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State Of It: Supreme Court Zaoui Decision Due

State Of It: Supreme Court To Deliver Decision On Ahmed Zaoui 10am Tuesday

By Selwyn Manning, Scoop Co-Editor.

A Supreme Court decision on the latest challenge by the Attorney General against a Court Of Appeal ruling, that assured Ahmed Zaoui's human rights would be considered during a review of a security risk certificate, will be delivered at 10am Tuesday.

Scoop Image: Algerian lecturer, elected MP, and refugee, Ahmed Zaoui.

For FULL COVERAGE of this issue, see… : Scoop Feature: Immigration Issues And The Ahmed Zaoui Case…


It is accepted by most reasonably minded people that a refugee who has had a security risk certificate upheld ought to have his or her human rights evaluated thoroughly and fairly. Central to this premise is a consideration as to what will happen to the individual on repatriation.

In Ahmed Zaoui's case, the Supreme Court has considered at what stage Mr Zaoui's human rights ought to be considered, and by whom.

The Crown's argument placed before the Supreme Court sought to overturn a Court of Appeal ruling that ensured Ahmed Zaoui's human rights would be considered by the Inspector General of Intelligence and Security.

The Court Of Appeal ruled that protection against torture, execution, and/or other abuses that may result from deportation ought to be considered by the Inspector General at the time of review. This review basically would evaluate whether it was proper that a security risk certificate had been correctly issued by the SIS.

The Crown argued that in this case, Mr Zaoui's human rights ought to be considered only should the Inspector General uphold the security risk certificate, and then only by the Minister of Immigration.

Through his lawyers, Mr Zaoui argued that torture and/or extrajudicial execution is a likely consequence of a New Zealand government order to deport Mr Zaoui to Algeria, and that the Inspector General is the best person to evaluate this aspect rather than a Minister of Immigration.

Clearly the rights at issue are very important ones, both under domestic and international law.

The protection of refugees from refoulement is the paramount principle of the Refugee Convention.

The prohibitions on torture and refoulement, to face torture or death have the status of what in legal terms is referred to as peremptory norms. These are obligations owed by New Zealand to the international community under two major human rights Covenants and are conferred, it has been argued, by the Bill of Rights.

Submissions before the Supreme Court considered two main questions, firstly the above mentioned: Who should consider all of Mr Zaoui’s human rights? And secondly: How does New Zealand define national security?

Further questions were asked of the Supreme Court:

  • What kind and level of endangerment of national security interests is meant by the expression “danger to the security of New Zealand, in terms of Article 33.2” of the Refugee Convention?

  • Are the potential consequences for Ahmed Zaoui, if the Minister of Immigration decides to deport Mr Zaoui, and if the Court orders that his human rights ought to be considered by the Inspector General, then on what basis would this be considered?
  • Mr Zaoui's lawyers argued that the test of endangerment of national security interests requires “very serious and substantial danger” to the security of New Zealand, or alternatively “serious and substantial danger”.

    Mr Zaoui's team challenged the Attorney General on a premise that of the two potential decision-makers – the Inspector- General and the Minister of Immigration - there is "simply no contest" as to who is the more superior when one considers an evaluative process.

    Reasons given included:

  • The Inspector-General has the experience and qualifications of a retired High Court Judge - the Minister does not.

  • The Inspector-General is obliged to conduct a hearing and receive specified evidence - the Minister is not.

  • The Inspector-General is obliged to observe natural justice and to give a reasoned decision – the Minister is not.

  • The importance of the Inspector-General’s adjudicative role in the overall context of the law is expressly recognized.

  • The Inspector-General has full access to all information, including the classified information and hearing from Mr Zaoui and the witnesses – the Minister does not. The former Minister only had an oral briefing.

  • As the Inspector-General is to act like a semi-judicial figure it is better for him rather than a politician to consider the fundamental human rights of a refugee.
  • It could also be argued (particularly considering Labour's recent dive in the polls and New Zealand First's rise) that in a highly charged political arena, it is likely potential coalition partners could threaten to erode further an incumbent party's political poll position should it not take an overly nationalistic over inter-nationalistic position on a case like Ahmed Zaoui's.

    Indeed, post General Election day, a minor coalition partner with an aggressive and totalitarian immigration policy could find itself holding the balance of power. It may on entering a coalition, hold the Immigration Ministerial warrant and exhort its own policy interpretation over procedural consideration or departmental advice on such a deportation and thus render an outcome out of step and out of keeping with the vast majority of New Zealanders.

    Additionally, it follows that even if such a party did not hold the immigration ministerial warrant it would likely engineer a political environment by waving the stability flag and command undue influence beneath that umbrella of Cabinet collective responsibility. The danger, the result, would be the erosion of a more centrist immigration minister's value judgments and decisions. This too, even considering the latest poll positioning, would prove to be out of step with the majority of New Zealanders.

    Placing the political arena aside, what is wrong with having a Minister of Immigration considering an individual's human rights before he/she opens the gate and shoves them out into the wilderness?

    Well, in contrast to the Inspector General, a Minister of Immigration would have three working days within which to make a 'final decision'.

    The Immigration Minister would not have had access to the classified security information or the evidence and submissions provided by Mr Zaoui.

    The Minister would have to address the refoulement/torture issues after the fact in the face of a confirmed certificate, and, would not be bound to receive further evidence and representations.

    Reintroducing the political aspect, there may still remain one last exit clause from this long-lingering case of disinformation and legal athleticism.

    The Labour-led government could withdraw its support for the security risk certificate.

    As the Listener's Gordon Campbell rightly wrote in February: "In an interview conducted before the Supreme Court decision of February 3 (which decided whether the Crown will be allowed to appeal its last setback), I asked Swain (Minister of Immigration) whether he felt the director's use of the wrong security definition was sufficient reason to withdraw the certificate. 'If the Court gives a decision that says the wrong thing was used,' Swain replied, 'then we have to give consideration about the future. No question about that.'."

    Gordon Campbell continued: "Withdrawal may become an increasingly attractive option. If one takes the initial SIS summary of the classified evidence against Zaoui – set out in the Inspector-General's judgment of September 16, 2003, which summarises the evidence that Swain's predecessor Lianne Dalziel presumably relied upon – and compares it with the summary released by court order in January 2004, a striking difference emerges. Initially, the SIS claimed that it had classified evidence pertaining to Zaoui's movements after he left Switzerland, but this claim has vanished from its January 2004 summary. Apparently, the SIS used a set of classified evidence in 2003 to convince the minister, one part of which it now seems unwilling to place before the Inspector-General."

    For Labour's political strategists, it may be a point well worth exploring - particularly if it favors a coalition with the Progressives, the Greens, and United Future New Zealand over the nightmare of a Labour/New Zealand First axis.

    The Supreme Court will deliver its decision at 10am Tuesday.

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  • Scoop Feature: Immigration Issues And The Ahmed Zaoui Case…
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