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Supreme Court Delivers Judgment On AG v Zaoui

Attorney-General V Ahmed Zaoui, Inspector-General Of Intelligence And Security And Human Rights Commissioner As Intervener.


This summary is provided to assist in the understanding of the court’s judgment. It does not comprise part of the reasons for that judgment.

The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at Judicial Decisions of Public Interest www.courts.govt.nz /judgments.

The Supreme Court today in a unanimous opinion made two rulings about the review of the security certificate issued by the Director of Security in respect of Mr Ahmed Zaoui and related matters.

It first declared that those applying article 33.2 of the Convention relating to the Status of Refugees 1951 under Part 4A of the Immigration Act 1987 are to apply it in its own terms.

In particular, to come within article 33.2, the person in question must be thought on reasonable grounds to pose a serious threat to the security of New Zealand; the threat must be based on objectively reasonable grounds and the threatened harm must be substantial. (Paras [19]-[52]; for article 33.2 see para [2]).

Secondly, it declared that in carrying out his function under Part 4A of the Immigration Act the Inspector-General of Intelligence and Security is concerned only to determine whether the relevant security criteria – here s 72 of the Act and article 33.2 of the Convention – are satisfied.

He is not to determine whether Mr Zaoui is subject to a threat which would or might prevent his removal from New Zealand. (Paras [53]-[73]; for s 72 see para 5.)

The Court also expressed its view on the ways in which the Minister of Immigration and Ministers as members of the Executive Council advising the Governor-General were to act in exercise of powers of deportation.

They are not to take steps towards deportation if they are satisfied that there are substantial grounds for believing that the person in question would be in danger of being arbitrarily deprived of life or of being subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The Court discussed aspects of the procedure to be followed in the exercise of that power. (Paras [75]-[93].)

To the extent that the declarations made by the Supreme Court differ from those made by the Court of Appeal both the appeal by the Attorney-General and the cross appeal by Mr Zaoui succeed.

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