Attorney-General v Zaoui - [2004] NZCA 244

IN THE COURT OF APPEAL OF NEW ZEALAND
CA20/04

BETWEENTHE ATTORNEY-GENERAL

Appellant

ANDAHMED ZAOUI

First Respondent
ANDTHE INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY

Second Respondent
ANDTHE HUMAN RIGHTS COMMISSION

Intervener

Hearing:10-11 May 2004

Coram:Anderson P
Glazebrook J
William Young J
Appearances: 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] NZCA 244
Decision Date: 30 September 2004

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the Attorney-General brought an appeal against the decision of Williams J in Zaoui v Attorney-General [2004] 2 NZLR 339 (High Court). The appeal concerns the extent of the review function of the Inspector-General of Intelligence and Security when reviewing a security risk certificate issued under Part IVA of the Immigration Act 1987. Ahmed Zaoui, an Algerian national who has been recognised as a refugee in New Zealand, is the subject of a security risk certificate issued by the Director of the New Zealand Security Intelligence Service. If the certificate is confirmed, it could lead to Mr Zaoui’s deportation from New Zealand. The Crown contends that the Inspector-General’s review is solely on issues of security and that international human rights instruments and jurisprudence are not relevant. Mr Zaoui contends that the Inspector-General is required to weigh Mr Zaoui’s human rights against the security interests of New Zealand when deciding whether the security risk certificate was properly made. The Crown also 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. The Court dismissed the Attorney-General’s appeal and allowed Mr Zaoui’s cross-appeal, declaring that the Inspector-General is required to have regard to international human rights instruments and jurisprudence when deciding whether the security risk certificate was properly made.

Orders