Ahmed Zaoui Case – Court of Appeal 12 May 2004 (2)

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

The Court of Appeal case concerning detained refugee Ahmed Zaoui and who will consider his Human Rights concluded at the Court of Appeal yesterday 12 May 2004.

Much of the argument surrounding the case has concerned legislation drafted nearly five years ago but not tested until Zaoui became New Zealand’s inaugural security risk certificate recipient in March 2003.

Both the Crown and Zaoui’s lawyer’s were in agreement that somebody must be responsible for Zaoui’s human rights. Lead counsel for Zaoui, Rodney Harrison QC, argued it should be both the Inspector-General and the Minister of Immigration (Paul Swain). The Solictor-General, Terence Arnold,considered the Minister was the only person responsible for a security risk recipient's human rights.

Rodney Harrison, Q.C., Arguments

The two main arguments expounded by Harrison as to why the Inspector-General should take a risk certificate recipients human right’s into account were.

1. Leaving all decisions relating to human rights to a Minister risked politicising the process.

2. The Minister would not have either time or access to all the classified information.

Harrison hammered these twin themes for most of day two. He also pointed to both Zaoui’s rights under New Zealand’s Bill of Rights and various international conventions that New Zealand had signed.

Over the next few weeks the Court of Appeal justices (Glazebrook, Young and Anderson) will no doubt be kept busy leafing through international jurisprudence regarding issues relevant to Zaoui’s case.

One of Harrison’s more interesting arguments was this: should Zaoui be deported who would take Zaoui? According to the ICAO code he would be sent back to Vietnam, his last port of call. However given Vietnam’s poor human rights record, where would New Zealand deport Zaoui? As Harrison stated, what country would put there hand up if, “Not even New Zealand which took the Tampa refugees would take him”?

Deborah Manning and the RSAA

Deborah Manning, counsel for Zaoui during the Refugee Status Authority (RSAA) hearing clarified some points regarding some (recently) contentious issues relating to the granting of refugee status to Zaoui.

The bench were interested to know whether someone found guilty of serious political crimes could be denied refugee status. It was pointed out that the crimes Zaoui had been found guilty of were non-political. The crimes he was found guilty of had nothing to do with the political party he is a member of (Front Islamic Salvation - FIS).

It was also considered by Manning worth mentioning that terrorist links to the GIA(Group Islamique Army) were played up in the media not the courtroom in regard to Zaoui’s Belgian covictions (1995).

The Human Rights Commission’s Submission

The Human Rights Commission agreed with Harrison in relation to his submissions regarding the Inspector-General’s role in the risk certificate process. It was also pointed out that New Zealand was committed to creating a framework as a world leader in “Human Rights’.

The Balancing Act

Much of the Court of Appeal case concerned the balancing of an individual’s rights versus those of the state. There was also the role of who would be best placed to balance the information relating to the risk certificate recipient.

The Inspector-General may gain access to classified information that would show the person may be tortured if returned to a prospective country, and presumably then not be able to disclose this information to the Minister. However the Solicitor-General considered the Inspector-General (A former High Court Judge) would not be best placed to look at any human rights issues.

“How is the Inspector- General to reach an assessment about the nature of the risks (to the prospective deportee).” It was then pointed out that, “the Minister can talk to overseas jurisdictions.”

This left some concern that the Inspector-General, in reviewing the security risk certificate, would presumably not be able to talk to overseas jurisdictions. If so how is the Inspector-General to make an informed and balanced assessment of presumably classified overseas intelligence?

The Solicitor-General also argued that the Immigration Amendment Act 1999 - that introduced the process of the security risk certificate - was an advance on previous legislation. By providing a mechanism (through the Inspector-General) to review the classified information, the rights of the ‘accused’ were being protected. The Minister was however, the responsible person in regard to human rights issues, particularly relating to indirect or direct refoulement.

The Time Frame - 8 Days To Deportation

This led to an interesting exchange regarding the time frame of the risk certificate process. Whilst the case involving Zaoui has dragged on interminably, should a recipient of a risk certificate not appeal to the Inspector-General the process would theoretically take eight days. The Minister would have three days to make the decision based on international jurisprudence, likelihood of torture if returned either directly or indirectly to a third country, and any number of other considerations. The bench pondered the possibility of the outcome should the Minister be on holiday?

National Security Concerns and ‘Bona Fide’ Refugees

In regard to the supposed 'balancing act' between national security and the ‘accused’s rights’ the bench were also concerned with the weight given to the fact that a risk certificate recipient may also be a bona fide refugee. Justice Young surmised that ‘the danger to New Zealand would have to be looked at in a serious light should someone be a refugee [and a recipient of a risk certificate]'.

Later the Solicitor-General proposed that should someone be deported: “The Minister could make arrangements which remove the possibility of a person being sent back to torture the threat to (national) security could be much less”, and that, “my understanding about where [the prospective deportee] is sent is that it does need to be a suitable country.” (emphasis added)

The Current Immigration Minister’s Oral SIS Briefing

The former Minister of Immigration, Lianne Dalziel was given one oral briefing regarding the Director of Security, Richard Wood’s concerns relating to Zaoui. It was confirmed by Paul Swain’s office today that the current Minister was visited by the SIS Director and briefed on Zaoui on March 8th this year.

As with the previous oral briefing the Minister was not allowed to take any written notes.

The legislation specifically prohibits the Minister from communicating the contents of this briefing to anyone. This means there are now two recipients of the SIS Director’s oral briefing wandering around Parliament unable to communicate with each other and neither with any notes of what they have been told.

Given that the Minister’s (final) consideration - balancing act - of Zaoui’s human rights versus New Zealand’s national security concerns may yet be up to a year away it can only be hoped the Minister has a vice like memory.

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