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Ahmed Zaoui Case – Court of Appeal 11 May 2004 (1)

Ahmed Zaoui Case – Court of Appeal May 2004

By Kevin List

Zaoui Lawyers Release Summary Of Accusations

The saga of the detained refugee Ahmed Zaoui reached the Court of Appeal in Wellington on May 11 2004. Day one began with Solicitor-General, Terence Arnold appearing on behalf of the Attorney-General (Margaret Wilson) for Richard Woods the Director of Security. The Solicitor-General is presumably somewhat au fait with Zaoui’s legal predicament through having studied the legislation and arriving at the conclusion that Zaoui must remain in prison throughout the entire legal proceedings. [ See also… The PM Is Not - Not Bullying, Not Sacking & Not Freeing]

The Solicitor-General spoke to his submission, refuting an earlier High Court ruling in December 2003, that instructed the then Inspector-General, to consider Zaoui’s human rights when reviewing the Security Risk Certificate made against Zaoui.

The Solicitor-General indeed questioned the very nature of any judicial review prior to the Inspector-General’s final review of the risk certificate. The thrust of this second point seemed aimed at obliterating Justice Williams December ruling in its entirety (I.E. the decision under appeal which found in the Zaoui legal team’s favour).

Justice Williams decision was obviously a judicial review of the risk certificate process, prior to the Inspector-General’s final decision regarding the risk certificate, Mr Arnold said.

If the Court of Appeal, concurred with the Crown’s assertion that there should only be a judicial review on a point of law, post risk-certificate-review, then logically all of Justice William's decision was flawed as it in fact should not have even taken place.

The Minister of Immigration’s Role in Proceedings?

Immigration Ministers Before & After Guinea-pig-gate
Hon. Lianne Dalziel and Hon. Paul Swain
(Note: Dalziel lost her job for something completely unrelated to Zaoui.)

According to the Solicitor-General the Minister of Immigration was responsible for any human rights considerations. That said, which particular Minister of Immigration would consider Zaoui’s rights was not immediately clear. Both before and after lunch yesterday the Solicitor–General repeatedly asserted that "she" (the Minister) would consider Mr Zaoui’s human rights, should the security risk certificate be confirmed by the Inspector-General. However the current Minister is Paul Swain – a man – a "he"?

The Deputy Solicitor-General clarified this point for Scoop during a recess. Swain should (according to the Crown’s argument) be the final and only arbiter of any human rights dimensions relevant to the case. In this respect, and assuming the new Inspector-General confirms the risk certificate, the Minister would have three days to decide whether international human rights conventions allowed Zaoui to stay in New Zealand.

The advantage (for the Crown’s case) in leaving the human rights dimension to the Minister resides in limiting the review of the risk certificate to solely security considerations. Presumably, the Director, in making the risk certificate, according to this argument had only security concerns in mind.

Therefore, according to the Solicitor-General the Inspector-General should only need to define whether the security concerns were credible and relevant. This would then negate any chance Zaoui’s lawyers had of raising human rights considerations with the Inspector-General. The Inspector-General would not need to consider any risk to Zaoui of indirect refoulement (being returned to Algeria indirectly through Vietnam-Zaoui’s last port of call prior to landing in New Zealand).

Article 33.2 of the UN Refugee Convention

The current Solicitor-General’s desire to spare ex-Solictor-General Paul Neazor the inconvenience of swotting up on refugee/human rights law ran into one hurdle, however.

In making the risk certificate the Director determined that (Mr Zaoui’s) continued presence in New Zealand constituted a threat to national security in terms of section 72 of the Immigration Act 1987, and, “there are reasonable grounds for regarding him as a danger to the security of New Zealand in terms of article 33.2 of the 1951 United Nations Convention relating to the status of refugees.”

Justice Glazebrook wished to know, in relation to the Director including the wording relating to 33.2 whether the bench should ‘just ignore the reference to Article 33.2’.

Justice Glazebrook also quizzed the Solicitor-General concerning what would happen to Mr Zaoui should he be indirectly refouled through Vietnam. The Solicitor-General considered that New Zealand’s Director of Security “Didn’t have information about where an individual would be sent to”.

The recently maligned [See also… PM Criticises RSAA Decision She Hasn’t Read] Refugee Status Appeals Authority decision was also thrown into the mix. The Solicitor-General stated that the "Security Intelligence Service had not participated in the appeal process (RSAA) at all", during questioning. Whilst it is presumed the Solicitor-General was inferring no classified information had been provided to the RSAA, the baldness of the statement was apt to further cloud already murky legal waters.

The Director of Security’s Role in the Proceedings

Inspector General Laurie
GreigDirector of SIS Richard
Former Inspector General Laurie Greig & Director of SIS Richard Woods

Also confusing matters was just who the Solicitor-General was acting for.

In the morning session it had been the Attorney-General on behalf of the Director of Security.

However by mid-afternoon the Director had been relegated to a minor role in the scheme of events. The Crown claimed the “Director has taken a hands off role.” and that it was “the Inspector-General who carried the burden”. It was also asserted that the Attorney-General was appearing/appealing in the public’s interest.

What was clear according to the Solicitor-General was that human rights, “were not relevant to the Security Intelligence Service”.

Also emphasised was that the Minister would not find it difficult to deal with the various international human rights permutations in the three day time period specificied.

The Minister would be receiving reports throughout the process. What was not traversed by the Solicitor-General was the subject of oral briefings by the Director, particularly in relation to Paul Swain. The legislation regarding the risk certificate process is crystal clear that the Minister (Dalziel) when briefed (once in late March 2003) must not release the details of this oral briefing to anyone.

Therefore, how could the current Minister of Immigration (Swain) possibly ever know what vital information was given in the presumably one and only oral briefing?

And how can the current Minister utilise his override function given relevant security criteria provided to Dalziel is not written down anywhere, and presumably now exists only in the Director and former Immigration Minister’s memory?

Coming Up Today - Dr Rodney Harrison QC

Just Prior to the close of Day One – Dr Rodney Harrison QC, stressed the point that the Zaoui defence team had utilised the initial judicial review only after they considered that the then Inspector-General, Laurie Grieg ( dismissed from the case some months later for apparent bias) had denied them (Zaoui’s lawyers) an adequate summary of the evidence.

Harrison argued he was asking the court, on behalf of Ahmed Zaoui, “upholding the rule of law”.

Whether Harrison is proved correct in his contention remains however some time away. What will be revealed on the Day Two (today) will be the rest of Harrison’s arguments as well as the Human Right’s Commission’s submission.

(The case is continuing...)


Worth looking out for some time later this week will be Winston Peter’s making further discrete political capital out of the legal aid bill for the Zaoui case. However it is highly unlikely that Peters will consider it worth comparing and contrasting this figure with the Crown’s legal expenses. And given recent statements made by the Prime Minister, it is unlikely this point will be traversed by Government Ministers this week either.

**** ENDS ****

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