AW (Kiribati) v A Refugee and Protection Officer
[2023] NZHC 1806
•11 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-002428
[2023] NZHC 1806
UNDER the Immigration Act 2009 and Rule 20.3 of the High Court Rules IN THE MATTER OF
an application for leave to appeal under Section 245 of the Immigration Act 2009
BETWEEN
AW (Kiribati) Applicant
AND
A REFUGEE AND PROTECTION OFFICER
Respondent
Hearing: 31 May 2023 Appearances:
D J Allan for Applicant
A J Ewing and S M Perera for Respondent
Judgment:
11 July 2023
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 11 July 2023 at 3:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors: D J Allan, Hamilton
Jane Walker, Hamilton Crown Law, Wellington
AW (Kiribati) v A REFUGEE AND PROTECTION OFFICER [2023] NZHC 1806 [11 July 2023]
[1] AW is a citizen of Kiribati who has been resident in New Zealand since 2008. He faces deportation following his conviction and imprisonment for serious offending in New Zealand against another Kiribati citizen. AW seeks leave to appeal the decision of the Immigration and Protection Tribunal (the Tribunal) declining AW’s appeal against a decision of a Refugee and Protection Officer declining AW refugee status or protected person status.1 AW’s claims to refugee and protected person status were based principally on the risks he would face from the impacts of climate change if required to return to Kiribati.
[2] AW says the Tribunal made errors of law which raise issues of general or public importance that warrant proper consideration on appeal.
[3] The Solicitor-General, on behalf of the Refugee and Protection Officer, opposes leave to appeal. The Solicitor-General says the Tribunal correctly understood the law and applied it to the facts. Accordingly, no seriously arguable question of law and no issue of general or public importance arises.
AW’s grounds of appeal
[4] AW’s grounds of appeal evolved from those stated in his Notice of Application for Leave to Appeal and his Notice of Appeal, both dated 25 November 2022.
[5] In written submissions filed before the hearing, AW’s counsel, Mr Allan, said AW’s grounds of appeal were that the Tribunal:
(a)did not correctly apply its decision in BG (Fiji) and failed to assess AW’s predicament in a principled and objective way;2
(b)failed to decide whether the Convention relating to the Status of Refugees (the Refugee Convention) should extend to claims based on socio-economic deprivation and climate change; and
1 AW (Kiribati) [2022] NZIPT 802085.
2 BG (Fiji) [2012] NZIPT 800091.
(c)failed to decide whether Article 6 of the International Covenant on Civil and Political Rights (ICCPR) should extend to refugee claims based on socio-economic deprivation and climate change.
[6] At the hearing before me on 31 May 2023, the first ground of appeal evolved into the ground that the Tribunal breached natural justice by failing to give notice of an intention to make adverse findings of fact despite acknowledging the constraints on AW’s ability to adduce evidence relevant to those findings.
[7] Because no notice of this amended ground had been given in advance of the hearing, I gave leave to the Solicitor-General to file a memorandum on this question after the hearing. A memorandum opposing leave to appeal based on this ground was duly filed on behalf of the Solicitor-General.
Basis on which leave to appeal may be granted
[8] Section 245(1) of the Immigration Act 2009 provides that a party to an appeal before the Tribunal who is dissatisfied with any determination of the Tribunal as being erroneous in point of law, may, with the leave of the High Court, appeal to the High Court on that question of law.
[9] Section 245(3) provides that, in determining whether to grant leave to appeal, the Court must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
Definition of “refugee” in Refugee Convention
[10] Article 1A(2) of the Refugee Convention, as amended by the Protocol relating to the Status of Refugees, provides that a refugee is a person who:
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, is unable or, owing to such fear, is unwilling to return to it.
Other relevant provisions of Immigration Act 2009
[11]Section 125 of the Immigration Act relevantly provides:
(1)Every person who seeks recognition as a refugee in New Zealand under the Refugee Convention must have that claim determined in accordance with this Act.
(2)Every person who seeks recognition as a protected person in New Zealand must have that claim determined in accordance with this Act.
(3)Every question as to whether a person should continue to be recognised as a refugee in New Zealand or as a protected person in New Zealand must be determined in accordance with this Act.
[12] Section 129 provides that a person must be recognised as a refugee in accordance with the Act if he or she is a refugee within the meaning of the Refugee Convention. Further, a person who has been recognised as a refugee cannot be deported from New Zealand except in certain circumstances that do not apply in the present case.
[13] Section 131 provides that a person must be recognised as a protected person in New Zealand under the ICCPR if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand. The section also provides that a person must not be recognised as a protected person under the ICCPR if he or she is able to access meaningful domestic protection in his or her country. A person who has been recognised as a protected person cannot be deported from New Zealand except in certain circumstances that do not apply in the present case.
[14] Section 207 provides that the Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
[15] Section 226 provides that it is the responsibility of an appellant to establish his or her claim, and the appellant must ensure that all information, evidence, and
submissions that he or she wishes to have considered in support of the appeal are provided to the Tribunal before it makes its decision.
[16] Section 228 provides that, when considering an appeal, the Tribunal may seek information from any source. However, the Tribunal is not obliged to seek any information, evidence, or submissions further to those provided by the appellant and the Minister, the chief executive, or a refugee and protection officer (as the case may be), and may determine the appeal or matter only on the basis of the information, evidence, and submissions provided by those persons.
The Tribunal decision
[17] The Tribunal recorded that AW claimed to have a well-founded fear of being persecuted or to be in danger of being subject to another qualifying form of harm on the following grounds:3
(a)he would be at risk of being killed or seriously harmed in a revenge attack by the family of the victim of AW’s offending in New Zealand;
(b)he would be at risk of suffering a level of socio-economic deprivation amounting to being persecuted or to degrading treatment; and
(c)overlapping with the second ground, his safety and well-being would be adversely impacted by climate change in ways amounting to being persecuted or to arbitrary deprivation of life or cruel treatment.
[18]The Tribunal recorded that:
[3] The principal issues to be determined are whether the appellant’s fear of a revenge attack is well-founded and, if so, whether effective protection will be available to him so as to reduce the risk of such an attack to below the real chance threshold; whether the appellant’s anticipated socioeconomic predicament in Kiribati can amount to being persecuted or degrading treatment; and whether the risk to the appellant’s safety and well-being due to the adverse impacts of climate change amounts, in law, to being persecuted, or to arbitrary deprivation of life or cruel treatment and if so, whether the risk of these harms arising reaches the requisite standard of risk.
3 AW (Kiribati)¸ above n 1, at [2].
[19] The Tribunal recorded that it had provided information about Kiribati to counsel in the course of the appeal, that counsel made closing submissions at the conclusion of the hearing and had filed further submissions and further evidence after the hearing.4
Evidence of AW’s circumstances
[20] The Tribunal summarised the evidence of AW concerning his life in Kiribati before and after he moved to New Zealand in 2008. It said AW presented as a credible witness and accepted AW’s account of his background circumstances. It also accepted that AW genuinely held subjective fears of retribution (from the family of the person against whom AW offended), impoverishment and risk to his safety and well-being due to the adverse effects of climate change.5
[21]The Tribunal summarised the relevant facts as found as follows:
[34] The appellant is a married man aged in his mid-50s. He has three surviving siblings: a brother (a policeman) and two surviving sisters. The elder of his two sisters is a teacher and is married; the other is married to a policeman and lives in Besio on South Tarawa.
[35] The appellant met his first wife in the early 1990s. They had three children together of which two survive; his son lives in North America while his daughter is married and lives with her husband in Kiribati. He is estranged from both.
[36] In about 2003 or 2004, following the breakdown of his first marriage, the appellant returned to live in Teaoraereke on South Tarawa. He met his second wife with whom he has four children. He supported his family through paid employment and then, using his own powered boat, by engaging in small scale commercial fishing. He built a family home on a portion of family land owned by him under customary land tenure arrangements.
[37] The appellant has been living in New Zealand since October 2008. His wife and four children are living in New Zealand as either citizens or residents. They will not join him in Kiribati. The appellant is liable to be deported as a result of his having been convicted in New Zealand of serious criminal offences. The victim is a citizen of Kiribati whose father lives nearby to the village where the appellant’s family land is located.
[38] The house the appellant built is no longer available to him, nor is his boat. The former was demolished and the latter sold to finance the family’s migration to New Zealand, his wife having obtained residence in New Zealand under the Pacific Access Quota scheme.
4 At [22] – [26].
5 At [30].
[39] The appellant’s land is located on the ocean side of South Tarawa atoll and, as at the time he emigrated to New Zealand, was without any sea wall and was already being impacted by erosion.
Application for refugee status
[22] In accordance with the test formulated in its decision in DS (Iran),6 the Tribunal considered whether, objectively, on the facts as found, there was a real chance of AW being persecuted and, if so, whether there was a Refugee Convention reason for that persecution.
[23]The Tribunal summarised relevant information concerning:
(a)Policing in Kiribati – in relation to which it recorded that Kiribati has a functioning Police force.7
(b)Socio-economic conditions in Kiribati – in relation to which it noted:8
(i)the population pressures in Kiribati which are expected to increase in South Tarawa;
the reliance of the Kiribati economy on income from fisheries;
(iii)the maintenance of a Kiribati sovereign wealth fund; and
(iv)the levels of state and customary practices of social protection, and the breaking down of the latter.
(c)The Pacific hazard-scape, which is characterised by a variety of hazard types and, in the case of climate-related hazards, an increasing frequency and intensity. The Tribunal noted that AW’s village was assessed as being of “medium” risk in terms of sea-level rise.9
6 DS (Iran) [2016] NZIPT 800788 at [213].
7 AW (Kiribati)¸ above n 1, at [50].
8 At [51] – [61].
9 At [62] – [69].
(d)Climate-change impacts and adaptation measures in Kiribati, in relation to which it recorded, among other things, that:10
There is no question that Kiribati is impacted by the adverse effects of climate-change, which exacerbates pre-existing development- related risks to the population’s well-being. …
This does not mean, however, that no meaningful action to effectively address climate-change-related risks has occurred. Country information establishes that the successive governments of Kiribati are acutely aware of the risks and are taking a range of short, medium and long-term actions to ameliorate risks to the population through interventions at the legislative, policy and operational levels.
[24] In a section headed “Application to the facts”, the Tribunal recorded constraints on AW’s ability to obtain and adduce relevant evidence as follows;
[86] Due to the appellant’s incarceration, he has faced constraints on his ability to obtain up-to-date information on key matters, such as the physical condition of his land, or the willingness and ability of members of his extended family to provide him with support in Kiribati. These particular difficulties faced by the appellant are compounded by structural communication constraints. As noted in the 2022 UN Country Assessment at p31:
Kiribati remains one of the least connected countries in the world, where much of the population either has no access to Information and Communication Technologies (ICT) or, even if it lived within range of the existing, often unreliable networks, is unable to afford the service. Until recently, about 40% of the population relied entirely on public access (radio, satellite-based telecentres). In 2017, Internet users only represented 15% of the population. Rapid growth has situated household Internet access at 48% in 2018.
[87] While mindful of the appellant’s overarching statutory responsibility to establish his claim, the Tribunal has, to the extent possible, made allowance for his inability to make relevant inquiries.
Tribunal findings in relation to AW’s situation under Refugee Convention
[25] The Tribunal noted that AW had not been made aware of any specific threat to him from the family of the victim and found that there was no basis to conclude that, should AW make any concerns known to the Police in Kiribati, protection would be denied to him or would be ineffective such that the risk to AW would be at the real chance level.11 Accordingly, the Tribunal did not accept AW’s first ground of appeal.
10 At [70] – [85], in particular [70] and [78]
11 At [88].
[26]AW does not challenge that aspect of the Tribunal’s decision.
[27] As to AW’s risk of impoverishment, the Tribunal noted that the Refugee Convention was not designed to deal with every ill that plagued the world but accepted that breaches of rights under the International Covenant on Economic, Social and Cultural Rights (ICESCR):12
… are capable of founding valid claims for refugee status, with assessment driven by consideration as to whether the claimant would be denied the core minimum content of the relevant socio-economic rights engaged by the claim on a discriminatory basis.
[28] The Tribunal did not accept, however, the submissions of AW’s counsel that AW would be unlawfully discriminated against and deprived by law of the ability to work because of a compulsory retirement age of 55 in Kiribati. Nor did it accept that AW would be without any means to maintain even a subsistence lifestyle. The Tribunal accepted that AW had been absent from Kiribati for many years and was estranged from his extended family. It also accepted AW’s evidence that he did not believe that such support would not be forthcoming. However, it stated that this had not been established and stated:13
While it may be that members of the appellant’s extended family will not look favourably on him, and their ability to provide support may well itself be limited, there is no evidence before the Tribunal to establish that he will not [be] able to count on it, to the extent that he needs it, if the alternative would be to leave him in a state of destitution.
[29] The Tribunal said it could not be assumed that AW would be shut out of traditional social protection mechanisms. It also did not accept that the imposition of a compulsory retirement age of 55 was discriminatory and noted that it was not the case that AW would be prevented from working at all given that formal employment comprised only 20 per cent of employment in Kiribati.14 The Tribunal stated:15
The compulsory age of retirement is not a special regime but rather a generally applicable and non-discriminatory socioeconomic policy of a type which was never intended to be regarded as cruel, inhuman or degrading treatment,
12 At [89].
13 At [92].
14 At [92] – [95]
15 At [96].
whether this be as an element of ‘being persecuted’ or as a stand-alone aspect under the Tribunal’s protected person jurisdiction.
[30] With respect to the risk posed by climate change, the Tribunal noted that no special rules applied to cases of this kind, that the ordinary standard of risk applied, that claimants did not need “to establish any ‘super-heated’ risk over and above that of the general population” and that it was irrelevant that a claimant’s position might be shared by many other people. It stated:16
What is critical is whether the predicament is one to which the Refugee Convention can, on the application of ordinary principles, respond to.
[31] The Tribunal accepted that AW would, in Kiribati, be exposed to the adverse effects of climate change. It also accepted AW’s evidence that, at the time he left Kiribati in 2008, his land was already suffering from erosion, and he genuinely feared that he would be unable to use it to sustain himself. However, while the Tribunal accepted that AW’s land would not have been immune from erosion in the intervening years, there was no direct evidence to establish that the land would have been eroded to the point of no utility. Accordingly, the Tribunal held there was no sufficient evidential basis for it to infer that the land had passed the point of habitability or was nearing that threshold.17
[32]The Tribunal summarised the risks of climate change to AW as follows:
[128] While giving full weight to the expected upward trajectory of adverse climate change impacts on Kiribati in the coming years, there is no sufficiently compelling evidence before the Tribunal to establish that existing and future climate change adaptation and disaster risk reduction measures by the successive governments in Kiribati, acting in cooperation with the international community, international organisations and civil society and alongside ongoing sustainable development projects and programming, will not reduce the risk that the appellant’s international human rights will be breached (whether including a right to life with dignity or not), to below the real chance standard.
[33] The Tribunal found that AW’s predicament did not amount to “being persecuted” as set out in DS (Iran) and held that, for these reasons, AW did not have a well-founded fear of being persecuted in Kiribati. In the light of that finding, the
16 At [99].
17 At [117].
Tribunal concluded that it was not necessary to address the issue of whether there was a reason under the Refugee Convention for any such persecution.18
Tribunal’s findings in relation to Convention Against Torture
[34] The Tribunal held that, for the same reasons given in relation to the claim under the Refugee Convention, AW was not at risk of being subjected to severe mental or physical pain or suffering for any of the prescribed purposes with any of the prescribed involvement of a public official. Accordingly, AW was not recognised as a protected person under the Convention Against Torture.
[35]AW does not challenge that aspect of the Tribunal’s decision.
Tribunal’s findings in relation to ICCPR
[36] The Tribunal found, in the light of the information as a whole, that it had not been established that Kiribati had failed, or would fail, to take steps to protect the lives of its citizens from known environmental hazards such that AW would be in danger of being arbitrarily deprived of his life.19 The Tribunal further found that there was no evidence before it to establish that AW belonged to a section of the Kiribati population in respect of which the Government of Kiribati had implemented policy measures or failed to discharge positive obligations in response to past natural disasters amounting to cruel treatment.20 Accordingly, it held that AW was not in danger of being arbitrarily deprived of life or subjected to cruel treatment and was not a recognised protected person in New Zealand under the ICCPR.21
Submissions of counsel
[37] Mr Allan submits that it is in the interests of justice to grant leave to appeal because it is arguable that the Tribunal made three errors of law (as set out at [5] and
[6] above) that are of general and public importance. More generally, Mr Allan submits that there is a lack of legal certainty about whether refugee claims based on
18 At [129] – [131].
19 At [139].
20 At [140].
21 At [144].
socio-economic deprivation and climate change should more properly be considered under the separate humanitarian jurisdiction of the IPT. Mr Allan also refers to the High Court’s decision in Teitiota v Chief Executive of the Ministry of Business Innovation and Employment.22 He notes that, when declining leave to appeal in that decision, Priestly J had observed that, given the complex inter-relationship between natural disasters, environmental degradation and human vulnerability, sometimes a tenable pathway to international protection under the Refugee Convention can result. Mr Allan notes that the Court of Appeal did not comment on that aspect of Priestly J’s decision when it also declined leave to appeal.23 He submits that there should be clarity on the circumstances where such a pathway may arise.
[38] It appears that the specific grounds of appeal may have been advanced for the purpose of seeking appellate level consideration of those broader questions.
[39] In response, counsel for the Crown, Ms Perera and Ms Ewing, submit that the law regarding the relevance of climate change and socio-economic breaches to the determination of refugee status has been settled by the decisions of the High Court and Court of Appeal in Teitiota and by the Tribunal’s decision in BG (Fiji) and had been correctly applied by the Tribunal in this case. Crown counsel submit that the Tribunal correctly understood that denial of socio-economic rights can found valid claims for refugee status but, on the facts of this case, had correctly held that AW could not establish that a denial of his socio-economic rights would support a finding that AW had been “persecuted”. It had also found that AW could not establish that the risks posed by climate change to AW amounted to persecution.
Analysis
[40] AW’s application for leave to appeal fails to take into account the clear guidance provided by the Court of Appeal in Teitiota on the assessment of applications for refugee status based on the impacts of climate change.
22 Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125, [2014] NZAR 162 at [27].
23 Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2014] NZCA 173, [2014] NZAR 688.
[41] Teitiota also concerned an applicant from Kiribati seeking refugee status based on the impacts of climate change. In its decision, the Court of Appeal stated:24
The short point is that the effects of climate change on Mr Teitiota, and indeed on the population of Kiribati generally, do not bring him within the [Refugee] Convention. That is the position even if the most sympathetic, ambulatory approach permissible to interpreting the Convention is taken. The Convention is quite simply not the solution to Kiribati’s problem.
[42]The Court of Appeal went on to find that:
(a)In Mr Teitiota’s case, there was no suggestion of persecution, let alone on any of the five grounds set out in art 1A(2) of the Refugee Convention;25 and
(b)There were two confirmations that climate change was generally having the same effect on all the people of Kiribati.26
[43] In summary, the Court of Appeal found that, even on a generous approach to the interpretation of the Refugee Convention, the effects of climate change that apply to the population of Kiribati generally do not bring an applicant within the Refugee Convention.
[44] Given the encompassing scope of that finding, it is clear that there would have to have been some significant change in circumstances in Kiribati since the Court of Appeal’s decision, or something significant and particular to AW’s circumstances and relevant to the grounds in art 1A(2) of the Refugee Convention, before AW could have any realistic prospect of succeeding with a claim to refugee status based on the effects of climate change in Kiribati. As I said to Mr Allan at the hearing, there is nothing in the case advanced on behalf of AW that brings him anywhere close to establishing a valid claim to refugee status, notwithstanding the socio-economic disadvantages that AW may face if returned to Kiribati.
24 At [21].
25 At [22].
26 At [23].
[45] Taken at its strongest, AW’s evidence about his own circumstances is that he may be unable to obtain paid employment because of the mandatory retirement age in Kiribati, that the land on which he used to live on South Tarawa may have eroded and may not be habitable, and that he may not be able to rely on family members or wider community support. Even if all those matters were proven, that would not establish that AW is a refugee.
[46] I doubt aspects of AW’s evidence. In particular, I doubt that the mandatory retirement age extends beyond the public sector, in which it appears AW has never worked. However, even assuming that all of the contentions advanced by or on behalf of AW were factually correct, they would not establish that AW is at risk of suffering persecution based on race, religion, nationality, membership of a particular social group or political opinion – that is, on any of the five grounds in art 1A of the Refugee Convention on which a claim for refugee status must be based.
[47] As described above, the Tribunal assessed AW’s appeal against the refusal of refugee status principally on the basis of whether AW faced a risk of “persecution” in a factual sense. Having found that he did not face such a risk, the Tribunal found it unnecessary to consider whether there was a reason under the Refugee Convention for any such persecution.
[48] Given the Court of Appeal’s decision in Teitiota¸ a more direct route to assessing AW’s claim for refugee status would have been to consider whether there is anything in AW’s circumstances that takes him outside the scope of the Court of Appeal’s finding that the effects of climate change on the population of Kiribati do not of themselves bring an applicant for refugee status within the scope of the Refugee Convention.
[49] Plainly there is not. In most respects, AW’s situation is no different from that of any other person in Kiribati of a similar age whose land has been affected by sea- level rise and erosion. The one distinguishing consideration in AW’s case is the possible social opprobrium and isolation he may face because of his offending in New Zealand. That does not amount to persecution, either generally or in a Refugee Convention sense.
[50] For these reasons, the Tribunal’s findings of fact that were adverse to AW’s interests could have no consequences for the outcome of AW’s right to refugee status. Those findings, which related principally to whether AW’s land remains habitable and whether AW will be able to earn a living because of the mandatory retirement age in Kiribati, are not relevant to whether AW faces persecution in a sense contemplated by the Refugee Convention. Accordingly, whether or not the Tribunal had an obligation to give notice of an intention to make such adverse findings of fact could have no bearing on the result of AW’s appeal.
[51] In addition, the Tribunal was under no natural justice obligation to give notice of an intention to make such adverse findings of fact before making its decision. It is clear from s 226 of the Immigration Act that AW bears the responsibility of establishing his claim and of ensuring that all evidence he wished to have considered was provided to the Tribunal. That statutory responsibility subsists, whatever AW’s circumstances. The Tribunal recognised the constraints on AW and took those into consideration. That does not alter the fact, however, that it is for AW to present the evidence and for the Tribunal to make its decision on the basis of the evidence presented.
[52] AW’s situation is no different from that of the appellant in BV v Immigration and Protection Tribunal whose similar claim for a breach of natural justice was rejected by the Court of Appeal.27 AW was represented by counsel. He based his case on alleged socio-economic deprivation and the effects of climate change. He knew that those questions would be a focus of the Tribunal’s consideration, that the Tribunal would be likely to make factual findings on those questions and that those findings could be adverse to his interests. In addition, he was able, through his counsel, to file further submissions and evidence after the hearing. No issue of unfairness arises.
[53] I am satisfied, therefore, that this ground of appeal is not seriously arguable. It does not raise questions of general or public importance. There is no other reason why that question ought to be submitted to the High Court.
27 BV v Immigration and Protection Tribunal [2014] NZCA 594; [2015] NZAR 139 at [17] – [18].
[54] This disposes of the first ground of appeal as that ground was modified at the hearing of the application for leave to appeal. For completeness, I note that the first ground of appeal as set out in Mr Allan’s written submissions is also not seriously arguable. As Crown counsel observed, Mr Allan’s criticisms of the Tribunal’s consideration of AW’s circumstances related principally to the weight the Tribunal gave to the evidence before it. The Tribunal’s application of the law to the facts was orthodox and consistent with its approach in BG (Fiji). There is no arguable error of law.
[55] As to AW’s second and third grounds of appeal, the questions before the Tribunal on AW’s appeal were not whether the Refugee Convention and art 6 of the ICCPR should extend to claims based on socio-economic deprivation and climate change. Rather, the questions where whether AW’s circumstances, as found by the Tribunal, established that if AW was returned to Kiribati he would be:
(a)at risk of persecution on any of the grounds in art 1A of the Refugee Convention; or
(b)in danger of being arbitrarily deprived of life or subjected to cruel treatment.
[56] The Tribunal answered both questions directly and in accordance with the Refugee Convention, the ICCPR and the Immigration Act. In the circumstances of this case, it was unnecessary for the Tribunal to consider the general questions of whether the Refugee Convention and art 6 of the ICCPR should extend to claims based on socio-economic deprivation and climate change.
[57] For these reasons, I am satisfied that the second and third grounds of appeal are not seriously arguable. They too do not raise questions of general or public importance. There is no other reason why these questions ought to be submitted to the High Court.
[58] As to the first of the more general considerations raised by Mr Allan, the Tribunal’s jurisdiction for determining appeals against deportation on humanitarian
grounds are set out in s 207 of the Immigration Act. Whether a particular appellant comes within those grounds will be for the Tribunal to determine based on the facts of that case. It is not appropriate on an appeal for the Court to rule generally that claims for refugee status based on socio-economic deprivation and climate change should be considered under that section rather than under ss 125 and 129.
[59] What ought to have been apparent to AW and his counsel, however, is that, following the Court of Appeal’s decision in Teitiota, the prospects of succeeding with a claim for refugee status based on the effects of climate change on people in Kiribati, or another country similarly affected by climate change, are not strong.
[60] As the Tribunal said in its decision, the Refugee Convention was not designed to deal with every ill that plagues the world. As I said to Mr Allan at the hearing, the Convention was designed to ensure the protection of people who are refugees as that term is described in art 1A of the Convention. Whatever other difficulties people may face and whatever other reasons people may have for not wanting to return to their country of citizenship, the Refugee Convention is not an available avenue where an applicant is palpably not a refugee as described in art 1A of that Convention. It is certainly not an avenue available to AW to avoid deportation.
[61] As to Priestly J’s observation in Teitiota about a tenable pathway from natural disasters, environmental degradation and human vulnerability to protection under the Refugee Convention, Priestly J himself gave examples of how such a pathway might arise when he said, immediately after the sentence highlighted by Mr Allan:28
Environmental issues sometimes lead to armed conflict. There may be ensuing violence towards or direct repression of an entire section of the population. Humanitarian relief can become politicised, particularly in situations where some group inside a disadvantaged country is the target of direct discrimination.
[62] In other words, it might be that, in addition to the environmental issues a person faces, there are other factors which, in combination with those environmental issues, amount to persecution on grounds described in art 1A of the Convention; being race,
28 Teitiota v Chief Executive of the Ministry of Business Innovation and Employment, above n 22, at [27].
religion, nationality, membership of a particular social group or political opinion. However, where, as in AW’s case, there are no such additional Convention-related considerations, it serves little purpose to speculate on how such a pathway might be established.
Result
[63]For all these reasons, I dismiss AW’s application for leave to appeal.
G J van Bohemen J
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