Attorney-General v Tamil X - [2010] NZSC 107

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR PARTICULARS IDENTIFYING X AND HIS WIFE
IN THE SUPREME COURT OF NEW ZEALAND
SC 107/2009
[2010] NZSC 107
BETWEENTHE ATTORNEY-GENERAL (MINISTER OF IMMIGRATION)
Appellant

ANDTAMIL X
First Respondent
ANDREFUGEE STATUS APPEALS AUTHORITY
Second Respondent

Hearing:24 June 2010

Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:I C Carter and R Kirkness for Appellant
R E Harrison QC and C S Henry for First Respondent

Judgment:27 August 2010

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe respondent’s application for recognition of refugee status is remitted to the Refugee Status Appeals Authority for consideration in accordance with the Court of Appeal’s order.
CCosts are reserved and counsel may submit memoranda if necessary.

REASONS
(Given by McGrath J)
CONTENTS
Para No

Introduction  [1]
Background  [4]
Refugee Convention and legislation  [12]
Procedural history  [14]
High Court and Court of Appeal judgments  [22]
Nature of refugee decision-making  [32]
Application of art 1F:
(a)Factual conclusions  [40]
(b)Complicity in a crime against humanity  [46]
(c)Was any crime against humanity committed?               [71]
(d)Were serious non-political crimes committed?             [81]
Conclusion[101]

Introduction
[1] The protection accorded by the 1951 Convention Relating to the Status of Refugees[1] extends generally to those to whom the Convention accords the status of refugee. Included are those who fear persecution for reasons stated in the Convention and who generally meet its requirements for recognition as a refugee. There are, however, persons who are excluded by the Convention from receiving its protection because there are serious reasons for considering they committed specified criminal acts before arriving in the country in which they seek refuge. This appeal raises questions concerning the meaning and scope of the exclusionary provision of art 1F of the Convention:
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.
[1]United Nations Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954).

[2] The first respondent (whom we will call “the respondent”) is a Sri Lankan citizen who claimed refugee status shortly after his arrival in New Zealand and admission under a visitor’s permit in 2001. The context in which the issue arises of whether he is excluded from holding refugee status is the respondent’s association with the Liberation Tigers of Tamil Eelam (Tamil Tigers) and their activities. While the Tamil Tigers is an organisation striving for political change which has been engaged in armed conflict against government forces, it has also committed many…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NZSC 107
Decision Date: 27 August 2010

CaseChat Overview and Summary

The appeal was brought by the Attorney-General against the decision of the Court of Appeal to allow the appeal of the first respondent, Tamil X, against the decision of the Refugee Status Appeals Authority to exclude him from refugee status under the 1951 Convention Relating to the Status of Refugees. The Supreme Court held that the appeal should be dismissed and that the matter should be remitted to the Authority for reconsideration. The Court found that the Authority had not been shown to have erred in its findings of fact and that the test to be applied to establish complicity in a crime against humanity required the Crown to show that there were serious reasons to consider that the respondent had contributed in a significant way to the organisation's ability to pursue its purpose of committing war crimes. The evidence did not establish that the respondent had been complicit in crimes against humanity. The Court also found that the crimes committed by the respondent in relation to the destruction of the Yahata were political in nature and therefore the respondent was not disqualified from refugee status under art 1F(b) of the Convention.

Orders