review 411, 415-418.
82.
For an interesting account of the early challenges faced by the English
judiciary under the Human Rights Act 1998 (UK) in the immigration and
asylum context, see Nicholas Blake & Raza Husain, Immigration, Asylum and Human Rights (Oxford,
2003) 1-17.