Zaoui v Attorney-General (No 2)

Zaoui v Attorney-General (No 2)
Court	Supreme Court of New Zealand
Decided	21 June 2005
Citation(s)	[2005] NZSC 38; [2006] 1 NZLR 289
Transcript(s)	Available here
Case history
Prior action(s)	High Court [2004] 2 NZLR 339; Court of Appeal [2005] 1 NZLR 690.
Court membership
Judge(s) sitting	Elias CJ, Gault, Keith, Blanchard and Eichelbaum JJ
Keywords
Immigration, Refugees, Human Rights, National security

Zaoui v Attorney-General (No 2) was the final judicial decision concerning Algerian refugee Ahmed Zaoui before the objections of the Security Intelligence Service concerning Zaoui's alleged threat to national security were withdrawn in September 2007, allowing him to remain in New Zealand. The judgment of the Supreme Court of New Zealand was concerned with the proper interpretation of article 33 of the United Nations Convention Relating to the Status of Refugees 1951 and section 72 of the Immigration Act 1987.

Judgment

Justice Keith delivered the Supreme Court's judgment.

Article 33, Convention Relating to the Status of Refugees

The Court began by noting that as Zaoui had been granted refugee status by the Refugee Status Appeals Authority in 2003 he was protected by article 33, paragraph 1, of the United Nations Convention Relating to the Status of Refugees 1951:

1. 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.

However paragraph 2 of article 33 states that the benefit of this protection may not 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, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

In conclusion on this point the Court held,

We accordingly conclude that the judgment or assessment to be made under art 33.2 is to be made in its own terms, by reference to danger to the security, in this case, of New Zealand, and without any balancing or weighing or proportional reference to the matter dealt with in art 33.1, the threat, were Mr Zaoui to be expelled or returned, to his life or freedom on the proscribed grounds or the more specific rights protected by the New Zealand Bill of Rights Act 1990 read with the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Paragraph 2 of art 33 of the Refugee Convention states a single standard.

Part 4A, Immigration Act 1987

Part 4A of the Immigration Act concerned the use of security information in immigration situations and set out the powers of the Director of Security in issuing a Security Risk Certificate and the process of appeal to the Inspector-General of Intelligence and Security. Counsel for Zaoui, Rodney Harrison QC, had submitted to the court that in doing their review, the Inspector-General is, "obliged to determine the potential adverse consequences for the individual; those consequences are then to be weighed against the claimed danger to the security of New Zealand."

The Court held, on the contrary to Harrison's submission, that there was no obligation by the Inspector-General to consider any threat to Zaoui at this stage of the process:

[W]e conclude that in carrying out his function under Part 4A of the Immigration Act the Inspector-General is concerned only to determine whether the relevant security criteria – here s 72 and art 33.2 – are satisfied. He is not to determine whether Mr Zaoui is subject to a threat which would or might prevent his removal from New Zealand.

Section 72, Immigration Act 1987

Section 72 of the Immigration Act 1987 states, "Where the Minister certifies that the continued presence in New Zealand of any person named in the certificate constitutes a threat to national security, the Governor-General may, by Order in Council, order the deportation from New Zealand of that person."

On this point the Court held, "As directed by s 6 of the Bill of Rights, s 72 is to be given a meaning, if it can be, consistent with the rights and freedoms contained in it, including the right not to be arbitrarily deprived of life and not to be subjected to torture. Those rights in turn are to be interpreted and the powers conferred by s 72 are to be exercised, if the wording will permit, so as to be in accordance with international law, both customary and treaty-based."

In addition the Court directed that no person may be deported under s 72, if the Executive Council, "are satisfied that there are substantial grounds for believing that, as a result of the deportation, the person would be in danger of being arbitrarily deprived of life or of being subjected to torture or to cruel, inhuman or degrading treatment or punishment."

See also

• Ahmed Zaoui
• Convention Relating to the Status of Refugees 1951
• Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
• New Zealand Bill of Rights Act 1990