Attorney-General v Zaoui
[2004] NZCA 244
•30 September 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA20/04
BETWEENTHE ATTORNEY-GENERAL
Appellant
ANDAHMED ZAOUI
First RespondentANDTHE INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY
Second RespondentANDTHE HUMAN RIGHTS COMMISSION
Intervener
Hearing:10-11 May 2004
Coram:Anderson P
Glazebrook J
William Young JAppearances: T Arnold QC, K L Clark and A S Butler for Appellant
R E Harrison QC and D A Manning for First Respondent
W M Wilson QC and J M Mallon for Second Respondent(not present, by leave)
R M Hesketh and S R Bell for Intervener
Judgment:30 September 2004
JUDGMENTS OF THE COURT
Judgments Paragraph Number Anderson P [1]-[26] Glazebrook J [27]-[170] WILLIAM YOUNG J [171]-[200] APPENDIX: RELEVANT LEGISLATION AND INTERNATIONAL CONVENTIONS
A Immigration Act 1987
B Inspector-General of Intelligence and Security Act 1996
C Security Intelligence Service Act 1969
D Terrorism Suppression Act 2002
E Convention Relating to the Status of Refugees 1951
F Vienna Convention on the Law of Treaties 1980
ANDERSON P
[1] Mr Zaoui is an Algerian National who entered New Zealand in December 2002 and claimed refugee status. The Refugee Status Appeals Authority upheld that claim in August 2003 in consequence of which Mr Zaoui has the benefit of the provisions of the Convention relating to the Status of Refugees 1951, to which New Zealand is a party. Notwithstanding, Mr Zaoui is embroiled with a formal process, instigated by the Director of Security, who holds office under the New Zealand Security Intelligence Act 1969, which could lead to his expulsion from New Zealand. Aspects of that process have been the subject of judicial review proceedings in the High Court. The comprehensive judgment of Williams J on the review is reported, Zaoui v Attorney-General [2004] 2 NZLR 339. I have also had the advantage of reading in draft the detailed and learned reasons for judgment of Glazebrook J on the present appeal. I think it appropriate, therefore, to confine my reasons for judgment to an overview and an expression of concurrence with Glazebrook J’s reasons and conclusions.
[2] Article 33 of the Refugee Convention provides as follows:
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.
2. The benefit of the present 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 is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
[3] Article 33 of the Refugee Convention is recognised by s 129X of the Immigration Act 1987 in the following terms:
(1)No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.
(2)In carrying out their functions under this Act in relation to a refugee or refugee status claimant, immigration officers must have regard to the provisions of this Part and of the Refugee Convention.
[4] The constraints on expulsion or return could be weakened in practice by a Contracting State unless it has a fair and formal procedure for determining whether, in any particular case, a refugee is deprived of protection by virtue of art 33.2. As a general proposition, for a system to be fair, it would have to recognise and apply the ordinary principles of natural justice which in New Zealand are affirmed by s 27 of the New Zealand Bill of Rights Act 1990 (‘BORA’). A fundamental aspect of natural justice is the right to know, and to be accorded the opportunity of being heard in respect of, matters which might be considered in the course of a decision affecting a person’s rights or interests. But it may sometimes be the case that the Contracting State’s grounds for regarding a refugee as a danger to the security of that country are based on classified information, the disclosure of which, to others including the refugee facing refoulement, may compromise the source of the information or State security operations. This can produce a conflict between the refugee’s rights to natural justice and the State’s interest in its own security. In New Zealand there is a legislative mechanism intended to bring a measure of reconciliation between the conflicting rights and interests. This is provided in Part IVA of the Immigration Act 1987.
[5] The object of Part IVA, which is not restricted to refugees but applies generally to persons who may be liable to be prevented entry to or expelled from New Zealand is set out in s 114A in the following terms:
The object of this Part is to -
(a) Recognise that the New Zealand Security Intelligence Service holds classified security information that is relevant to the administration of this Act; and
(b) Recognise that such classified security information should continue to be protected in any use of it under this Act or in any proceedings which relate to such use; and
(c) Recognise that the public interest requires nevertheless that such information be used for the purposes of this Act, but equally that fairness requires some protection for the rights of any individual affected by it; and
(d) Establish that the balance between the public interest and the individual’s rights is best achieved by allowing an independent person of high judicial standing to consider the information and approve its proposed use; and
(e) Recognise that the significance of the information in question in a security sense is such that its approved use should mean that no further avenues are available to the individual under this Act and that removal or deportation, as the case may require, can normally proceed immediately; and thus
(f) Ensure that persons covered by this Act who pose a security risk can where necessary be effectively and quickly detained and removed or deported from New Zealand.
[6] The whole of Part IVA is appended to this judgment but it is convenient to summarise it at this point.
[7] The Minister of Immigration may be provided by the Director of Security with a security risk certificate in terms of s 114D(1) of the Immigration Act. The purpose of such certificate is to provide the Minister with information in light of which a decision may be made which could lead to the deportation or removal of a person from New Zealand. The process envisages the possession by the Director of classified security information which categorises the subject of the certificate in terms of stated security criteria. “Classified security information” is defined by s 114B in terms of a threat to the security, public order or public interest posed by an individual and in terms also of security reasons why such information cannot be disclosed to the individual or others. Relevant security criteria are defined in s 114C. Of particular relevance to Mr Zaoui is s 114C(6) which provides:
The relevant refugee deportation security criteria are a combination of any 1 or more of the criteria listed in subsection (4) as relevant deportation security criteria, taken together with either or both of the following criteria:
(a) That there are reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention:
(b) That the person is a danger to the community of New Zealand, having been convicted by a final judgment of a particularly serious crime, in terms of Article 33.2 of the Refugee Convention.
[8] One of the important issues in this case is whether and if so to what extent international law is imported by or colours the meaning or connotations of s 114C(6) because of the reference to the Refugee Convention.
[9] The Minister may rely on a security risk certificate, initially as a preliminary decision and later as a final decision, with the ultimate consequence that immigration proceedings before Tribunals or Courts are bound to be dismissed and the subject of a certificate expelled. After the preliminary decision by the Minister and before any final Ministerial decision, the subject may apply for a review of the Director’s decision to make a security risk certificate. Such review is carried out by the Inspector-General of Intelligence and Security, who holds office pursuant to the Inspector-General of Intelligence and Security Act 1996 (‘I-G Act’).
[10] The function of the Inspector-General on a review, prescribed by s 114I(4), is to determine whether -
(a) The information that led to the making of the certificate included information that was properly regarded as classified security information; and
(b) That information is credible, having regard to the source or sources of the information and its nature, and is relevant to any security criterion; and
(c) When a relevant security criterion is applied to the person in light of that information, the person in question is properly covered by that criterion –
and thus whether the certificate was properly made or not.
[11] If the Inspector-General decides that the security risk certificate was properly made, the Minister must make a final decision within three working days whether to rely on it. Such a decision leads to the ending of immigration related litigation and to the expulsion of a person as mentioned. But if the Inspector-General decides that the certificate was not properly made, the person who sought the review must be released from custody immediately and normal immigration processes resumed.
[12] In the present case the Director issued a security risk certificate in relation to Mr Zaoui on 20 March 2003. Three days later the Minister made a preliminary decision to rely on the certificate and issued a notice to that effect. Mr Zaoui immediately applied to the Inspector-General for a review. In memoranda dated 16 September 2003 and 7 October 2003 the Director, by counsel, informed Mr Zaoui’s legal advisers and the Inspector-General of certain legal and factual matters on which the security risk certificate relied. Counsel for the Director and for Mr Zaoui exchanged memoranda relating to the procedure which they considered the Inspector-General should follow in undertaking this wholly unprecedented review of a security risk certificate. On 6 October 2003 the Inspector-General, who was then the Honourable Laurence Greig and since 8 June 2004 has been the Honourable Paul Neazor, issued what has been termed an interlocutory decision indicating he had decided, amongst other things, that the Director did not have to provide Mr Zaoui with a summary of the classified security information and, further, that general issues of international jurisprudence were “beside the point”.
[13] Mr Zaoui’s response to the Director’s indication of how he would conduct the review was an application to the High Court for judicial review. Whilst I think it is questionable whether the so-called “interlocutory decision” is, per se, a statutory decision in terms of the Judicature Amendment Act 1972, it nevertheless evidences a proposed exercise by the Inspector-General of his own statutory power of review. Therefore, it is envisaged by s 4(1) of the Judicature Amendment Act and unless judicial review is legally precluded, as counsel for the Attorney-General contends, this Court may appropriately examine and pass upon the issues raised in this appeal.
[14] In the High Court Williams J held that the Director must provide Mr Zaoui with a summary of the allegations against him, provided that information does not breach the definition of “classified security information” which “cannot be divulged”. He said that the right of a person charged – or subject to a certificate, to know at least the outline of the allegations and the basis on which they are made, was a fundamental tenet of natural justice and should be implemented in Mr Zaoui’s case as far as is possible, consistent with the definition of “classified security information”.
[15] Neither the Crown nor Mr Zaoui have appealed against that part of the judgment of Williams J. This appeal has been brought by the Crown to determine whether the Inspector-General is amenable to judicial review at all in relation to his duties and powers in respect of a review of a security risk certificate. The Attorney-General submits, by counsel, that judicial review is precluded, as a matter of inference from the statutory scheme and because of the constraints on review specified in s 19(9) I-G Act and imported by s 114I(6)(b) Immigration Act. The submission, if correct, would prevent the Court from reviewing the Inspector-General even for error of law.
[16] The bold submission that the High Court’s supervisory jurisdiction in respect of the exercise of any statutory power, on the grounds of error of law, can be excluded at all, let alone by inference, is essentially untenable. Even before the affirmation of rights by s 27(2) BORA the Courts were vigilant to protect their responsibility to determine what the law is and to ensure that decision-makers acted lawfully and stayed within the limits of the powers entrusted to them by Parliament. That the High Court must regard as impliedly excluded its supervision in respect of any statutory power, to ensure its lawful exercise, let alone a power as relevant to personal liberty as the Inspector-General’s power of review, is a proposition I refuse to accept. As to s19(9) I-G Act, this does not preclude review for lack of jurisdiction, which the Courts interpret as including any material error of law.
[17] Counsel for the Attorney-General further submitted that even if the Court had jurisdiction to review, the present intervention was premature because the Inspector-General may ultimately decide that the certificate was not properly made and, in any event, there is a right of appeal from the decision of the Inspector-General, on point of law, pursuant to s 114P.
[18] A particular submission for the Attorney-General, albeit not annexed to a ground of appeal, is that the function of the Inspector-General was to consider whether there were reasonable grounds for the Director to be satisfied that the information is classified security information and that the relevant security criteria are met. In my opinion s 114I(4) of the Immigration Act makes it plain that the Inspector-General is to come to his own view about the nature, credibility and relevance of information said to be classified, and to his own view as to whether a person in question is properly covered by a relevant security criterion. The Inspector-General’s review is not in the nature of that type of judicial review which examines another person’s decision for rationality. It is a process of independent assessment by the Inspector-General.
[19] Notwithstanding that right of appeal, I am satisfied it is apt to review the Inspector-General’s process en route to an appealable determination. It is the case that, as a generalisation, the Courts are diffident about intervening by way of judicial review before a matter is ripe for an available appeal. But an exception must be admitted where the whole process en route to the appealable decision may miscarry, with grave consequences, unless judicial guidance is obtained. There are compelling arguments for intervention in this case where a review by the Inspector-General is entirely unprecedented, where the subject’s liberty and convention rights are potentially jeopardised and where the individual must join issue with one hand tied behind his back by an assertion of the existence of classified security information.
[20] I would dismiss the Attorney-General’s appeal.
[21] There is a cross-appeal on behalf of Mr Zaoui in two respects. The first relates to a finding by Williams J, as part of his ultimate reasoning, to the effect that the Inspector-General’s errors had been contributed to by suggestions on behalf of Mr Zaoui as to the procedure to be followed. Mr Zaoui’s counsel are understandably troubled by what seems a criticism of them and by the implication such a conclusion may have in relation to costs issues in due course. But, with respect, that is a matter insufficiently related to questions of relief in this appeal for the Court to take issue with the Judge.
[22] The core of the cross appeal is, and was appropriately dealt with as such in counsel’s submissions, Williams J’s findings summarised by the conclusion that:
It is for the Inspector-General to decide what relevance and weight he accords the international human rights instruments and international human rights jurisprudence.
[23] The Attorney-General takes issue with that finding on the grounds that it envisages the Inspector-General going beyond his prescribed function and undertaking the responsibility, which is the Minister’s alone, of deciding, not whether the security risk certificate was properly made, but whether an expulsion should occur by relying on it. Mr Zaoui, on the other hand, takes issue in terms amounting to the proposition that Williams J’s finding did not go far enough in merely leaving the possibility, complained of by the Attorney-General, as an option. In Mr Zaoui’s submission the Inspector-General is obliged to consider whether there is a country where Mr Zaoui would be safe from the possibility of torture or death, and to take account of that in deciding whether to confirm the certificate. In my opinion, the finding is wrong, not because it did not go far enough but because international jurisprudence does not prescribe the Inspector-General’s function; it colours the meaning or connotations of the prescription of his function as it relates to s 114C(6). The Inspector-General is bound by the correct interpretation of the prescription. The Attorney-General and Mr Zaoui may aptly take issue with Williams J’s conclusion, but in each case their reasons are, in my view, off the point.
[24] In that respect I am entirely in agreement with the reasons given by Glazebrook J and with the conclusions she sets out at para [169].
[25] I have no doubt that the specific reference to the Refugee Convention in s 114C of the Act and in particular, for present purposes, subs (6), imports the international jurisprudence in respect of the Convention. Not only is it unthinkable that the legislature intended New Zealand’s State obligations in relation to the Convention to be read down by implication, the subsection expressly stipulates for the terms of the Convention itself to inform the issue whether “there are reasonable grounds for regarding the person as a danger to the security of New Zealand”. The legislature obviously intended that the Convention was to be honoured, not derogated from or ignored. Such honouring required it to be given effect consistent with international law. As the international jurisprudence expatiated by Glazebrook J shows, “danger to the security of New Zealand” has connotations of substantial threat and harm, a real connection between the individual and the threat and the necessity for an appreciable alleviation of the danger to be effected by deportation. I would allow the cross-appeal on this issue.
Result
[26] The appeal by the Attorney-General is dismissed and the cross-appeal by Mr Zaoui is allowed. There will be declarations on the cross-appeal in the terms expressed in Glazebrook J’s conclusions at [169] (c)(d) and (e), and Mr Zaoui will have costs in the sum of $12,000 together with disbursements including the reasonable travelling and accommodation expenses of two counsel. The question of the costs of the Intervener is reserved. The form of the declarations is:
(1)Whether there are reasonable grounds for regarding the person as a danger to the security of New Zealand must be decided in terms of art 33.2 of the Refugee Convention. This follows from the explicit reference to the Refugee Convention in s 114C(6)(a) and requires the Inspector-General to consider whether there are reasonable grounds for regarding Mr Zaoui as a danger to the security of New Zealand in light of New Zealand’s obligations under that Convention.
(2)The security criteria in s 114C(6)(a) will be met only if there are objectively reasonable grounds based on credible evidence that Mr Zaoui constitutes a danger to the security of New Zealand of such seriousness that it would justify sending a person back to persecution. The threshold is high and must involve a danger of substantial threatened harm to the security of New Zealand.
(3)There must be a real connection between Mr Zaoui himself and the prospective or current danger to national security and an appreciable alleviation of that danger must be capable of being achieved through his deportation.
JUDGMENT OF GLAZEBROOK J
Table of Contents
Paragraph Number
Introduction [27]
Statutory framework [30]
Background facts [52]
Interlocutory decision of the then Inspector-General [59]
Decision of Williams J [69]
Events since Williams J’s judgment [84]
Availability of judicial review [86]
Williams J’s decision [86] Crown submissions on appeal [90]
Submissions for Mr Zaoui [95]
Discussion [101]
Relevance of international human rights instruments [108]
Division of function between the Minister and the Inspector-General [108]
Relevance of the Refugee Convention to the review [118]
What does the Refugee Convention require? [127]
Role of the RSAA [161]
Conclusion [169]Introduction
[27] Mr Zaoui is an Algerian national who has been recognised as a refugee in New Zealand. He is the subject of a security risk certificate issued by the Director of the New Zealand Security Intelligence Service (SIS). The Inspector-General of Intelligence and Security, by statute a retired High Court Judge, is reviewing the issue of that certificate. If it is confirmed, it could lead to Mr Zaoui’s deportation from New Zealand.
[28] This appeal concerns the extent of the review function. The Crown contends that the focus of the Inspector-General’s review is solely on issues of security. International human rights instruments and jurisprudence are not relevant, although they will be taken into account by the Minister of Immigration when deciding on the appropriate action to take if the certificate is confirmed. Mr Zaoui contends that the Inspector-General is required to weigh Mr Zaoui’s human rights (and in particular his right not to be exposed to a real risk of death or torture) against the security interests of New Zealand when deciding whether the security risk certificate was properly made.
[29] There is a threshold issue raised by the Crown. It contends that judicial review cuts across the scheme of the legislation and that the proper course is for Mr Zaoui to wait for the Inspector-General’s review to be completed and then, if the certificate is confirmed, seek leave to appeal to this Court on a point of law.
Statutory framework
[30] For ease of reference the main legislative provisions and the relevant international conventions referred to are set out in Appendix 1 to this judgment. Where texts and articles are referred to, the full reference is given only at the first citation and subsequently by author surname.
[31] The Immigration Act 1987 (the Act) was amended in 1999 in two relevant ways. The first, introducing a new Part VIA, provided a statutory basis for refugee status determination and related appeals and was designed to clarify the interface between the Act and the United Nations Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967 (the Refugee Convention). Before these amendments, New Zealand implemented its obligations under the Refugee Convention through administrative and quasi-judicial processes. Under the Act, every claim to refugee status is determined by a refugee status officer, an official designated as such by the Chief Executive of the Department of Labour. There is then a right of appeal to an independent body, the Refugee Status Appeal Authority (RSAA). Mr Zaoui was granted refugee status by the RSAA on 1 August 2003.
[32] Under s 129X (contained in Part VIA of the Act), there is an absolute prohibition on the removal or deportation of refugees or refugee status claimants unless the provisions of art 32.1 or art 33.2 of the Refugee Convention allow the removal or deportation. Article 32 applies only to refugees (and probably refugee status claimants) who are lawfully in New Zealand - see the discussion in Gunnel Stenberg Non-Expulsion and Non-Refoulement: The Prohibition against Removal of Refugees with Special Reference to Articles 32 and 33 of the 1951 Convention relating to the Status of Refugees (IUSTUS FÖRLAG, 1989) at 87-96 and 121–130.
[33] Mr Zaoui has not been granted a permit to enter New Zealand even though he is a recognised refugee. The relevant article therefore appears to be art 33, which provides as follows:
(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.
(2) The benefit of the present 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 is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
[34] The prohibition on refoulement, contained in art 33.1 of the Refugee Convention, is generally thought to be part of customary international law, the (unwritten) rules of international law binding on all States, which arise when States follow certain practices generally and consistently out of a sense of legal obligation. Thus it would normally be considered to form part of New Zealand law in any event – see Ian Brownlie Principles of Public International Law (6ed, Oxford, 2003) at 6-8 and 41-44. The New Zealand Law Commission A New Zealand Guide to International Law and its Sources (NZLC R34, 1996) at 24 makes the same point, although, for a note of caution, see Treasa Dunworth, “Hidden Anxieties: Customary International Law in New Zealand” (2004) 2 NZJPIL at 7. For the question of whether the prohibition on refoulement is a principle of customary international law see also Guy Goodwin-Gill, The Refugee in International Law (2ed, 1996) at 143 and Sir Elihu Lauterpacht QC and Daniel Bethlehem, “The scope and content of the principle of non-refoulement: Opinion” in Feller, Türk and Nicholson, Refugee Protection in International Law : UNHCR’s Global Consultations on International Protection (Cambridge, 2003) at para 216. I record here that this volume, to which I refer extensively in the course of the judgment, consists of papers and conclusions that were an outcome of the Global Consultations on International Protection, organised by the United Nations High Commissioner for Refugees (UNHCR) in 2000-2002 to reinvigorate the international refugee protection regime. They are a result of a series of expert roundtables that were held in 2001 as part of the Global Consultations.
[35] The Executive Committee of the UNHCR, indeed, in 1982, in General Conclusion on International Protection No 25 (XXXIII) 1982 at para (b), went so far as to observe that the principle of non-refoulement was progressively acquiring the character of a peremptory rule of international law or jus cogens, the rules of international law that are accepted and recognised by the international community of States as a whole as rules from which no derogation is permissible - see Jean Allain “The jus cogens Nature of non-refoulement” (2002) 13 Int Jnl Refugee Law 533 at 534 and 539 and art 53 of the Vienna Convention on the Law of Treaties. For an explanation of the role and status of the Executive Committee see Attorney-General v E (judgment of Thomas J at para [94]) and Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (judgment of McGrath J at para [100]).
[36] Section 129X(1), however, appears wider than the art 33.1 prohibition on refoulement. This is because art 33.1 only prohibits expulsion or return to a country where the refugee’s life or freedom would be threatened for a Convention reason, either directly or indirectly, which is usually interpreted as covering all situations where the refugee risks any type of persecution for a Convention reason – see the commentary on art 33 of Professor Atle Grahl-Madsen in Commentary on the Refugee Convention, Articles 2-11, 13-37 (1963; re-published by the Division of International Protection of the UNHCR, 1997) at para (4) and also Stenberg at 209 and 217-219 and James C Hathaway The Law of Refugee Status (Butterworths, 1991) at 6-11. I record here that Professor Grahl-Madsen’s commentary, which is also referred to extensively in this judgment, was written during the eighteen months he spent as a Special Consultant in the office of the UNHCR. It is considered a seminal study on the Refugee Convention - see Lauterpacht and Bethlehem at para 125 and the Foreword to the reissue of Professor Grahl-Madsen’s commentary.
[37] The effect of s 129X(1) seems to be that deportation or removal from New Zealand, even to a safe third country, is only allowed in the case of a refugee or refugee status claimant if art 32.1 or art 33.2 applies, that is, in the latter case, if there are reasonable grounds for considering the refugee or refugee status claimant a danger to the security of New Zealand or a danger to the community, having been convicted of a particularly serious crime. Article 33.2 is discussed in more detail later.
[38] In the case of art 32.1, expulsion of a refugee lawfully in New Zealand can only occur on grounds of national security or public order. For an analysis of the requirements of art 32 and the meaning of national security see Stenberg at 165‑170. Stenberg considers that the term “security of the country” in art 33.2 is a more restrictive one than the term “national security” in art 32.1, which in itself must be interpreted restrictively – see 220-221 and see also Geoff Gilbert “Current Issues in the application of the exclusion clauses” in Feller, Türk and Nicholson 425, at 457‑462. Grahl-Madsen, however, equates the two terms – at para 8 of the commentary on art 33.
[39] The second relevant amendment to the Act was the introduction of special procedures in cases involving security concerns through a new Part IVA of the Act. It is this part that is primarily at issue in this case. In the Explanatory Note to the Immigration Amendment Bill 1998, it was explained (at i) that one of the principal objects of the Bill was to “establish a special security regime to protect sensitive security information that is relevant to immigration matters.” The more detailed explanation said (at iii) that such special procedures were necessary to allow the information to be used without being disclosed, while protecting the rights of the individual through a process of independent scrutiny. The relevant passage is set out in full as follows:
The immigration decision-making process and fairness generally require that the individual concerned has access to any information held about them. This requirement sometimes stops the New Zealand Security Intelligence Service from providing classified security information on an immigration application or decision even though that information may have a direct bearing on the matter. The Bill therefore establishes a special security process to allow for such classified security information to be considered in immigration decisions without putting the classified nature of that information at risk, while ensuring that the rights of the individual are protected through a process of independent scrutiny.
[40] The Select Committee report on the Bill recommended that the right of the person, who is the subject of a security certificate, to be heard should be referred to expressly in Part IVA, even though the legislation already allowed for that by inclusion of provisions from the Inspector-General’s own Act (at vii).
[41] Section 114A sets out the objects of Part IVA. It recognises that the public interest requires that classified security information be able to be used in coming to decisions under the Act but that nevertheless such information should be protected from disclosure. Individual rights are catered for by providing for an independent person of high judicial standing to consider the classified security information and “approve its proposed use”. The section provides that the use of the information should mean that no further avenues are available to the individual under the Act and that removal or deportation, as the case may require, could normally proceed immediately, allowing for the effective and quick removal of those posing a security risk.
[42] Classified security information is defined under s 114B(1) as information about the threat to security, public order or public interest posed by an identifiable individual which is held by the SIS and which, in the opinion of the Director, cannot be divulged to the individual in question or to other persons because two criteria are met, as set out in paras (a) and (b) of the definition. Para (a) of the definition covers three situations: where the information might lead to disclosure of information, assistance or operational methods available to the SIS, where it is information about particular operations that have been undertaken by the SIS and where it has been provided to the SIS by the Government of any country or an agency of such a Government and the agency or Government does not consent to its disclosure.
[43] Para (b) covers four situations: where the disclosure of the information would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand, where it would prejudice the entrusting of information to the Government of New Zealand by any other Government or agency of such Government or by an international organisation, where it would prejudice the maintenance of the law, including the prevention, investigation and detection of offences and the right to a fair trial, and finally where it would endanger the safety of any person.
[44] Under s 114D, the Director of Security can provide a Security Risk Certificate to the Minister of Immigration where he or she holds classified security information that the Director is satisfied –
a)Relates to an identifiable individual who is not a New Zealand citizen and is a person about whom decisions are to be, or can be, made under this Act; and
b)Is credible, having regard to the source or sources of the information and its nature, and is relevant to the relevant security criterion; and
c)Would mean, when applying a relevant security criterion to the situation of that person in light of that information, that the person meets the criterion.
[45] Section 114C sets out the relevant security criteria. Where a refugee or refugee status claimant is concerned at least one of the security criterion set out in s 114C(3) or (4) must be met, together with one or more of those set out in s 114C(5) and (6). The criteria relied on by the Director with regard to Mr Zaoui are that he constitutes a threat to national security in terms of s 72 of the Act (s 114C(4)(a)) and that there are reasonable grounds for regarding him as a danger to the security of New Zealand in terms of art 33.2 of the Refugee Convention - see s 114C(6)(a) of the Act. There is no reliance on s 73 of the Act dealing with suspected terrorists – see s 114C(4)(b). Nor is there an allegation that Mr Zaoui is a danger to the community of New Zealand, having been convicted by a final judgment of a particularly serious crime in terms of s 114C(6)(b) of the Act.
[46] Under s 114G(1), the Minister is empowered to make a preliminary decision to rely on a security risk certificate and then must give a notice to that effect to the chief executive of the Department of Labour. All immigration processes, apart from refugee status determination proceedings, then immediately cease. The individual must be served with a copy of the notice and information relating to the security risk certificate and be notified of the right to apply for review of that certificate. Section 114Q provides that no person who is a refugee status claimant may be removed or deported from New Zealand until the refugee status of that person has been finally determined under Part VIA of the Act. Where the Minister does rely on a security risk certificate he or she is not obliged to give reasons for any decisions made in reliance on the certificate – see s 114F(2)(a). There is also no express obligation on the Director to give reasons for providing a security certificate, beyond identifying the relevant security criteria – see s 114D(2). The Director may be called by the Minister to give an oral briefing on the contents of the certificate but the content of the oral briefing is to be determined by the Director and may not be recorded or divulged by the Minister (s 114E).
[47] The procedure for the review of a security risk certificate is set out in s 114I. It is undertaken by the Inspector-General of Intelligence and Security, who must by statute be a retired High Court Judge. Under s 114I(4) of the Act, the function of the Inspector-General on a review is set out as being to determine whether:
a)The information that led to the making of the certificate included information that was properly regarded as classified security information; and
b)That information is credible, having regard to the source or sources of the information and its nature, and is relevant to any security criterion; and
c)When a relevant security criterion is applied to the person in light of that information, the person in question is properly covered by the criterion –
and thus whether the certificate was properly made or not.
[48] In conducting the review, the Inspector-General may, under s 114I(5), take into account any relevant information, including information that is not classified security information. He or she has all the powers conferred on him or her by the Inspector-General of Intelligence and Security Act 1996 (I-G Act) and the procedural provisions of that Act, with certain exceptions and with any necessary modifications, apply to the review – see s 114I(6). I note in particular that s 19(5) allows the Inspector-General to receive any evidence as he or she thinks fit, whether admissible in a Court of law or not and that s 19(8) of the I-G Act allows the Inspector-General to regulate his or her procedure in such a manner as he or she thinks fit, subject to the provisions of the I-G Act. I also note the powers in s 23 to require the production of documents and to summon and examine on oath any person the Inspector-General considers has relevant information.
[49] Under s 114H, a person who seeks a review under s 114I may be represented, whether by counsel or otherwise, in his or her dealings with the Inspector-General, must be given access, to the extent provided by the Privacy Act 1993, to any information about him or her other than the classified security information and may make written submissions to the Inspector-General about the matter, whether or not he or she also wishes to be heard pursuant to s 19(4) of the I-G Act. Section 19(4) provides:
19Proceedings of Inspector-General
(4) The Inspector-General shall permit the complainant to be heard, and to be represented by counsel or any other person, and to have other persons testify to the complainant's record, reliability, and character.
[50] The decision of the Inspector-General as to whether the certificate is properly made or not must be accompanied by reasons, except to the extent that the giving of reasons would be likely to prejudice the interests that Part IVA seeks to protect in relation to the classified security information – see s 114J(4). Under s 114P the person can, by leave of this Court, appeal on a point of law against the Inspector-General’s decision.
[51] If the security risk certificate is held not to have been properly made, then s 114J(2) requires that the person must be released from custody immediately and the normal immigration procedures will then recommence. If the certificate is confirmed, however, the Minister is required under s 114K(1) to make a final decision within three working days whether to rely on the confirmed certificate and therefore to set in motion the deportation or removal procedures – see s 114K(4)(b). This applies unless the person is protected from removal or deportation by s 114Q or s 129X – see s 114K(4)(c). The Minister is not obliged to give any reasons for the decision – see s 114K(7). Section 114K(6) provides that, where s 114K applies, the person who is the subject of the certificate has no further right of appeal or review under the Act. The Minister does, however, have the power under s 114N to revoke a decision to rely on the certificate or, where a certificate has been confirmed by the Inspector-General, to decide nevertheless that the relevant security criterion should not be applied to the person.
Background facts
[52] Mr Zaoui arrived in New Zealand on 4 December 2002 via Vietnam and the Republic of Korea (the latter transit only) and sought refugee status. His application was declined by the refugee status branch of the Immigration Service on 30 January 2003 but, as noted above, granted by the RSAA on 1 August 2003.
[53] On 20 March 2003, the Director issued a security risk certificate to the Minister. In a memorandum dated 16 September 2003 counsel for the Director of Security indicated that the security risk certificate relied on para (c) of the definition of “security” in s 2(1) of the New Zealand Security Intelligence Service Act (SIS Act) relating to the protection of New Zealand from activities within or related to New Zealand that:
(i)Are influenced by any foreign organisation or any foreign person; and
(ii)Are clandestine or deceptive, or threaten the safety of any persons; and
(iii)Impact adversely on New Zealand’s international well-being or economic well-being.
[54] In a subsequent memorandum of 7 October 2003, the Director clarified the position by confirming that he did not rely on any adverse impacts on New Zealand’s economic well-being. More significantly, I observe that the Director did not rely on paras (a) or (d) of the definition of security in the SIS Act, meaning presumably that he had no apprehension that Mr Zaoui was or would be involved in espionage or terrorism. This is confirmed by the fact that s 73 of the Act is not relied upon as being a relevant security criterion.
[55] In the memorandum of 16 September the Director also provided the following summary of grounds for the security risk certificate:
3.1 Mr Zaoui’s Belgium and French criminal convictions;
3.2the repeated decisions of the Belgium tribunals/courts to decline Mr Zaoui refugee status;
3.3the decision of the Swiss Executive to expel Mr Zaoui from Switzerland;
3.4classified security information providing background to those decisions;
3.5classified security information relating to the period after Mr Zaoui left Switzerland;
3.6classified security information being reports on materials in Mr Zaoui’s possession on arrival and interviews conducted with him in New Zealand;
3.7classified security information being an evaluation of the above material (in paragraphs 3.1 to 3.6 above).
[56] The Director has confirmed in his affidavit of 12 November 2003 at paras 25 and 26 that the SIS concerns about Mr Zaoui do not relate to his activities in Algeria and that the SIS has had no contact with the Algerian authorities about Mr Zaoui. The SIS has only been concerned with Mr Zaoui’s activities since he has left Algeria.
[57] The Minister made a preliminary decision to rely on the Director’s certificate on 23 March 2003 and issued a notice to that effect. Mr Zaoui received that notice on 27 March 2003 and immediately applied to the Inspector-General for a review in terms of s 114I of the Act.
[58] As this is the first time that a security risk certificate has been issued under Part IVA of the Act and consequently the first review by the then Inspector-General, there were various memoranda filed by counsel for Mr Zaoui and by counsel for the Director on the procedure that should be followed in the review. This led to the then Inspector-General, the Honourable Laurence Greig, issuing an interlocutory decision on 6 October 2003 and it is certain aspects of that decision that are the subject of this appeal. On 8 June 2004 the Honourable Paul Neazor became the new Inspector-General.
Interlocutory decision of the then Inspector-General
[59] There are two main aspects of the interlocutory decision of the Honourable Laurence Greig, the then Inspector-General, that were the subject of review proceedings in the High Court.
[60] The first issue was whether the Director is required to provide a summary of the classified security information to Mr Zaoui. The Inspector-General said that he was not – see para 35 of his decision quoted at para [65] below. Williams J held that he was and the Crown has not appealed against that ruling. The other aspect of the interlocutory decision, which is the subject of the Crown appeal and Mr Zaoui’s cross-appeal, is the extent, if any, to which the Inspector-General is required to have regard to international human rights instruments and standards.
[61] On the latter topic, the Inspector-General rejected Mr Zaoui’s submission that the cases of Suresh v Canada (Minister of Citizenship & Immigration) [2002] 1 SCR 3 and Secretary of State for the Home Department v Rehman [2003] 1 AC 153 should be taken into account. In the Inspector-General’s view, those cases are not relevant as they were concerned with deportation while, in this case, the deportation decision is for the Minister. The focus of the Director, and thus the Inspector-General’s role, is, in his view, limited to the question of whether there are reasonable grounds for regarding Mr Zaoui as posing a security danger to New Zealand. He said:
[18]…The decision at this stage is the propriety of the security certificate. The credibility of the information and its appropriate classification and its application to the person in question. Of course deportation or removal is the underlying result and reason for the certificate but the decision on that is for the Minister. The Director’s decision and consideration is focused on the security questions, the threat or danger to security of New Zealand. The IGIS [Inspector-General] is equally limited to that focus. This is even clearer in a case like the present when the applicant has been declared to have a refugee status which at once imposes on the Minister the considerations of the various international conventions as to refoulement and its limitations.
[62] Later, he reiterated his view that general issues of international human rights law were not relevant to his review. He said:
[28] As I have already indicated my view is that the general issues of international jurisprudence are beside the point. My review is as to the propriety of the certificate by an examination of the credibility of the relevant classified information and its application to the appropriate criterion as relevant to the applicant. The deportation issue is for the Minister. I am bound to protect the security matters and thus debar the applicant from being aware of them.
[63] The Inspector-General accepted that the matter involved a serious question with possible grave consequences to Mr Zaoui and thus that it required a careful scrutiny of the material that was before the Director and all the material put forward by Mr Zaoui. He continued:
[19]…That scrutiny is not limited to the date of the certificate. It must follow from the use of the present tense in reference to the credibility of the material and its application to the Applicant that a review must take into account at least information that the applicant may bring forward. Indeed the fact that he is given the opportunity to be heard and call evidence in his support reinforces that continuing scrutiny. It would be vain if the opportunity to give evidence had both [presumably the Inspector-General instead meant ‘no’] real meaning or effect on the review performance.
[20] Moreover the Director has a continuing obligation to keep under consideration his certificate since he has the right or duty to withdraw it. And the IGIS as well as the Director has the right to take into account evidence or information that would not be admissible in Court.
[64] He said, however, that the classified security information could not be provided to Mr Zaoui and that this was an area where the ordinary rights of fairness did not apply:
[21] That said what is classified information as defined which was taken into account cannot be disclosed to the applicant or any body. The IGIS [Inspector-General] is entitled to receive it and to question the Director and has officers as to its credibility and application to the applicant but this is an area where the Bill of Right [sic] BORA and the ordinary right of fairness do not apply. The reason as recognised in this legislation by the objects and the procedure under the IGIS Act is that disclosure would jeopardise the operations of the intelligence service and the security of New Zealand as a whole.
[22] The classified information as defined and as recognised and acknowledged by the IGIS will not be disclosed to the applicant or his Counsel. They will not have any opportunity to make representations about it. The IGIS will review it and giving it consideration will weigh it with the other information which is known to the applicant and which he furnishes to the IGIS.
[65] The Inspector-General said that he had completed the examination of the classified security information relied upon and was satisfied that it was appropriately claimed as classified, although his decision as to whether it was credible would wait until he had heard from Mr Zaoui. He said that no further details of that classified security information would be disclosed to Mr Zaoui. He also said that he was satisfied that the Director had been correct to adopt the definition of security in the SIS Act:
[32] I have examined the files of the Director and have considered and perused the documents and other information that the director has relied upon in making his certificate. I have interviewed him and inquired from him the status of the information as to its classification his reliance on it and the reasoning he adopted in reaching his view that there was a threat to and a danger to security. It may be noted that as Inspector-General since 1996 I have had occasion to consider the classification of information and the principles of security and the meaning that this term has for the intelligence agencies and for New Zealand as a whole. I accept that the Director was correct to adopt the definition of security in the NZ Security Intelligence Service Act 1969.
[35] I am satisfied that the information that led to the making of the certificate included information which is properly regarded as classified security information as defined in the Act. The nature of that information cannot and will not be disclosed to the applicant or his advisors. Nor is it appropriate to divulge any other information about that classified material.
[66] The Inspector-General also made some remarks as to the relevance of the decision of the RSAA granting Mr Zaoui refugee status as follows:
[23] The information and evidence which the IGIS will take into account includes the decision of the RSAA. The actual decision as to the refugee status and the application of Article 1F is I believe binding on me. That is to say I accept that Mr Zaoui has the status of a refugee and that he is not a person to whom the Convention does not apply because the application of Article 1F. I am entitled to take into account and accept as evidence the findings of the RSAA which are part of the decision as to the status and the application of Article 1F. I am entitled to take into account other findings of the RSAA which might be described as obiter dicta but which it has given consideration after weighing the evidence before it. All this is subject to the caveat that the weight of that information as evidence is subject to the fact that the RSAA did not have either classified information before it and that it was not and did not have jurisdiction to considered [sic] and pronounce on the matters of threats or dangers to the security of the [sic] NZ: that is to say the application of Articles 32 and 33 of the Convention.
[24] The reasons for the admission of the findings of the RSAA in my review include the fact that the review is made under the same Act and as part of the one amending act. The RSAA unlike any other authority is to continue its consideration when all other authorities and proceedings are to stop when a security certificate is given. That must give some precedence and special weight to the deliberations and findings of the RSAA. In any case its actual finding as to status is not subject to appeal and is the final word on that particular matter. I have read the RSAA decision and observe that it is a careful and thorough review and consideration of the material before it. It may be noted however that the material was not subject to any cross-examination or rebuttal. Indeed that is it seems the likely course of the hearing before me as to the evidence and submissions to be made by and on behalf of the applicant.
[67] The then Inspector-General’s view that there would probably be no cross‑examination of any of the witnesses called on Mr Zaoui’s behalf was the subject of comment by Williams J in the High Court. He said:
[94] …In essence, if the review proceeds as currently proposed, it seems the Inspector-General will have two bodies of information, each prepared without reference to or in ignorance of the contents of the other, unable to be measured or challenged by the other, and he is required on that material to determine whether the Certificate against Mr Zaoui was properly made.
[68] It is obviously for the Inspector-General to regulate his own procedure but I would not have thought that there was anything in the statutory scheme that would have ruled out cross-examination if the Inspector-General considered this the best way to test the evidence and was fair in all the circumstances (including the fact that Mr Zaoui has no access to the classified security information itself and therefore that any reciprocal cross-examination of the Director and other witnesses would necessarily be limited).
Decision of Williams J
[69] Mr Zaoui filed judicial review proceedings in the High Court challenging aspects of the interlocutory decision. The High Court judgment of Williams J is reported as Zaoui v Attorney-General [2004] 2 NZLR 339. As a preliminary point Williams J rejected the Crown’s submission that the Court had no jurisdiction to review the Inspector-General’s interlocutory decision. I examine this aspect of his decision in more detail below.
[70] On the first issue for the review, Williams J held that the Director should have been required to provide Mr Zaoui with a summary of the classified security information and as much information on the reasons the security risk certificate was issued as could be released without revealing the classified security information itself. He said:
[91] And, while the Inspector-General’s function in reviewing whether the Certificate was “properly made or not” is not an adversarial one in the traditional partisan sense, in evaluating the “classified security information” and its credibility and evaluating whether a “relevant security criterion” properly relates to Mr Zaoui, then, as fairness requires, up to the limit of the statutory bar on divulgment in s114B, he must be entitled to know what that “classified security information” is, why the Director regarded it as credible, why it was thought relevant to a security criterion, and what underlay the Director’s conclusion that he was properly covered by a “relevant security criterion”, that is to say why the Director concluded he constituted a threat to national security or a danger to the security of New Zealand in terms of Article 32.2 of the Refugee Convention. [Presumably the Judge meant art 33.2]….
[106] …However, that “classified security information can be bowdlerised so as still to comply with the definition of “classified security information” that “cannot be divulged” but is still informative as the basis for the Certificate. That would appear to be indicated if not required by the “fairness” and “equally” requirements of s114A(c). Evidence suggested overseas jurisdictions achieve that objective in their summaries of “classified security information”.
[107] As far as it relates to Mr Zaoui the definition of “relevant security criteria” in s114C(4)(6) and the strong terms of s114F make clear that whether a Certificate has been properly issued in the sense of complying with an appropriate security criterion and the effect of the issue of such a Certificate is a serious matter for the individual named. The gravity of those matters may be taken as indicating that, to the extent permissible, Mr Zaoui should know what is raised against him in order to try to rebut it by material he is entitled to put before the Inspector-General and thus ensure the rigour of the process of deciding whether the Certificate was properly made. That is also supported by Mr Zaoui’s entitlement to information and the other significant rights in s114H(2)….
[110] Therefore, seeing s114I in the context of Part IVA particularly s114A, there is nothing to prevent Mr Zaoui receiving an appropriately worded summary of “classified security information” which affects him but which complies with the statutory prohibitions on disclosure, and nothing to say that natural justice has no application to him. Indeed, for the reasons discussed, the legislative indicia favour him, particularly in relation to the summary….
[172] Therefore, all of the matters discussed in this judgment lead to the conclusion that :
(a) s114I in combination s19 of the Inspector-General’s Act do not debar:
(i) the provision to Mr Zaoui of a summary of the allegations against him which underlie the making of the Certificate provided that information does not breach the definition of “classified security information” which “cannot be divulged”. BORA, natural justice, s114I and s19 of the Inspector-General’s Act and Part IVA mandate the provision of such a summary consistent with overseas practice.
(ii) the right of a person charged – or subject to a Certificate to know at least the outline of the allegations against them and the basis on which they are made is one of the most fundamental tenets of natural justice and should be implemented in Mr Zaoui’s case as far as is possible consistent with the definition of “classified security information”.
[71] Although these findings of Williams J were not the subject of this appeal, the Crown, in its submissions, said that the Director did not accept that he must supply a “bowdlerised” version of the classified security information, as that would compromise the security interests, which Part IVA seeks to protect. If the Crown took issue with that aspect of Williams J’s ruling, then that should also have been the subject of appeal. It may be, however, that all that the Crown meant by its submission was that no information or summary can be provided to the extent that that would disclose the classified security information. If that was the submission, then it is undoubtedly correct.
[72] Having said that, as Williams J recognised, what Part IVA protects from disclosure is the classified security information itself. Given the major consequences that the confirmation of a security risk certificate can have for an individual, it is incumbent upon the Director to provide as much information as is possible, without risking the disclosure of the classified security information itself, as to why the Director considers that the criteria set out in paras (a) and (b) in the definition of classified security information are met, as to the content of the classified security information and why it is considered to be credible and as to why the Director considers that the relevant security criteria are met. This is to enable the person to provide evidence and submissions to the Inspector-General on the review with the benefit of as much information as possible. This necessarily means that if, after his review of the material, the Inspector-General is of the opinion that a fuller summary should have been provided, then he must ensure that this is done.
[73] I also note that what is absolutely protected from disclosure is classified security information and not documents containing classified security information. It may thus be that, in some cases, what should be released is the document with the passages of classified security information deleted. This is a familiar process for the courts with interception warrants – see the discussion in Garrow and Turkington's Criminal Law in New Zealand at s 312H.1.
[74] It is trite, too, that, for information to be classified security information, it must satisfy both para (a) and para (b) of the definition. For example, it is not enough that the information might lead to identification of the operational methods available to the SIS, it must also prejudice the security or international relations of New Zealand or meet one of the other criteria in para (b) of the definition. It is not enough that a foreign Government or agency refuses consent to disclosure. Disclosure must also prejudice the entrusting of information to the Government of New Zealand or meet one of the other criteria in para (b). In that regard, absent evidence to the contrary, it would have to be assumed that the foreign Governments or agencies were acting reasonably. Therefore, if the information is of a type, for example, that those Governments or agencies would be required to disclose to Mr Zaoui in a similar judicial or quasi-judicial process in their own jurisdiction, then one would not have thought that disclosure in similar circumstances here would prejudice future information flows. The same applies if the information is classified only because of its immediate source rather than because of its content, as is suggested may often be the case in the affidavit of Mr Buchanan, sworn 30 October 2003 at para 15.
[75] The Inspector-General, in his interlocutory decision at [20] set out above at [63], suggested that the Director has a continuing obligation to keep his certificate under consideration. Without expressing any view on whether the Inspector-General is correct, I would comment that, if further classified security information came into the Director’s hands and that information was provided to the Inspector-General, the Director would then be under a similar obligation with regard to that further information to provide a summary. I also comment that, even if such information was not to be passed to the Inspector-General, I would have thought a summary should still be provided if the further information could be used in giving advice to the Minister in the event that the security risk certificate was confirmed.
[76] I now move to an aspect of Williams J’s decision that has caused concern to Mr Zaoui’s counsel and which purported to form part of the cross-appeal. Williams J considered that the procedure for the review that had been suggested by Mr Zaoui’s counsel had been causative of the Inspector-General’s errors in his interlocutory decision. The procedure suggested by counsel for Mr Zaoui had the decision on whether the information was classified security information being made before hearing from Mr Zaoui. Williams J held that the Inspector-General is obliged to consider all information before coming to his decision on whether the certificate was properly made or not, including on whether the information was classified security information. While this is undoubtedly correct, it is understandable that Mr Zaoui’s counsel wants the decision on whether the information was properly classified to be made (at least in a preliminary fashion) before all of Mr Zaoui’s evidence is presented. This is because, if the decision of the Inspector-General is that the information is not classified security information, then it will be disclosed to Mr Zaoui. Mr Zaoui will then be able to direct his further evidence and submissions to that released information. The Inspector-General, in making his preliminary determination as to whether the information was properly regarded as classified security information, will of course have to consider any material put forward on behalf of Mr Zaoui on that subject. He will also be able to revise the decision if later evidence shows his preliminary assessment is erroneous.
[77] This brings me to another point, which is not the subject of appeal but on which the Crown again made submissions. The Crown submitted that the Inspector-General’s function on review is to consider whether or not there were reasonable grounds for the Director to be satisfied that the information is classified security information and that the relevant security criteria are met. If there were grounds upon which a reasonable Director would be satisfied that a criterion was met, the Crown’s submission is that the Inspector-General may not substitute his own assessment for that of the Director’s. This was not Williams J’s view of the matter – see [86] – [90] of his decision.
[78] Lest silence be taken as acceptance of the Crown submission, I express the view that Williams J was correct and that the Crown contention must fail. Under s 114I(4)(a), the function of the Inspector-General is to determine whether the information was “properly” regarded as classified security information. It does not say that his function is to determine if it was “reasonably” so regarded. Equally, under s 114I(4)(b), the Inspector-General must determine whether the information is credible. Again it does not say the Inspector-General must determine whether it could be “reasonably” regarded as credible and the Crown did not in fact suggest that this could be a possible interpretation of this paragraph. Finally, in s 114I(4)(c), the term “properly” is again used in relation to whether the relevant security criteria are met. The overall test is whether the certificate was “properly” made or not. Again, the term “reasonably” is not used.
[79] This means that, if the Inspector-General comes to a different view from the Director, he is obliged to substitute his view for that of the Director. Even if the word “reasonably” had been used, it is by no means clear that this would have meant that the Crown submission would have succeeded. That the Inspector-General’s review is a substantive review is appropriate, given that a confirmed certificate can lead to very serious consequences for an individual and that the individual in question has no access to the classified security information. This of course does not stop the Inspector-General treating, if he considers it appropriate, the Director’s views with a degree of deference in recognition of the Director’s security expertise. This may apply particularly to the question of whether information is properly classified, especially as the definition in the Act refers specifically to the opinion of the Director on that issue.
[80] It is significant too that, under s 114I(5), the Inspector-General may take into account any relevant information that does not itself meet the definition of classified security information. The Inspector-General is thus not restricted to the information taken into account by the Director. More importantly, the Inspector-General must also consider any relevant material provided by Mr Zaoui. This is information not available to the Director at the time of issuing the certificate, which by its nature will usually be issued on an ex parte basis. If there were no ability for the Inspector-General to substitute his own view for the Director’s, Mr Zaoui’s right to be heard would be rendered nugatory. That right, in itself, requires the Inspector-General’s role to be wider than that contended for by the Crown. The obligation on the Inspector-General to give reasons in s 114J(4) and the right of appeal on points of law from the Inspector-General’s decision in s 114P also support this view.
[81] I now arrive at the part of Williams J’s decision that is the main subject of the Crown appeal and Mr Zaoui’s cross-appeal. Williams J held that the Refugee Convention and other international human rights instruments were only peripherally relevant to the decision that the Inspector-General has to make. They were no doubt of clear relevance to the Minister’s decision as to whether to deport Mr Zaoui or not, if the security risk certificate were upheld, but that was not the issue before the Court. The possible consequences to Mr Zaoui did mean, however, that the Inspector-General should subject the relevant security criteria to rigorous examination. Williams J said :
[114] There can be no dispute that to the extent mandated by the statutory provisions, Mr Zaoui’s position should be assessed conformably with the Refugee Convention. The difficulty he faces is the extent to which the statute, Part IVA in particular and s114I especially, limit the applicability of those instruments. The decision must be that though they inform construction of Mr Zaoui’s rights and in particular the right not to be deported or refouled unless the Refugee Convention permits because he is protected from deportation under s129X, so far as Mr Zaoui is concerned, Part IVA and, in particular, s114I focus on a consideration as to whether the Certificate relating to Mr Zaoui was “properly” made in light of the information on which it was based and the material Mr Zaoui is entitled to place before the Inspector-General. The Refugee Convention is relevant but only of secondary relevance in those respects. The balance of the Act is of little assistance in this case as it deals with a number of distinct matters. …
[139] Further protection for Mr Zaoui if his deportation is to be considered is the fact that “expulsion measures against a refugee should only be taken in very exceptional cases and after due consideration of all the circumstances” (UNHCR Executive Committee Conclusion No 7 1977 “Expulsion”), a stance strongly supported by leading texts in the area. They include Goodwin-Gill (The Refugee in International Law, 2nd ed 1996, p143) which says “the principle of non-refoulement has crystallized into a rule of customary international law, the core element of which is the prohibition of return in any manner whatsoever of refugees to countries where they may face persecution” (emphasis in original) and Lauterpacht and Bethlehem (“The Scope and Content of the Principle of Non-refoulement” in Feller Tűrk and Nicholson, “Refugee Protection in International Law” para 132, p125) who say “there is now an absolute prohibition on refoulement where there is a real risk that the person concerned may be subjected to torture or cruel, inhuman or degrading treatment or punishment” (see also paras 52, 53, p107 and their summary, para 144 p127-128). …
[141] Those arguments are persuasive but this judicial review does not involve deportation. Such will only arise if the Certificate is confirmed, any appeal is dismissed and the Minister decides after taking the international human rights instruments and all other material into account, that Mr Zaoui should be deported because s129X does not protect him and Articles 32.1 and 33.2 permit his deportation. All that can be said at this stage is that all the matters discussed indicate that in deciding whether the Certificate was “properly made or not” the Inspector-General may consider it appropriate to subject the “relevant security criterion” aspect of his consideration to rigorous examination.
[82] Despite the finding that the decision of the Inspector-General was limited to deciding whether the certificate was properly made or not, Williams J held that the Inspector-General should have regard to international human rights instruments but the relevance and weight he accorded them was a matter for him. He said:
[172] Therefore, all of the matters discussed in this judgment lead to the conclusion that :
a)s114I in combination with s19 of the Inspector-General’s Act do not debar: …
(iii) Apart from the limitation that evidence called by Mr Zaoui – as opposed to evidence given by him – must relate to his “record, reliability and character”, there is no statutory limitation on the evidence and submissions which he is entitled to put before the Inspector-General for consideration as part of the determination whether the Certificate was “properly made or not”. That involves simultaneous consideration of material provided pursuant to the two statutory routes to that decision discussed in the judgment. Having regard to the history of this matter to date, it will undoubtedly involve reference to the international human rights instruments and international human rights jurisprudence.
(iv) It is for the Inspector-General to decide what relevance and weight he accords the international human rights instruments and international human rights jurisprudence but having regard to the discussion on s114I, Part IVA, the balance of the Act, BORA in particular, the international human rights instruments and the international human rights jurisprudence, the comment by the Inspector-General (para [28]) that the “general issues of international jurisprudence are beside the point”, cannot be a correct statement of the position.
[83] As an aside, I would comment that I would not see Mr Zaoui limited in the evidence he can call from other parties to evidence concerning his “record, reliability and character”. Given the importance of the decision that the Inspector-General must make and the serious consequences for Mr Zaoui, it is vital that the Inspector-General make his decision based on all relevant evidence. Section 19(4) of the I‑G Act would, therefore, be modified accordingly (see s 114I(6)(b) of the Act), a necessary modification to ensure that all relevant evidence is before the Inspector-General. This is not to suggest that all such evidence should necessarily be presented orally. In this regard, however, I note the powers of the Inspector-General, as set out in s 23(1) and (2) of the I-G Act, to require the production of documents and to summon and examine witnesses.
Events since Williams J’s judgment
[84] As indicated above, after Williams J’s judgment and, as a consequence of the decision of the High Court in Zaoui v Greig HC AK CIV-2004-404-000317, 31 March 2004 the then Inspector-General, the Honourable Laurence Greig, resigned. The new Inspector-General will of course not be bound by the previous Inspector-General’s work, including the interlocutory judgment. Indeed, the new Inspector-General will have to recommence the review process. Despite this, it would be unsatisfactory if the new Inspector-General was left in a state of uncertainty as to whether or not the interlocutory decision of his predecessor was correct in law. I consider, therefore, that this appeal still has utility and neither of the parties sought to argue otherwise (subject obviously to the Crown’s preliminary point relating to the unavailability of judicial review).
[85] I also observe that the Director, after Williams J’s decision, supplied Mr Zaoui with a document, dated 27 January 2004 and entitled “Summary of Allegations and Reasoning of the Director of Security in Making a Security Risk Certificate about Mr Ahmed Zaoui”. In that document, the Director refers to a video that Mr Zaoui had made during his journey overland from Malaysia via Thailand and Laos to Vietnam and to a point of security concern relating to the veracity of an answer Mr Zaoui gave in an interview with an Arabic-speaking SIS officer (although the question this related to was not disclosed). It also refers again to the Belgian and French convictions and the expulsion from Switzerland and classified security information relating to those issues. Finally, the Director gives a summary of the reasons for considering Mr Zaoui a security concern in terms of the limbs of the definition of security relied on by the Director. The document says:
His reasoning is as follows, in the form of comment on each section of the definition. It is based both on the publicly known security-related European decisions and convictions and related unclassified information and on classified security information which cannot be divulged.
· “The protection of New Zealand from activities within or relating to New Zealand that-”
It is reasonable to suspect that if permitted to settle in New Zealand Mr Zaoui would in due course undertake, facilitate, promote or encourage activities like those of which he was convicted in Belgium and France and/or which the Swiss government decided endangered Switzerland’s domestic and external security. His presence here would attract, both directly (people who wish to work with him) and indirectly (people encouraged to believe that New Zealand is a safe haven for people with his sort of record), other people likely to engage in activities of security concern.
· “Are influenced by any foreign organisation or any foreign person; and”
Mr Zaoui is a foreign person. He has a long record of involvement with foreign persons and foreign organisations, including leadership. There is good reason to believe that any future activities he may undertake will be influenced by other foreign persons and/or by foreign organisations.
· “Are clandestine or deceptive, or threaten the safety of any person; and”
The activities of which he was convicted in Belgium and France were clandestine or deceptive or threatened the safety of persons. The Swiss government believed that his activity in Switzerland “may lead to acts of violence, and even attacks, in Switzerland”. Activities of this kind in New Zealand, by Mr Zaoui or by others attracted to New Zealand by his presence here, could threaten the safety of New Zealanders.
· “Impact adversely on New Zealand’s international well-being”
As part of the international community it is New Zealand’s responsibility to take its proper part in controlling, defeating and preventing activities of security concern, such as those of which Mr Zaoui has been convicted in Belgium and France and for which he was deported from Switzerland. Consistent with this, it is a government objective to ensure that New Zealand is neither the victim nor the source of acts of terrorism or other activities of security concern, and to prevent New Zealand from being or becoming a safe haven for people who have undertaken, or may be intending to undertake, such activities.
If Mr Zaoui, with his public record, were allowed to settle here, that would indicate that New Zealand has a lower level of concern about security than other like-minded countries. That would impact adversely on New Zealand’s reputation with such countries and thus on New Zealand’s international well-being.
If Mr Zaoui or other people attracted to New Zealand by his presence here, were to undertake, facilitate, promote or encourage activities of security concern, either in New Zealand or elsewhere from within New Zealand, the adverse impact on New Zealand’s reputation and thus on its international well-being would be compounded.
(5) Where a member of the Police serves a notice on a person under subsection (4), that member or any other member of the Police must arrest the person without warrant and place the person in custody.
(6) A person arrested under subsection (5) must be brought before a District Court Judge as soon as possible, and may in no case be detained for more than 48 hours unless, within that period, a Judge issues a warrant of commitment under section 114O for the continued detention of the person in custody.]
114H Rights of person in respect of whom security risk certificate given and relied on
(1) A person on whom a Ministerial notice is served under section 114G(4)(d) or who receives notification under section 114G(2)(d) may, under section 114I, seek a review by the Inspector-General of Intelligence and Security of the decision of the Director of Security to make the security risk certificate.
(2) A person who seeks a review under section 114I may—
(a) Be represented, whether by counsel or otherwise, in his or her dealings with the Inspector-General; and
(b) Have access, to the extent provided by the Privacy Act 1993, to any information about the person other than the classified security information; and
(c) Make written submissions to the Inspector-General about the matter, whether or not the person also wishes to be heard under section 19(4) of the Inspector-General of Intelligence and Security Act 1996 (as applied by section 114I(6) of this Act).
(3) No action may be taken to remove or deport the person on whom a notice served under section 114G(4)(d) remains in force unless and until section 114K applies in respect of the person.
(4) No review proceedings may be brought in any court in respect of the certificate or the Director's decision to make the certificate.]
114I REVIEW OF CERTIFICATE
(1) A person on whom a Ministerial notice is served under section 114G(4)(d) may, within 5 days of its service, apply in the prescribed manner for a review of the decision to make the security risk certificate upon which the notice is based.
(2) A person to whom a Ministerial notice is notified under section 114G(2)(d) may, within 28 days of the notification, apply in the prescribed manner for a review of the decision to make the security risk certificate upon which the notice is based.
(3) The review is to be conducted by the Inspector-General of Intelligence and Security with all reasonable speed and diligence.
(4) The function of the Inspector-General on a review is to determine whether—
(a) The information that led to the making of the certificate included information that was properly regarded as classified security information; and
(b) That information is credible, having regard to the source or sources of the information and its nature, and is relevant to any security criterion; and
(c) When a relevant security criterion is applied to the person in light of that information, the person in question is properly covered by that criterion—
and thus whether the certificate was properly made or not.
(5) In carrying out a review, the Inspector-General may take into account any relevant information that does not itself meet the definition of classified security information.
(6) For the purposes of a review under this section—
(a) The Inspector-General has all the powers conferred on him or her by the Inspector-General of Intelligence and Security Act 1996; and
(b) Sections 13, 19 (except subsections (1)(b) and (2)), 20, 21, 22, 23, 24, 26, 28, and 29 of that Act, with any necessary modifications, apply to the review; and
(c) The chief executive of the Department of Labour must provide the Inspector-General with any file relating to the appellant, and any other relevant information, that is held by the chief executive.
(7) For the purposes of a review under this section, the chief executive of the Department of Labour must, as soon as practicable after finding out that the review is lodged, notify to the Inspector-General the name and contact details of an officer of the Department of Labour who may accept service on behalf of the chief executive of notices and matters relating to the review.]
114J RESULT OF REVIEW
(1) If on a review under section 114I the Inspector-General decides that the security risk certificate was properly made, the consequences set out in section 114K apply following notification of the decision to the person who sought the review.
(2) If the Inspector-General decides that the certificate was not properly made, the person who sought the review must be released from custody immediately, and normal immigration processes must resume in accordance with section 114L following notification of the decision to the person who sought the review.
(3) As soon as possible after reaching a decision on the review, the Inspector-General must notify the decision—
(a) To the person who sought the review, by way of personal service in the case of a person in New Zealand; and
(b) To the Minister; and
(c) By personal service to the chief executive of the Department of Labour or to such other officer of the Department of Labour as the chief executive has notified to the Director-General { sic ? Inspector-General } under section 114I(7) as a person who can accept service on behalf of the chief executive; and
(d) To the Director of Security.
(4) The decision of the Inspector-General must be accompanied by reasons, except to the extent that the giving of reasons would itself be likely to prejudice the interests that this Part seeks to protect in relation to the classified security information.
(5) The Inspector-General may make recommendations in relation to the payment of costs or expenses of the person who has sought the review.]
114K EFFECT OF CONFIRMATION OF CERTIFICATE, OR FAILURE TO SEEK REVIEW
(1) Where—
(a) A security risk certificate has been confirmed under section 114J(1); or
(b) The certificate is confirmed to the extent that no review has been applied for under section 114I within 5 days (or 28 days, in the case of a person who is not in New Zealand) after the serving of a Ministerial notice under section 114G(2)(d) or (4)(d),—
the Minister must make a final decision within 3 working days whether to rely on the confirmed certificate and accordingly to direct the chief executive in writing to act in reliance on the certificate under subsection (3).
(2) In making a final decision under subsection (1) the Minister may seek information from other sources and may consider matters other than the contents of the certificate.
(3) On receipt of a direction from the Minister under subsection (1) to rely on the confirmed certificate, the chief executive must ensure that—
(a) Where the person's case was before the Tribunal, an Authority, [the Board,] the District Court, or High Court before the certificate was made, the relevant body is immediately notified in the prescribed manner of the Inspector-General's determination or the failure to seek review, so that it can dismiss the matter in reliance on this section; or
(b) In any other case, an appropriate decision is made in reliance on the relevant security criterion as soon as practicable.
(4) In either event, the chief executive must ensure that—
(a) Any visa or permit that the person still holds is cancelled or revoked, without further authority than this section, and in such case the cancellation or revocation takes effect immediately and without any right of appeal or review; and
(b) If a removal order or deportation order is not already in existence, an appropriate person who may make such an order makes the relevant order immediately without further authority than this section, and the person is removed or deported, unless protected from removal or deportation under section 114Q or section 129X; and
(c) In the case of a person who is protected from removal or deportation by section 129X, the person is released from custody and is given an appropriate temporary permit.
(5) On receipt of the appropriate notification under subsection (3)(a) by the Tribunal, Authority, [Board,] District Court, or High Court considering the matter, the proceedings in question immediately lapse, and are to be treated as having been dismissed.
(6) Where this section applies, the person who is the subject of the certificate has no further right of appeal or review under this Act.
(7) The Minister is not obliged to give reasons for his or her decision to give a direction under this section, and section 23 of the Official Information Act 1982 does not apply in respect of the decision.]
114L Resumption of normal immigration processes where certificate not confirmed on review, or certificate or Ministerial notice withdrawn
(1) This section applies in respect of a person named in a Ministerial notice given under section 114G if—
(a) The Inspector-General has given notice under section 114J that the certificate was not properly made; or
(b) The certificate is withdrawn under section 114M; or
(c) The Ministerial notice is withdrawn under section 114N, or the Minister decides under that section that the relevant security criterion should not be applied to the person in question, or decides under section 114N to revoke his or her decision to rely on the confirmed certificate; or
(d) The Minister fails to make a final decision in respect of the certificate within the period of 3 working days referred to in section 114K(1).
(2) Where this section applies, the chief executive must ensure that—
(a) The person is released from custody immediately; and
(b) Any immigration processing or appeal that was stopped in reliance on section 114G immediately recommences; and
(c) The person is advised, if any application or other matter had not been accepted for processing in reliance on section 114G(4)(b), that the application or matter will now be accepted for processing; and
(d) Where the person's case was before the Tribunal, an Authority, [the Board,] the District Court, or High Court before the certificate was made, the relevant body is immediately notified in the prescribed manner of the failure to confirm the certificate or the withdrawal of the certificate or Ministerial notice or other relevant Ministerial decision, so that it can resume consideration of the matter that was before it.
(3) Where any proceedings have lapsed under section 114K(5) by reason of notification under section 114K(3)(a) of the Minister's decision to rely on a confirmed security risk certificate,—
(a) Those proceedings will nevertheless be treated as not having lapsed if notification of a revocation of that decision is received by the relevant Tribunal, Authority, [the Board,] or Court under subsection (2)(d) of this section; and
(b) Those proceedings continue accordingly from the time of notification of the revocation, with any time limits relating to the proceedings extended by the period of any lapse under section 114K(5).
(4) Where any immigration processing or appeal recommences under subsection (2)(b), or commences as a result of advice given under subsection (2)(c), the officer or body concerned is not to take into account the fact that the provisions of this Part had been applied to the person.
114M WITHDRAWAL OF SECURITY RISK CERTIFICATE BY DIRECTOR
(1) Nothing in this Part prevents the Director from withdrawing a certificate in relation to any person at any time by notifying the Minister accordingly.
(2) If the Minister has already relied on the certificate, the Minister must immediately inform the chief executive of the Department of Labour of the withdrawal.
(3) If the Director withdraws a certificate, section 114L then applies.
114N MINISTER MAY WITHDRAW NOTICE, OR DECLINE TO USE CERTIFICATE
(1) Nothing in this Part prevents the Minister from—
(a) Withdrawing a notice given under section 114G at any time by notifying the chief executive of the Department of Labour accordingly; or
(b) Where a security risk certificate has been confirmed by the Inspector-General, deciding nevertheless that the relevant security criterion should not be applied to the person in question, and notifying the chief executive accordingly; or
(c) Revoking a decision under section 114K to rely on the confirmed certificate, and notifying the chief executive accordingly.
(2) On any notification to the chief executive under subsection (1), section 114L then applies….
114P APPEAL ON POINT OF LAW FROM DECISION OF INSPECTOR-GENERAL
(1) If the person named in a security risk certificate that is confirmed by the Inspector-General under section 114J is dissatisfied with the decision of the Inspector-General as being erroneous in point of law, the person may, with the leave of the Court of Appeal, appeal to the Court of Appeal.
(2) Any such appeal must be brought—
(a) In the case of a person who is in New Zealand at the time of notification, within 3 working days of being notified of the Inspector-General's decision under section 114J(3)(a):
(b) In the case of a person who is not in New Zealand at the time of notification, within 28 days of being notified of the Inspector-General's decision.
(3) The Court of Appeal may, at any time on or before determining the appeal, or determining whether or not to grant leave to appeal, give such directions and make such orders as it thinks appropriate in the circumstances of the case.
(4) Subject to this section and this Part, section 66 of the Judicature Act 1908, and any rules of Court, apply with any necessary modifications to an appeal under this section as if it were an appeal from a determination of the High Court.
114Q PROHIBITION ON REMOVAL OR DEPORTATION OF REFUGEE STATUS CLAIMANT
Despite anything in this Part, no person who is a refugee status claimant may be removed or deported from New Zealand until the refugee status of that person has been finally determined under Part 6A.
Part VIA—Refugee determinations
129X Prohibition on removal or deportation of refugee or refugee status claimant
(1) No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.
(2) In carrying out their functions under this Act in relation to a refugee or refugee status claimant, immigration officers must have regard to the provisions of this Part and of the Refugee Convention.
B: INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY ACT 1996
19. Proceedings of Inspector-General
(1) The Inspector-General, on commencing an inquiry,—
(a) Shall notify the chief executive of the relevant intelligence and security agency of both the commencement of the inquiry and the nature of the inquiry; and …
(3) If the inquiry relates to a complaint, the Inspector-General may require the complainant to give on oath any information relating to the complaint, and may for that purpose administer an oath to the complainant.
(4) The Inspector-General shall permit the complainant to be heard, and to be represented by counsel or any other person, and to have other persons testify to the complainant's record, reliability, and character.
(5) In accordance with the foregoing provisions of this section, the Inspector-General may receive such evidence as the Inspector-General thinks fit, whether admissible in a Court of law or not.
(6) Every inquiry by the Inspector-General shall be conducted in private.
(7) If at any time during the course of an inquiry it appears to the Inspector-General that there may be sufficient grounds for making any report or recommendation that may adversely affect an intelligence and security agency, or any employee of an intelligence and security agency, or any other person, the Inspector-General shall give to that intelligence and security agency, employee, or person an opportunity to be heard.
(8) Subject to the provisions of this Act, the Inspector-General shall regulate his or her procedure in such a manner as the Inspector-General thinks fit.
(9) Except on the ground of lack of jurisdiction, no proceeding, report, or finding of the Inspector-General shall be challenged, reviewed, quashed, or called in question in any Court.
23 POWERS OF INSPECTOR-GENERAL IN RELATION TO INQUIRIES
(1) The Inspector-General may require any person who, in the Inspector-General's opinion, is able to give information relating to any matter to which an inquiry relates to furnish such information, and to produce such documents or things in the possession or under the control of that person, as in the opinion of the Inspector-General are relevant to the subject-matter of the inquiry.
(2) The Inspector-General may summon and examine on oath any person who in the opinion of the Inspector-General is able to give any information relating to any matter to which an inquiry relates, and may for the purpose administer an oath to any person so summoned.
(3) Every such examination by the Inspector-General shall be deemed to be a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
(4) Subject to subsection (5) of this section, every person who appears as a witness before the Inspector-General shall have the same privileges in relation to the giving of information, the answering of questions, and the production of documents and papers and things as witnesses have in Courts of law.
C: NEW ZEALAND SECURITY INTELLIGENCE SERVICE ACT 1969
2 Interpretation
Security means—
(a) The protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed within New Zealand:
(b) The identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international well-being or economic well-being:
(c) The protection of New Zealand from activities within or relating to New Zealand that—
(i) Are influenced by any foreign organisation or any foreign person; and
(ii) Are clandestine or deceptive, or threaten the safety of any person; and
(iii) Impact adversely on New Zealand's international well-being or economic well-being:
(d) the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act
terrorist act has the same meaning as in section 5(1) of the Terrorism Suppression Act 2002
4 FUNCTIONS OF NEW ZEALAND SECURITY INTELLIGENCE SERVICE
(1) Subject to the control of the Minister, the functions of the New Zealand Security Intelligence Service shall be—
(a) To obtain, correlate, and evaluate intelligence relevant to security, and to communicate any such intelligence to such persons, and in such manner, as the Director considers to be in the interests of security:
(b) To advise Ministers of the Crown, where the Director is satisfied that it is necessary or desirable to do so, in respect of matters relevant to security, so far as those matters relate to Departments or branches of the State Services of which they are in charge:
(ba) To advise any of the following persons on protective measures that are directly or indirectly relevant to security:
(i) Ministers of the Crown or Government departments:
(ii) Public authorities:
(iii) Any person who, in the opinion of the Director, should receive the advice:
(bb) To conduct inquiries into whether particular individuals should be granted security clearances, and to make appropriate recommendations based on those inquiries:
(bc) To make recommendations in respect of matters to be decided under the Citizenship Act 1977 or the Immigration Act 1987, to the extent that those matters are relevant to security:
D. TERRORISM SUPPRESSION ACT 2002
5 TERRORIST ACT DEFINED
(1) An act is a terrorist act for the purposes of this Act if—
(a) the act falls within subsection (2); or
(b) the act is an act against a specified terrorism convention (as defined in section 4(1)); or
(c) the act is a terrorist act in armed conflict (as defined in section 4(1)).
(2) An act falls within this subsection if it is intended to cause, in any 1 or more countries, 1 or more of the outcomes specified in subsection (3), and is carried out for the purpose of advancing an ideological, political, or religious cause, and with the following intention:
(a) to induce terror in a civilian population; or
(b) to unduly compel or to force a government or an international organisation to do or abstain from doing any act.
(3) The outcomes referred to in subsection (2) are—
(a) the death of, or other serious bodily injury to, 1 or more persons (other than a person carrying out the act):
(b) a serious risk to the health or safety of a population:
(c) destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs (a), (b), and (d):
(d) serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life:
(e) introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.
(4) However, an act does not fall within subsection (2) if it occurs in a situation of armed conflict and is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict.
(5) To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person—
(a) is carrying out an act for a purpose, or with an intention, specified in subsection (2); or
(b)intends to cause an outcome specified in subsection (3).
13 Participating in terrorist groups
(1) A person commits an offence who participates in a group or organisation for the purpose stated in subsection (2), knowing that the group or organisation is—
(a) an entity that is for the time being designated under this Act as a terrorist entity; or
(b) an entity that carries out, or participates in the carrying out of, 1 or more terrorist acts.
(2) The purpose referred to in subsection (1) is to enhance the ability of any entity (being an entity of the kind referred to in subsection (1)(a) or (b)) to carry out, or to participate in the carrying out of, 1 or more terrorist acts.
(3) A person who commits an offence against subsection (1) is liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
22 FINAL DESIGNATION AS TERRORIST OR ASSOCIATED ENTITY
(1) The Prime Minister may designate an entity [a person, group, trust, partnership, or fund, or an unincorporated association or organisation] as a terrorist entity under this section if the Prime Minister believes on reasonable grounds that the entity has knowingly carried out [planning or other preparations to carry out the act, whether it is actually carried out or not, a credible threat to carry out the act, whether it is actually carried out or not, an attempt or the carrying out of the act], or has knowingly participated in the carrying out of, 1 or more terrorist acts.
(2) On or after designating an entity as a terrorist entity under this Act, the Prime Minister may designate 1 or more other entities as an associated entity under this section.
(3) The Prime Minister may exercise the power given by subsection (2) only if the Prime Minister believes on reasonable grounds that the other entity—
(a) is knowingly facilitating the carrying out of 1 or more terrorist acts by, or with the participation of, the terrorist entity (for example, by financing those acts, in full or in part); or
(b) is acting on behalf of, or at the direction of,—
(i) the terrorist entity, knowing that the terrorist entity has done what is referred to in subsection (1); or
(ii) an entity designated as an associated entity under subsection (2) and paragraph (a), knowing that the associated entity is doing what is referred to in paragraph (a); or
(c) is an entity (other than an individual) that is wholly owned or effectively controlled, directly or indirectly, by the terrorist entity, or by an entity designated under subsection (2) and paragraph (a) or paragraph (b).
(4) Before designating an entity as a terrorist or associated entity under this section, the Prime Minister must consult with the Attorney-General about the proposed designation.
E: CONVENTION RELATING TO THE STATUS OF REFUGEES
189 UNTS 150, entered into force 22 April 1954
PREAMBLE
The High Contracting Parties,
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.
Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms.
Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement.
Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognised the international scope and nature cannot therefore be achieved without international co-operation.
Expressing the wish that all States, recognising the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States.
Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognising that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner.
Have agreed as follows:
CHAPTER 1 – GENERAL PROVISIONS
Article 1 – Definition of the term “refugee”
A.For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(i)Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organisation;
(ii)Decisions of non-eligibility taken by the International Refugee Organisation during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(iii)As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
(iv)In the case of a person who has more than on nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national. …
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.
ARTICLE 32 – EXPULSION
1.The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2.The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3.The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Article 33 – Prohibition of expulsion or return (“refoulement”)
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.
2.The benefit of the present 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 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 42 – Reservations
1.At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16(1), 33, 36-46 inclusive.
2.Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations.
F: VIENNA CONVENTION ON THE LAW OF TREATIES
1155 UNT 5331 entered into force 27 January 1980
Article 31 General rule of interpretation
(1)A treaty shall 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.
(2)The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a)any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b)any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
(3)There shall be taken into account, together with the context:
(a)any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b)any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c)any relevant rules of international law applicable in the relations between the parties.
(4)A special meaning shall be given to a term if it is established that the parties so intended.
ARTICLE 32 SUPPLEMENTARY MEANS OF INTERPRETATION
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a)leaves the meaning ambiguous or obscure; or
(b)leads to a result which is manifestly absurd or unreasonable.
Article 53Treaties conflicting with a peremptory norm of general international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Article 64 Emergence of a new peremptory norm of general international law (jus cogens)
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
Solicitors:
Crown Law Office, Wellington for Appellant
McLeod & Associates, Auckland for First Respondent
Bell Gully, Wellington for Second Respondent
0
0