Zaoui Case: Govt Seeks To Overturn Appeal Court Human Rights Ruling
By Selwyn Manning – Scoop Co-Editor
The New Zealand Government announced today that The Crown will seek to overthrow a Court of Appeal decision that insisted Ahmed Zaoui’s human rights must be taken into account when reviewing a security risk certificate issued against him by the SIS.
Attorney General Margaret Wilson said this afternoon it is “important” that the Supreme Court clarify “the test to be applied by the Director of Security when issuing, and the Inspector-General when reviewing, a security risk certificate”.
Wilson said the Court of Appeal issued declarations stating that the “threat to national security” test is a very high one. She said it ruled on the basis of an assumption that if such a certificate was confirmed against Mr Zaoui he would be sent back to face persecution.
She said: “It was never the intention of the Crown to return Mr Zaoui to a place of persecution, regardless of the outcome of the review by the Inspector-General.
“Any decision by the Minister of Immigration would take account of New Zealand’s international obligations, including its obligation not to deport people to places where they face torture.”
Therefore, Wilson said, the test must be clarified by the Supreme Court.
On October 1 the Court of Appeal issued its unanimous decision instructing The Crown that Mr Zaoui's human rights must be taken into account during a review of his security risk certificate. Justices Anderson, Glazebrook and William Young tore through Crown submissions that sought to overturn an earlier High Court decision (made in December 2003) where Justice Hugh Williams ruled that the Inspector General must consider Mr Zaoui’s human rights if justice is to be done.
The Court found that the 'threat to national security' alleged by the Director of Security on the basis of secret intelligence information must be sufficient to outweigh Mr Zaoui's human right to asylum from persecution, and that 'an appreciable alleviation of that danger must be capable of being achieved through his deportation’.
The judgement reordered priorities to be considered during a review. It held that national security considerations must be taken into account as defined in the refugee convention, not as contained in the Immigration Act and the SIS Act, as argued by The Crown. The decision set out a clear framework by which the Inspector General of Intelligence and Security Justice Neazor would follow.
The Court of Appeal also awarded Mr Zaoui $12,000 compensation.
At the time of the ruling, Amnesty International’s New Zealand director Ced Simpson said: “This must be so if individuals are to be protected against unreasonable ideas of what constitutes 'national security',” Mr Simpson said.
“Over the years thousands of New Zealanders have campaigned through Amnesty International for individuals threatened with imprisonment, torture and death because some government or other has found it convenient to assert, rather than prove, that they were some sort of 'threat to national security'. We must do better as a country in the Ahmed Zaoui case.” Mr Simpson said.
Amnesty International had consistently called for a hearing into the allegations against Mr Zaoui that would meet the standards established by the European Court of Human Rights for national security cases involving refugees.
Such a hearing would include a testing of allegations by counsel representing Mr Zaoui even if counsel had to be security-cleared and parts of the hearing held in camera to protect classified information.
The Government had been under fire in Parliament for its handling of the Ahmed Zaoui issue. New Zealand First leader Winston Peters had claimed the Government had failed to ensure a speedy conclusion to the case and castigated the Government over increasing legal, prison, and diplomatic costs that now total over $1million New Zealand dollars.
Certainly the Government’s criticisms that Mr Zaoui’s legal team were taking full advantage of the law and dragging the case out have now become farcical, especially when considering it was The Crown that took the Hugh Williams High Court decision to Court of Appeal, and now seeks to appeal this CoA ruling in the Supreme Court. The Crown also seeks to overthrow via the Supreme Court a Court of Appeal ruling that Television New Zealand and other media ought to have access to interview Mr Zaoui on public interest grounds.
Ahmed Zaoui is a former Algerian MP who fled his home nation after a military coup cancelled democratically held elections in December/January 1991/92. Mr Zaoui and his family fled to Europe and sought protection in Belgium and Switzerland. He, his wife and children were deported to Burkina Faso and later fled to Malaysia. On learning the Algerian authorities were in talks with the Malaysian government about him, fearing for his safety, Mr Zaoui fled again to Thailand, Laos, Vietnam, then made for New Zealand via South Korea.
Mr Zaoui has been imprisoned in New Zealand since his arrival in December 2002. The New Zealand Security Intelligence Service issued a security risk certificate against him in March 2003. The quasi-judicial body, the Refugee Status Appeals Authority (RSAA), investigated his case and background and found him to be a genuine refugee, that the Algerian military regime had issued three death sentences against him, and that the feared terror organisation the GIA, had ordered his execution. The RSAA ruled that Mr Zaoui was justified in fearing for his life and that he ought to be given asylum in New Zealand as a lawful refugee.
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