Tuesday, June 21, 2005

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.


I think that's already been well-covered in the RSAA decision: because he feared deportation to Algeria. Which is precisely the reason he had to leave Burkina Faso. As for France and Belgium, the RSAA has concluded that their convictions were unsafe, and in any case neither suggested that he was any sort of dangerous terrorist (as seen in the sentences they returned).

New Zealand has an obligation to assess those who turn up at our borders and apply for refugee status. Generally those who do so believe themselves to be in immediate danger and cannot wait around in a camp for years. And in Zaoui's case, this belief seems well-justified, which is why the RSAA ultimately granted him refugee status.

Posted by Idiot/Savant : 6/21/2005 03:05:00 PM

I/S - After a quick read of the latest Zaoui opinion, my own view is that the government is likely to be pretty pleased. First, the reading of Article 33.2 of the Refugee Convention went their way. Second, the Court also held that the Inspector General only deals with whether the relevant security criteria are satisfied - this exercise involves no assessment and balancing of Zaoui's human rights. Third, when the question of deportation arises, the decision-makers do have to take into account his human rights under the Bill of Rights, the Convention against Torture and the ICCPR. So bottom line essentially amounts to: we won't deport him if we think that there's a substantial likelihood that this will lead to his death/torture/serious mistreatment.

Two further points of clarification: (1) the Inspector General and the Minister are not going to making the decision based on whatever summary the SIS released to the public. So, other than the Director of Security, the Prime Minister and a few others, no one knows what the government has on Zaoui, if anything.

(2) Under s 72 of the Immigration Act, the Minister's certification that someone is a national security risk is a precondition to the exercise of the power to deport. It is not the same decision. So even if it were the case that Winston Peters were the Immigration Minister, the decision to deport - limited in the way I noted above - falls upon the Governor General acting by Order in Council - i.e. the Governor General acting on the advice and with the consent of the Ministers who are members of the Executive Council.

Posted by John : 6/21/2005 03:22:00 PM

John: I agree, the government has reason to be pleased - but I think so does Zaoui. The bar for the Inspector-General to uphold the SRC is a high one, and if all the SIS have is what they're revealing publicly (or rather, if what they're hiding isn't that much different), then its difficult to imagine it being upheld.

The key problem, as you point out, is that the judgement will be made on the basis of classified information which will not be shared with the public or even open to Zaoui to rebut. This raises serious questions of natural justice (the New Zealand government would not accept a criminal conviction gained on such a basis), and it doesn't exactly engender trust (especially with the keystone cops behaviour we've seen from the SIS so far).

I'm not sure that Cabinet is really any sort of check, especially given the possibility that coalition politics will come into play. And that's really what frightens me the most: that something that should be a judicial decision will be taken by politicians acting so as to maximise their vote. That sort of thing simply should not happen in a civilised country (but if it does, then I'm not going to the fight unarmed)

Posted by Idiot/Savant : 6/21/2005 03:48:00 PM

I/S - further clarification: the last paragraph of the judgment states that the Minister cannot certify Zaoui a security risk, and that the members of the Executive Council cannot advise the GG to order deportation if they thinkZaoui would be killed/tortured etc. I don't think I was clear that the human rights concerns cover both decisions in my earlier post.

And yes, as you say, Zaoui has something to be happy about, since the Supreme Court just confirmed NZ won't deport someone to a place where they will likely be mistreated/killed.

Also, in paragraph 65, there's a mention of procedures under s 72 (the deportation provision). It includes a cryptic mention of "natural justice" applying, although security interests would be relevant. Which is judge-speak for "we will tell you later". Further litigation is a given I think.

I hope you are wrong about the cabinet, but we shall see. I'll know not to have too much faith if any Minister starts complaining about the influence of international law and foreign case-law on the Supreme Court's decision.

Posted by John : 6/21/2005 05:01:00 PM

My understanding is that Malaysia is a functioning democracy and a shining example of how Islam and democracy are not mutually exclusive. If Zaoui was not wanted there then it would be interesting to know why. Since Malaysia is already a democracy then it could not have been because Zaoui was "promoting democracy".

But interesting to note Psycho Milt' comment "People like that aren't welcomed by governments in Moslem countries." Yes, they are all the same those Moslems.

And tze ming, insult people with differing ideas all you want but this constant allegation that everyone else are rednecks is very tiresome.

Posted by Sock Thief : 6/22/2005 09:12:00 AM

Sock thief I'm not so sure that Anwar would agree that Malaysia is a "functioning democracy". As one who was on the peripheries of his trial, I came to the conclusion that "Malaysia" and "democracy" are in fact oxymorons. Nothing I've seen since has convinced me otherwise....

Posted by Anonymous : 6/22/2005 02:27:00 PM

Sock Thief: read the FAQ sometime. Malaysia isn't a signatory to the Refugee Convention, and Zaoui had no formal status there. He was not kicked out; he left following the visit of a high-level Algerian security delegation, because he feared that he would be detained and returned to Algeria. Which seems entirely reasonable under the circumstances.

Really, it does help if you have some basic acquaintance with the facts of the case and the relevant law before mouthing off...

Posted by Idiot/Savant : 6/22/2005 02:44:00 PM

John: the judgement does provide several openings for further appeal. The Minister's requirement to uphold natural justice is an obvious one, but more important is the threat barrier. How serious is serious? What evidence is "objectively reasonable"? If the SRC is upheld, I can envisage a challenge on these grounds, unless the SIS publicly reveals something absolutely damning.

Posted by Idiot/Savant : 6/22/2005 02:51:00 PM

Well the FAQs say merely that Zaoui thought the Malaysian Govt might be interested in him. No evidence is provided. So the question still remains what happened in Malaysia. His family are able to remain there, what status do they have.

If this is yet another conspiracy theory, this time between Malaysia and Algeria, then it joins the conspiracy between the US, France, Belgium and Swizteraland. And the NZ Government of course.

Posted by Anonymous : 6/22/2005 03:10:00 PM

I find it unbelievably ironic that we're taking advice from the French on who might be a terrorist.

Posted by Anonymous : 6/22/2005 03:26:00 PM

I/S - there is provision to appeal the decision of the Inspector General under the Immigration Act. However, it is only on a point of law, and assuming the IG doesn't stuff up, I don't think it's going to mean much for Zaoui.

I think we can expect Zaoui's lawyers to ask for judicial review once this reaches the end-game. The question of natural justice, which you raise, is in my view tied up with the disclosure of the classified information that government has on him. 64,000$ question is whether the court is going to buy the likely government argument of "you gotta trust us" that Zaoui is a risk. That's always been the heart of this case; everything up to now has been just the undercard.

Posted by John : 6/22/2005 04:57:00 PM