Intelligence News: Inspector General's Zaoui Review Hearings Set To Begin
By The Scoop Team
The Inspector General of Intelligence and Security's review of whether the SIS was correct in issuing a security risk certificate against Ahmed Zaoui is scheduled to begin on Monday July 9. This is the first time such a review has been conducted in New Zealand, and is uncharted territory in judicial and executive terms.
On March 20 2003, the then Security Intelligence Service director Richard Woods issued a Security Certificate against Ahmed Zaoui. Thereafter he was imprisoned in isolation first in Paremoremo Maximum Security Prison, and later moved to Auckland remand prison at the Mt Eden Prison complex in Auckland.
Mr Zaoui had been detained in custody since his arrival in New Zealand in December 2002, where he sought asylum and applied to be considered a refugee. The Refugee Status Appeals Authority deemed Mr Zaoui a genuine refugee in 2003.
After a series of High Court proceedings, the Supreme Court sat to consider Mr Zaoui's ongoing detention. On December 9 2004, it decided to instruct that Mr Zaoui be released on bail, under conditions, and that he reside at the Dominican Priory in Auckland until his case concludes.
The Inspector General's task from here is highly complex, a fact that has led to Scoop publishing this summary detailing the hearing, review process, and expected steps that will be taken to conclude this case.
The hearing will be held in Auckland at the Employment Court facility between July 9 and August 10, with a break in the middle.
The Inspector-General of Intelligence and Security, Justice Paul Neazor, will begin hearing evidence from Mr Zaoui. He will hear evidence presented by Mr Zaoui, his witnesses and hear opening submissions from his private counsel. This hearing is known as the first “open hearing” of the security risk to begin on 9 July 2007.
The Inspector-General, private counsel for Mr Zaoui, Special Inspector-General, and Counsel for the SIS Director, have been permitted to observe the hearing and will play a role the extent of which is still to be decided upon by the Inspector-General.
However the hearing is closed to the media.
New Zealand law currently states that security risk certificate review hearings are deemed a ‘private enquiry’. This means that not even observers like Amnesty International are permitted to attend – Amnesty's requests to do so have been denied.
So why is the hearing called an open hearing if it is closed to the media and the public?
Because no classified information can or will be discussed. Only “open” material which has been provided to Mr Zaoui and summaries of the classified information can be discussed.
A “closed” hearing dealing with the classified information will happen at a later date and neither Mr Zaoui nor his private counsel can attend this hearing.
Is this hearing in fact a trial?
No. This is nothing like a normal civil or criminal trial. This is a step in a semi-inquisitorial process that the Inspector-General is running.
The SIS has been presenting its case to the Inspector-General in private since March 2003, for over 4 years.
This is Mr Zaoui’s first opportunity to present his case to the Inspector-General. At this review hearing, Mr Zaoui will begin to respond to the allegations made against him by the Director of the SIS.
Will this hearing conclude the Zaoui case?
No. This is the beginning of the next stage of the review process. The July/August hearing was set down before the Special Advocates could begin their task of viewing, analysing and representing Mr Zaoui on the classified information.
Will there be classified information presented or discussed at this open hearing?
No. There will be a closed hearing at some stage after the “open hearing” in which the Special Advocates will make submissions to the Inspector-General on the classified information. They may also cross-examine witnesses, such as the Director of Security ,on the classified information.
In a move forward from the initial constraints of New Zealand's Immigration Act, the Inspector General Justice Neazor decided special advocates would be appointed to examine classified information relevant to the Zaoui case held by the SIS.
The special advocates are Mr Stuart Grieve QC and Mr Chris Morris Esq.
So what do special advocates do?
A Special Advocate was appointed by the Inspector-General to be Mr Zaoui’s advocate regarding the classified information. The Special Advocate can make submissions to the Inspector-General on two areas:
Whether further classified information should be disclosed to Mr Zaoui (“disclosure”)
The relevance and credibility of the classified information to the security risk certificate.
Can the special advocates discuss the case with Mr Zaoui's counsel?
Once the Special Advocates viewed the classified information at the end of May 2007 they were no longer permitted to communicate with either Mr Zaoui or his private counsel in order to protect the classified information.
What happens once the hearings conclude?
The process has not been finalised. It is likely there will be a second stage of “open hearings” because the Special Advocates process may mean further classified information is provided to Mr Zaoui. Mr Zaoui is likely to have more information to present to the Inspector-General and to deliver closing submissions at a further open hearing.
There will also be a closed hearing where just the classified information is discussed– the date for this cannot yet be set down as the Special Advocates only accessed the classified information at the end of May 2007.
Justice Neazor has indicated an intent for this case to conclude by the end of 2007.
So what is the legal test used to consider such national security issues?
In June 2005, the NZ Supreme Court made the following declaration regarding the test for the threat to national security which must be shown by the Director of Security that Mr Zaoui poses:
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. (emphasis added)
What is the role of the Inspector General?
Under the Immigration Act 1987, the
Inspector General has to determine 3 matters. He must decide
That information is credible, having regard to the source or
sources of the information and its nature, and is relevant
to any security criterion. (c) When a relevant security
criterion is applied to the person in light of that
information, the person in question is properly covered by
that criterion – and thus whether the certificate was
properly made or not.
(b) That information is credible, having regard to the source or sources of the information and its nature, and is relevant to any security criterion. (c) When a relevant security criterion is applied to the person in light of that information, the person in question is properly covered by that criterion –
and thus whether the certificate was properly made or not.
Why doesn't Ahmed Zaoui leave New Zealand? Can he join his family and emigrate to another country?
No. He does not have a passport. The New Zealand security risk certificate issued against him also means no country will permit him to live there.
In December Ahmed Zaoui will have been in New Zealand for five years, spending two and a half years in prison, the first 10 months in solitary confinement.
During these five years he has not claimed any living expenses or medical costs from the New Zealand welfare system. Instead Mr Zaoui’s costs of living have been covered by donations by New Zealanders, the generosity of the Catholic Brothers he lives with and the modest amounts his family can send him.
Last year the Algerian government offered amnesty to many of its former political opponents. Some exiled Algerians returned under strict conditions, including agreeing that they would not be politically active, and that they would not call for investigations into human rights abuses. The Algerian amnesty has been condemned by human rights groups like Amnesty International and Human Rights Watch
The Algerian Government has been unable to guarantee Mr Zaoui’s safety, should he return.
Despite repeated requests, the New Zealand Minister of Immigration, David Cunliffe, has refused to allow Mr Zaoui’s wife and four children to join him in New Zealand. This is despite the fact that they are refugees needing protection in their own right. This is also despite the fact that the United Nations High Commissioner has requested the New Zealand government on a number of occasions to permit the family to come to New Zealand.
Summary of the Security Certificate review process The process will be:
1. Inspector-General of Intelligence and Security, Paul Neazor, will review the decision by the Director of Security to issue a Security Certificate against Ahmed Zaoui on 20 March 2003. Starting 9 July 2007, at an “open hearing”, he will begin to hear evidence presented by Mr Zaoui.
2. A second stage “open hearing” is likely to conclude hearing evidence presented by Mr Zaoui.
3. At a later closed hearing (date unknown at this time), the Special Advocates may present evidence to the Inspector-General on Mr Zaoui’s behalf, responding to whatever classified information the SIS has put forward.
4. Then, if the Inspector-General does not uphold the Security Certificate against Mr Zaoui, his refugee status means he is free to live in New Zealand.
5. However, if the Inspector-General upholds the Security Certificate against Mr Zaoui, the Minister of Immigration, David Cunliffe, has three working days to decide whether to refer the case to Cabinet.
6. If the Minister does so, Cabinet reviews the case to issue a decision about deportation. Mr Zaoui would have natural justice rights before Cabinet and potentially could present evidence to them about this and human rights.
In closing: If Mr Zaoui is deported at the end of this hearing, the Security Certificate will be an international black mark against him and consequently he will be unlikely to be able to live in any country but Algeria – the one government which has been actively seeking him for over a decade.
For more on this case, see