The Most Important Victory Yet For Ahmed Zaoui

Ahmed Zaoui has won another battle in the Court of Appeal, making it two-and-a-half out of three. But reading the full judgement, this may very well be the most important one of all.

Briefly put, the court decided that the Inspector-General of Security and Intelligence must take Zaoui's human rights into account when reviewing the security risk certificate. But it goes further than that - a lot further than that. The decision

• affirms wide-ranging rights of judicial review;
• affirms the independence of Inspector-General, and that he must conduct a real review of the evidence upon which the security risk certificate is based, rather than interviewing the Director of the SIS and applying a rubber stamp:

  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.

• The one loss for Zaoui is that the Inspector-General should not consider questions of what will occur if he is deported - those questions are for the Minister.
• Despite this, the Inspector-General must take the Refugee Convention into account, as it has been imported into New Zealand Law through Immigration Act, and must take human rights and the international jurisprudence into account in its interpretation. Regard must be had for the freedoms of association and expression affirmed in the Bill of Rights Act.

It's the latter that makes this case the most important one for Zaoui so far. S. 129X of the Immigration Act 1987 bars the deportation or removal of any refugee "unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention" allow it. Article 33.2 is the relevant one, and it allows deportation or removal of a refugee only where

...there are reasonable grounds for regarding [them] 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.

There's a fair bit of international jurisprudence on what exactly this means, and what it comes down to is that there must be (to quote Justice Glazebrook)

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... 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.

Furthermore,

It is also important to remember that the term used is "security". Concerns about New Zealand’s reputation can be taken into account only if they impinge to such a serious extent on national security that they could fairly be said to constitute a danger to national security. In this regard it must be stressed that the granting of refugee status cannot be seen as an unfriendly act, either on the part of the State where there is a risk of persecution or by any other State

Given that the core of the SIS's "case" against Zaoui is that allowing him to stay may offend other nations and undermine our international reputation, the above effectively constrains the Inspector-General to revoke the Security Risk Certificate. The Court of Appeal may just have written Zaoui's release papers.

ENDS

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