AB v Chief Executive of the Department of Labour HC Wellington Civ-2010-485-1533

[2011] NZHC 1048

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SECTION 129T OF THE IMMIGRATION ACT 1987 PROTECTS THE IDENTITY OF THE APPELLANT AND THE PARTICULARS OF HIS CASE. THIS JUDGMENT HAS BEEN WRITTEN TO ENABLE PUBLICATION.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-1533

BETWEEN  AB Appellant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR Respondent

Hearing:         16 June 2011

Counsel:         R E Harrison QC for Appellant

I Carter and F J Richards for Respondent

Judgment:      30 June 2011

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      Under  the  Government’s  immigration  policy,  a  person  who  successfully obtains refugee status is able to use that status to apply for residence.   The requirements for such refugee applicants are not particularly onerous.   They must pass the health and character requirements applicable to all applicants.  And, if they wish to include a partner or dependents in the application, they must  meet the

relevant tests applicable to such relationships.

AB V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF LABOUR HC WN CIV 2010-485-1533 30 June

2011

[2]      AB is a refugee.1    He came to New Zealand more than ten years ago.  His refugee status was confirmed in 2007, and subsequently he sought residency.   His residency application foundered on one of the character requirements applicable to all applicants.  This requirement is in A5.26 of the Residence Policy dealing with character requirements, the relevant parts of which provide:

A5.26   Applicants normally ineligible for a residence visa or permit

a.Applicants  will  not  normally be  issued  with a  residence  visa  or granted a residence permit, unless in accordance with A5.26.1 below, where an applicant would pose a risk to New Zealand’s international reputation.

b.In particular (but not exclusively), applicants are considered to pose a risk to New Zealand’s international reputation if they have or have had an association with, membership of, or involvement with, any government, regime, group or agency that has advocated or committed war crimes, crimes against humanity and/or other gross human rights abuses.

[3]      AB used to work for a group that is regarded as falling within the description in A5.26(b).   Rule A5.26.1(b) exempts such a connection if the association was minimal or remote.  However, an immigration officer determined that the duration and nature of his work for the organisation meant AB did not come within the exception.   The Residence Review Board agreed.  AB appeals that decision2.  An appeal is limited to questions of law, of which three are raised.   All relate to the correct interpretation of the applicable immigration policy –

(a)       First, does A5.26 apply at all to a refugee applicant?

(b)Second, if so, is the correct interpretation of A5.26 that someone who comes within it is deemed by the provision to pose a risk, regardless of whether in fact they do?

(c)       And third, did  the Board misinterpret  the exemption  contained  in

A5.26.1(b), and particularly the meaning of “remote”?

1      The letters AB bear no relationship to AB’s actual name.

2      The Residence Review Board exercised its powers to refer AB to the Minister for consideration as to whether he might be recognised as “an exception to policy”. The Minister considered it but declined the application.

Issue one – does A5.26 apply at all?

[4]      The appellant’s essential submission is that whilst A5.26 is a character requirement  of general  applicability for those applying for residency (and other permits), it should not apply to refugee applicants.   This is because it repeats an inquiry made in the context of the refugee status application.   Further, the small variations in wording between the two tests, and the (disputed) deeming effect of A5.26, can lead to inconsistent outcomes even though it is the same inquiry. Accordingly, the immigration policy should be interpreted to avoid this if possible.

[5]      As  a  background  factor  to  assist  reaching  a  correct  interpretation  which avoids  inconsistency,  Dr Harrison QC  referred  to  Article 34  of  the  Convention relating to the Status of Refugees.  It provides that Contracting States shall:3

as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort possible to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.

[6]      It is accepted that the provision does not alter the basic position that there is no entitlement to residency, and that it is a qualified obligation.4   Nevertheless, it is, as Dr Harrison termed it, a strand in the argument.

[7]      The starting point for assessing this submission is to consider the assessment

that is made as part of the refugee claim.  It is known as the “exclusion” inquiry of a

refugee claim, and focuses on Article 1F of the Convention which provides:

3      Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force

22 April 1954), art.34.

4      Mr Carter in reply relied on passages from Hathaway The Rights of Refugees Under

International Law that emphasise Article 34 is an obligation of facilitation rather than result.
The relevant passages (pp 981 – 82) in Hathaway did, however, recognise that other authors give
Article 34 more weight, although all accept its inherent limitations.

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

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

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

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

[8]      As    summarised    by    the    Refugee    Status    Appeals    Authority,    the Article 1F inquiry as it concerned AB was whether there were serious reasons for considering that he was complicit in the commission of a crime against humanity.  It was not suggested he had direct involvement in any such offending.

[9]      AB’s application for a grant of refugee status was originally declined by a refugee  status  officer  but  this  was  overturned  on  appeal.    The  Refugee  Status Appeals Authority considered the evidence fell well short of establishing complicity, and AB was accorded refugee status.

[10]     The appellant’s submission is that since an applicant with refugee status will necessarily have satisfied the authorities that Article 1F does not apply, it is absurd under the residency process to also make the very similar A5.26 inquiry.  That latter inquiry, although worded differently, has a similar focus in that it looks at the same work connection as led to there being a question raised under Article 1F.

[11]     It is noted that C5.60.1(a) and S3.10(c) of the refugee policy provide that a successful claimant:

may apply for residence on the basis of that recognition.

Dr Harrison’s submission is that this provision should be read as meaning that the applicant brings with him or her the character assessment that has already been made in  relation  to  the  refugee  claim.    Unless  that  approach  is  taken,  the  statutory provision saying that a refugee applies “on the basis of refugee status” is given no weight or meaning.

[12]     Further contextual support for the submission is derived from S3.20 which sets out the requirements for a refugee applicant seeking residency.   S3.20(a)(iv) provides that applicants must satisfy immigration officers that:

they meet health and character requirements in A4 and A5, or an appropriately delegated officer, who has applied the policy in A4.55 and A5.25.1, has waived them.

[13]     The appellant notes that there is no reference here to A5.26, something which can  be  seen  to  support  the  approach  contended  for,  namely  that A5.26  is  not applicable to refugees. I observe, however, that the omission is explained by the fact that, unlike the named provisions, A5.26 has no power of waiver.

[14]     I agree that S3.20, which sets out the requirements applicable to a refugee applicant for residence, is significant, but see it as pointing in another direction.  The requirements it imposes for a refugee residency applicants are relatively modest. They need have only refugee status, as well as meeting the standard health and character requirements. A contrast to this can be drawn with the much more onerous requirements set out for those seeking residence on the basis of business standing. There are several different variations of that category and the requirements can involve showing such thing as already having an established business, and/or being able to deposit significant sums of money.

[15]     Given the relatively modest requirements, it is I consider significant that there is no provision which expressly disapplies any of the health and character requirements for a refugee applicant.   On their face they apply to all claimants, regardless of the basis on which the application is made.

[16]     The overall sense one gets is that as regards these requirements the same rules apply.  Supporting that interpretation is s 8 of the Immigration Act 19875 which confirms no one has an entitlement to residency.  This section is given effect to in the policy by C5.60.5 which provides:

The grant of residence does not automatically follow the recognition of refugee status.

5      Now s 45 of the Immigration Act 2009.

[17]     C5.60.5(b) also tells against the appellant’s case.  It states:

C5.60.5         Residence  not  automatically  granted  on  recognition  of refugee status.

...

b.If  it  is  not  appropriate  to  grant  residence  to  a  person recognised as a refugee because they do not meet character or security requirements, officers must take into account the principle  of  “non-refoulement”  under  Article 33  of  the Convention   (see   C2.5.10),   and   consider   granting   a temporary permit. (emphasis added)

[18]     This  provision  plainly  contemplates  that  a  refugee  applicant  may  fail residency because of the character requirements.  Of course this does not answer the present ground of appeal which queries which of the character requirements apply, but again there is nothing in any of these provisions to suggest special or different analyses are required, or to suggest a refugee may not fail character inquiries in the same way as any other applicant.

[19]     In my view the consistent wording of all the relevant provisions is that the same character and health requirements apply to refugee applicants for residency as apply to other applicants. As for the provision on which the appellant relies, namely that refugees may seek residence on the basis of that status, its clear function within the overall scheme is just to provide a link to the particular residency criteria (S3.20) that then apply.

[20]     Whilst the foregoing is sufficient to answer the ground of appeal, I note that I do not accept the appellant’s underlying premise which is that the inquiries under Article 1F of the Convention, and A5.26 of the Governments Residence Policy, are essentially the same.   The refugee inquiry involves a mandatory rejection of any claimant who is personally connected to a crime against humanity.  It is very much a person specific inquiry into the actions of the claimant.   The focus of A5.26 is broader.  The Government, as is its right, has chosen to give itself control over the grant  of  residence  to  anyone  connected  with  a  regime  that  has  advocated  or committed war crimes or crimes against humanity.  The focus is much more on the link  rather  than  the  specific  actions  of  the  applicant.    The  limitations  on  this otherwise broad net are where the association with the prohibited organisation is

minimal or remote (as recognised by the policy exemption in A5.26.1(b), or, in some

cases, the Minister’s discretion to make an exception to policy.

[21]     In  my  view  the  alleged  inconsistency  between  passing  the  gateway  of

Article 1F, yet failing A5.26(b), does not exist.

Issue two – is A5.26(b) a deeming provision?

[22]     Dr Harrison submits that the Board misinterpreted A5.26(b) by treating it as a deeming provision.  In his submission the language of “are considered to pose a risk” need not be read as creating a fiction.

[23]     The genesis for this submission is that, notwithstanding its view that the provision was a deeming provision, the Board addressed the issue of whether giving AB residency would in fact be a risk to New Zealand’s international reputation.  It undertook this inquiry when considering whether to refer AB’s case to the Minister for consideration as an exception to policy on the basis that there were special circumstances.  The Board’s conclusion was that granting residence to AB would not

put at risk, in any material way, the international reputation of New Zealand.6

[24]     The appellant’s submission is that it is an absurdity to have an applicant satisfy  Article 1F  of  the  Convention  and  in  fact  be  no  risk  to  New Zealand’s international reputation, yet be excluded because he is deemed to be the threat he actually is not.7   In his submission A5.26(b) can be read to avoid this.  First, the word “deemed” is not used.  Second, (b) can be read as just providing a paradigm example of when someone might be seen to pose a risk.   “Are considered” could, in this

sense, be read as illustrative rather than determinative.  If one reads “are” as meaning

“may be” then the proposition of deeming goes away.

6      The Board notes, however, that this is “pre-eminently” a matter for the Minister. I am not convinced it was correct for the Board to so directly consider what is indeed the Minister’s issue. However, as I did not hear argument on it, I comment no further.

7      I observe every deeming provision, by its nature, carries the risk of capturing something which would not otherwise meet the test.

[25]     Mr Carter responded with valid policy arguments as to why this should not be done.   The whole thrust of how A5.26(b) is worded is to avoid decision makers having to engage in a reasonably abstract assessment of whether granting residence to a person with a connection to certain groups represents a reputational risk.  The Board accepted this submission and I do not disagree.

[26]     However, I consider the simpler answer is that the wording is plain.  Setting out the relevant provisions in a group assists:

A5.26   Applicants normally ineligible for a residence visa or permit

a.Applicants  will  not  normally be  issued  with a  residence  visa  or granted a residence permit, unless in accordance with A5.26.1 below, where an applicant would pose a risk to New Zealand’s international reputation.

b.In particular (but not exclusively), applicants are considered to pose a risk to New Zealand’s international reputation if they have or have had an association with, membership of, or involvement with, any government, regime, group or agency that has advocated or committed war crimes, crimes against humanity and/or other gross human rights abuses.

c.A5.26(b) does not mean that an applicant cannot be considered to pose a risk to New Zealand’s international reputation for any other reason.

d.Applications to which this provision applies must be determined in accordance with A5.26.1 below.

A5.26.1  Action

...

b.Where A5.26(b) applies, officers may consider the nature and extent of the applicant’s association with, membership of, or involvement with, the government, regime, group or agency.   If the visa or immigration officer is satisfied beyond reasonable doubt that the nature and extent of the association, membership or involvement was minimal or remote then the officer may issue a residence visa or grant a residence permit to the applicant provided all other policy requirements are met.

[27]     The scheme, therefore, is that:

(a)       those who pose a risk will not normally obtain residence;

(b)      if you pose a risk because of A5.26(b), then there is the limited “out”

provided by A5.26.1(b);

(c)       if , however, you are found under A5.26(b) to pose a risk for other

reasons, A5.26.1 does not provide any “out”.

[28]     There can only be one explanation for why those caught by A5.26(b) have a limited “out” yet those caught by (c) do not.   It is because (b) is a deemed risk brought about merely by connection with an organisation.   Because (b) does not involve an actual assessment of whether a person poses a risk, there must be a mechanism to weed out the trivial – a type of de minimis safeguard.   A5.26.1(b) provides this.   By contrast, persons are caught under (c) as a consequence of an assessment that they actually are a risk.  Hence no balancing safeguard is required.

[29]     In my view the structure of the provision reinforces the plain language of A5.26(b).  I accordingly agree with the Board that once AB was assessed as having a connection with a prohibited body, he could not be issued a residence permit unless A5.26.1(b) applied.

Issue three – the meaning of A5.26.1(b)

[30]     Dr Harrison  submits  that  the  Board  erred  in  its  assessment  of  the  word “remote”.   He submitted that the Board only looked at remoteness in a temporal sense (14 years ago) but did not consider the geographical senses:

(a)       New Zealand is remote from the country where AB worked;

(b)the area in which AB worked is remote from that part of the country where the human rights abuses occurred; and

(c)      AB’s association with the organisation is completely terminated (this

is really a temporal consideration).

[31]     I  do  not  consider  this  submission  is  sustainable.    The  physical  distance between New Zealand and the country in issue is an irrelevancy when assessing whether someone’s involvement with an organisation is now remote.  Likewise, the geographical closeness of AB’s work within the country is not, in my view, a correct focus.   I take it that what underlies this proposition is that it is relevant that AB’s work was not really connected with that conduct of the organisation which brings it within the prohibited activities.   Seen in that light, it is really just another way of asking if the nature and extent of AB’s involvement was “minimal”.

[32]     The  Board  assessed AB’s  work  and  his  degree  of  involvement  with  the organisation.  To avoid the need for total suppression of this judgment I do not repeat it.  However, I agree with its analysis. The Board then observed:

[98]     Counsel  for  the  appellant  says  that  “remote”  has  inter  alia  a temporal quality.  That is correct.  However, an association of this nature and duration, ceasing 14 years ago, is not so remote in time as to be dismissed as irrelevant or meaningless now.

[33]     I cannot see any error in this approach.  There is nothing about the conclusion to suggest the Board must have misdirected itself.  The appellant suggests the last words – irrelevant or meaningless – place a gloss on the policy’s actual  language of minimal and remote, but I do not agree.  In giving reasons one is always looking for the best way to articulate why it is that a test is met or not met.  Simple recitation of the wording of the test is often not particularly illuminating, and efforts to provide more clarity should not be seen as mis-stating the test.

[34]     Whilst the words do not capture everything that might come within minimal and remote, I do not consider it is wrong for the Board to have asked whether the nature and extent of AB’s conduct and association can now be seen as “meaningless and irrelevant”.   Likewise, it was not wrong to earlier speak of his association as being “not casual or fleeting”.  I consider it would be incorrect to attempt a definitive meaning  of  these  terms,  which  will  inevitably  involve  a  process  of  balancing different  factors.     For  example,  how  closely  linked  an  applicant  was  to  the

organisation will influence an assessment of whether, in the particular case,   that

person’s conduct or contact with the group is now to be seen as remote.

[35]     As with the other two grounds, I do not consider the Board misinterpreted the policy.

[36]     The appeal is dismissed.

[37]     Section 129T  of  the  Immigration  Act 1987  prohibits  revelation  of  AB’s

identity or the particulars of his case.  This judgment has been written to avoid the need for publication restriction.

Simon France J

Solicitors:

R E Harrison QC, PO Box 1153, Auckland 1140, email:  [email protected]

I Carter, Crown Law, PO Box 2858, Wellington 6140, email:  [email protected]