Zaoui judgement: it's enough

Initial reaction to the Supreme Court's judgement in the Zaoui case has been pessimistic. I'm not so sure. While the Court has delivered a mixed judgement, upholding in part and overturning in part the prior judgement of the Court of Appeal, I think that they have upheld and given enough to ensure that Zaoui cannot be deported.

Pessimism has focused around the Court's ruling that it is not the role of the Inspector-General of Security Intelligence to consider human rights. Instead, they are to determine solely whether the relevant security criteria - identified by the court as s72 of the Immigration Act 1987 and article 33.2 of the Refugee Convention - are upheld. This is a defeat for Zaoui, as it reverses the Court of Appeal's decision that the Bill of Rights must be taken into account. But at the same time, the Supreme Court agree with the Court of Appeal that

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.

This is a long way from the rubber-stamp proposed by the government at the beginning of this process, and provides some small protection for Zaoui's rights (though as Deborah Manning has already pointed out, it is still a one-sided process which violates natural justice by denying Zaoui the right to see and refute the evidence against him).

So why am I optimistic? Simply because the Supreme Court has ruled that article 33.2 of the Refugee Convention - which permits expelling a refugee on the basis of national security or serious criminal conviction - is included in the Inspector-General's security criteria. And on that matter, the Court 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.

Whatever questions you may have about how serious and substantial that harm must be, there should be absolutely no question that what is alleged in the SIS's summary of allegations doesn't even come close. There's no allegation of actual involvement in terrorism, only that he would continue to do what he's always done - peacefully advocate for the restoration of democracy to Algeria - and by doing so damage our international reputation. No matter which way you look at it, that simply doesn't cut it, and on these criteria the Security Risk Certificate would have to be withdrawn.

Also grounds for optimism are the Court's rulings on how the Minister must proceed in their decision as to whether to deport Zaoui if the Security Risk Certificate is upheld. Here the Court is quite clear: the Bill of Rights applies. And the government cannot simply pass the buck or do a Bush and say "well, we won't be torturing him"; they must apply those rights in a substantive sense and consider in full what is likely to happen to Zaoui if he is deported. The upshot of this is that

the Minister, in deciding whether to certify under s 72 of the Immigration Act 1987 that the continued presence of a person constitutes a threat to national security, and members of the Executive Council, in deciding whether to advise the Governor-General to order deportation under s 72, are not to so decide or advise if they are satisfied that there are substantial grounds for believing that, as a result of the deportation, the person would be in danger of being arbitrarily deprived of life or of being subject to torture or to cruel, inhuman or degrading treatment or punishment.

(Emphasis added). Reading into this, it would also bar any deportation where there are substantial grounds for belief that Zaoui would in turn be deported to Algeria.

The Court also rules that the decision must be made in accordance with natural justice, and that the Immigration Act's prohibition on giving reasons for upholding a Security Risk Certificate does not forbid giving reasons for deportation (and that those reasons can be made available under the Official Information Act). In other words, the Minister cannot simply make the decision in their own mind with no comeback; there are significant limits (which may be able to be enforced by a court), and some degree of openness.

The real cause for concern however is the timing. The Inspector-General may not complete his review before the election, which raises the prospect of Zaoui's fate being decided by a New Zealand First Minister of Immigration. Even if it is completed swiftly, if the Security Risk Certificate is upheld, there is a significant danger that the decision as to whether to deport will be made on political grounds in an effort to pander to the redneck vote or court Winston as a coalition partner. If there is a danger of this happening, then I think we need to make it clear to the government that rednecks are not the only people who can impose a political cost.