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Refugee Appeal No. 1/92 Re SA

Publisher New Zealand: Refugee Status Appeals Authority
Publication Date 30 April 1992
Cite as Refugee Appeal No. 1/92 Re SA, New Zealand: Refugee Status Appeals Authority, 30 April 1992, available at: http://www.refworld.org/docid/3ae6b73d8.html [accessed 18 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

AT AUCKLAND

Before: B.O. Nicholson (Chairman) R.P.G. Haines (Member) J.M. Priestley (Member)

Counsel for the Appellant: Mrs Coral Shaw and Mr D.J. Ryken

Counsel for the NZIS: Mrs Shona Carr

Date of Hearing: 23, 28 January 1992; 1 April 1992

Date of Decision: 30 April 1992

 

DECISION OF THE AUTHORITY DELIVERED BY R.P.G. HAINES

COURSE OF THE HEARING

The hearing of this appeal commenced at Mount Eden Prison on 23 January 1992, the appellant then being in custody under the provisions of Section 128 of the Immigration Act 1987. At the appellant's request, the Authority permitted two observers to attend the hearing, the first being a representative of Amnesty International and the second being a representative of the New Zealand Arab Association. Also present as an observer was Mr H.M. Domzalski of the Canberra Regional Office of the United Nations High Commissioner for Refugees (UNHCR).

The hearing continued at Mount Eden Prison on 28 January 1992. At the conclusion of that hearing the Authority, acting under paragraph 9 of the Terms of Reference of 11 March 1991 requested that the Refugee Status Section of the New Zealand Immigration Service obtain further information as to whether a person in the situation that the appellant claimed to be in is entitled to return and reside in either Morocco, Israel, the Occupied Territories or the Kingdom of Jordan.

The Authority was subsequently supplied with information not only from the Refugee Status Section, but also from the UNHCR. It would be fair to say that the information is of an inconclusive nature and for that reason has been given no weight.

However, to allow the parties a fair opportunity to call evidence and to make submissions on this new information, the Authority reconvened on 1 April 1992. At this hearing the parties were also given an opportunity to call evidence and present submissions in relation to factual and legal material which the Authority's own researches had uncovered. That material is listed in a schedule to a letter dated 27 February 1992 from the Secretariat of the Authority to the solicitors for both parties. In relation to information which has come to hand subsequent to 1 April 1992, the parties have been given an opportunity to file memoranda. In short, the Authority has not taken into account any information or material in respect of which the parties have not had an opportunity to be heard.

INTRODUCTION

The claims of the appellant are that he is a stateless Palestinian born on 15 May 1965 just north of East Jerusalem in what was then Jordanian-occupied Palestine. He has two brothers. The first is older than him by approximately three years and the other is some nine years younger than him.

He says that in 1978 when aged approximately 10 or 13 years he went to live in Morocco with an uncle who, though a Palestinian, is married to a Moroccan woman. Some time later, his two brothers went to Tunisia to live with another relative. The appellant's parents remained in Palestine and contact with both them and his brothers has been lost.

The appellant says that his status in Morocco was that of an illegal alien and to attend school he had to use a false identity card which had been issued to a Moroccan child called Aziz E. Of necessity, he adopted the name of that child. After completing three years schooling (without gaining a diploma) he found employment as a tailor while apparently continuing his studies at the same school at night.

In approximately 1987 the appellant decided to leave Morocco because he felt that as he had entered the country illegally, he had no rights or legal status there. He was also afraid that he would be sent back to Palestine, by which term the Authority understood the appellant to refer to both Israel and the Occupied Territories. Because of his fear of deportation the appellant did not apply for Moroccan citizenship as the making of an application could have led to his apprehension. He did, however, approach a Palestinian organization in Morocco and was given a yellow identity card which identified him as a Palestinian living in Morocco. He obtained from this organization an address in Jerusalem from which he hoped to obtain his birth certificate. The appellant wrote to this address on several occasions but received no reply.

Accordingly, at some time in 1987 the appellant travelled to the Atlantic Port of Kenitra and stowed away on board a ship which arrived at La Rochelle in France approximately six days later. For the next two years or so the appellant lived and worked in different parts of France as an itinerant labourer. He did not apply for refugee status in that country but did learn from other Arabic people whom he met there that the Netherlands had a good human rights record and that it was easy for Palestinians to obtain refugee status in that country. By this time the appellant had discarded the yellow identity card obtained from the Palestinian organization in Morocco.

After a brief sojourn in Belgium to earn funds, the appellant arrived in the Netherlands towards the end of February, beginning of March 1991. Within a week he lodged an application for refugee status. We will address that application in greater detail later in this decision. It is sufficient for present purposes to record that in a decision dated 28 June 1991 the appellant's refugee application was declined on the dual basis that not only was it the opinion of the Netherlands authorities that the appellant was unlikely to be in fact a Palestinian, but also that it was unlikely that the appellant had a well-founded fear of persecution by the Israeli authorities.

Having been required to leave the Netherlands, and not wishing to return to Israel or the Occupied Territories, the appellant made several trips from Holland:

(a) A trip by train to Germany and back.

(b) A voyage which he took as a stowaway on a boat which he hoped would take him to Australia. The vessel, however, did not call at Australia but went to Singapore, Hong Kong, Korea, Japan and returned to Rotterdam via the Suez Canal.

(c)  The appellant stowed away on a second occasion. The boat went first to Hamburg and then to the United Kingdom. He says that upon his arrival there he asked for political asylum but was told by the UK immigration officer that he would be returned immediately to the Netherlands. In this regard, the Authority has been provided with a Notice of Refusal of Leave to Enter dated 27 October 1991 from the Home Office Immigration Service. It records that the refusal to grant leave to enter the United Kingdom was based upon the following ground:

"You have arrived as a stowaway in the MV Providence Bay and have not asked for leave to enter but having examined you I am not satisfied that you intend to leave the United Kingdom in this ship in which you arrived."

Although it is not clear, it is possible that this decision was based on the policy of the United Kingdom Government that refugee applicants should normally seek refuge in the first safe country reached. See, for example, R v Secretary of State, Ex parte Muboyayi [1991 3 WLR 442, 454B; [1991] 4 All ER 72, 83a (CA). It is a controversial policy which has not escaped criticism and the Canadian Government, in recognition of the dangers of such policy has to date elected not to bring into effect those provisions of the Immigration Act 1976-77 which introduced the so-called Safe Third Country policy: Goodwin-Gill, Refugee Determination: What's Next? (1991) REFUGE, Volume 11 No. 2, 5, 7; Adelman, Refugee Determination (1991) REFUGE, Volume 11, No. 2, 8, 10-12.

In the event, the appellant was removed from the United Kingdom to Rotterdam on 27 October 1991.

(d) After only a few days in Rotterdam, on 3 November 1991 the appellant stowed away on the Resolution Bay. The appellant arrived at Adelaide on 28 November 1991, was refused entry to Australia and placed back on board the Resolution Bay when it sailed for New Zealand on 29 November 1991.

Events upon the appellant's arrival in New Zealand will now be addressed in greater detail.

THE APPELLANT'S ARRIVAL IN NEW ZEALAND

The appellant arrived in New Zealand on 8 December 1991. The New Zealand Immigration Service had been previously alerted that the appellant was a stowaway on board the Resolution Bay and had been refused entry to Australia. They had been further advised that the appellant had applied unsuccessfully in the Netherlands for refugee status.

The Acting Regional Manager (Northern) of the New Zealand Immigration Service instructed the Senior Immigration Officer, Compliance that in view of the fact that an application for refugee status had been considered and declined in Holland, there was no obligation on the Immigration Service to consider a further application for refugee status should one be made by the appellant upon his arrival in New Zealand. Upon arrival he was to be refused a permit and in the event of his applying for refugee status, that application was not to be accepted. [See p.150 of the Immigration Service file, being a 2-page file note apparently compiled after the event and dated 19 December 1991.]

It is common ground that upon the arrival of the Resolution Bay at Auckland the appellant was interviewed by an immigration officer and in that interview sought refugee status. As instructed, the application was not accepted. There is no evidence to suggest that the refusal to accept and consider the refugee application, and the reasons therefore, were ever communicated to the appellant and in all likelihood this did not occur. The appellant was placed in police custody pending the ship's departure from New Zealand. He remained in custody until he was released on bail by the District Court at Auckland on 14 February 1992.

On 11 December 1991 while being held in the remand wing at Mount Eden Prison, Auckland the appellant was seen by a prison welfare officer who, concerned at his plight, contacted Messrs Haigh Lyon & Co, a firm of solicitors. To their credit, they agreed to act for the impecunious appellant and took very prompt steps on his behalf.

Following an initial interview the appellant (through his solicitors) filed a formal refugee application with the Immigration Service. In a covering letter dated 12 December 1991 Messrs Haigh Lyon requested reasons for the refusal on 8 December 1991 to consider the application then made for refugee status. That letter was delivered to the Immigration Service by hand. Out of an abundance of caution a copy was also faxed to the Service.

On the following day, by letter dated 13 December 1991, the Regional Manager of the New Zealand Immigration Service advised the appellant's solicitors that the Immigration Service intended to take the position that the appellant was "a flag state responsibility" and it was therefore intended to place the appellant back on the Resolution Bay which at that time was scheduled to depart New Zealand from Dunedin on 14 December 1991. The letter did not respond to the request for reasons.

With commendable alacrity, on 13 December 1991 the appellant made urgent application to the High Court, Auckland for an interim order under Section 8 of the Judicature Amendment Act 1972 preventing his removal from New Zealand. On the same day Barker J. granted the application and made an order restraining the appellant's removal from New Zealand pending the hearing and resolution of the appellant's appeal to the Refugee Status Appeals Authority.

The appellant lodged his appeal with this Authority on 13 December 1991 itself and subsequently, by letter dated 16 December 1991 sought various directions. Those directions were given by the Chairman on 19 December 1991 and were communicated directly both to the appellant's solicitors and to the New Zealand Immigration Service. The directions included a requirement that the appellant be provided with written reasons for the refusal of his refugee application.

It was with some concern that on the first day of the hearing of this appeal at Mount Eden Prison on 23 January 1992, the Authority learnt that no such reasons had been provided and further, that the request for reasons contained in the Haigh Lyon letter of 13 December 1991 had likewise not been responded to.

The Authority has been offered no explanation for this failure.

Quite apart from the fact that the Authority's direction was not complied with, it is appropriate that the Immigration Service be reminded that:

(a) The failure to provide reasons diminishes a right of appeal: T Flexman Ltd v Franklin County Council [1979] 2 NZLR 690, 698 line 25 (Barker J.).

(b) This is implicitly recognized by paragraph 7 of the Authority's Terms of Reference which requires the Authority to consider "each written decision of officers of the Refugee Status Section that is subject to appeal".

(c)  Section 23 of the Official Information Act 1982 imposes a mandatory obligation upon the Immigration Service to provide, upon request, reasons in writing. Section 36 of the Immigration Act 1987 imposes a similar duty. Neither Act has been complied with.

(d) The Official Information Act 1982 has recently been described as a most important piece of legislation, one having constitutional significance: Television New Zealand Ltd v. Ombudsman [1992] 1 NZLR 106, 123 line 20 (Heron J.).

The failure by the New Zealand Immigration Service to provide reasons for its decision cannot, for these reasons, be lightly dismissed and this is a regrettable lapse.

In view of the failure to provide reasons, and in view of the fact that an appeal to the Authority was only secured by the appellant after obtaining an interim order in the High Court, it may be helpful were the Authority to highlight aspects of New Zealand's international obligations under the Refugee Convention and Protocol. The issues which require addressing are:

(a) The appropriate means of dealing with so-called manifestly unfounded cases.

(b) The so-called "country of first asylum".

(c)  Whether an unsuccessful application for refugee status in a third country disqualifies an asylum-seeker from lodging an application for refugee status in New Zealand.

Each issue will be addressed in turn.

MANIFESTLY UNFOUNDED CLAIMS

Under the Refugee Convention, New Zealand has an obligation not to return a refugee to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. This obligation is found in Article 33 of the Convention and is more conveniently referred to as the obligation of non-refoulement. The fundamental and binding nature of Article 33 is emphasized by the fact that it is among the Articles to which Contracting States may not make any reservations - see Article 42. Goodwin-Gill in The Refugee in International Law (1983) 97-98 expresses the opinion that the principle of non-refoulement forms part of general international law and that Article 33 of the 1951 Convention is of a "fundamentally norm-creating character" in the sense in which that phrase was used by the International Court of Justice in the North Sea Continental Shelf cases.

A non-refoulement obligation is also to be found in Article 3 paragraph 1 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. New Zealand signed the Convention on 14 January 1986 and ratified it on 10 December 1989. It became effective for New Zealand from 9 January 1990. The Authority has already had occasion to refer to the Convention in Refugee Appeal No. 14/91 Re JS (5 September 1991) at 7-9 and Refugee Appeal No. 29/91 Re SK (17 February 1992) at 20-21.

As observed in the latter case, to some extent Article 3 paragraph 1 of the Convention Against Torture is based on Article 33 of the Refugee Convention. However, the scope of the two provisions is different. In the Refugee Convention, protection is given to refugees, i.e. to persons who are persecuted in their country of origin for a special reason, whereas Article 3 of the Convention Against Torture applies to any person who, for whatever reason, is in danger of being subjected to torture if handed over to another country: Burgers & Danelius, United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988) at 125.

If, therefore, an asylum-seeker or alternatively, a person seeking the protection of the Convention Against Torture lodges either an application for refugee status or an application for a permit, and if the Immigration authorities decline to even consider the case, individuals are put at risk in relation to their safety, freedom and possibly their life.

The refusal then to even consider an application for refugee status will not only have enormous and potentially drastic consequences to the individual concerned, it will also result in New Zealand being in breach of the Refugee Convention or, as appropriate, the Convention Against Torture. Treaty obligations must be performed in good faith: Article 26 of the 1969 Vienna Convention on the Law of Treaties; Brownlie, Principles of Public International Law (1990) 4th Ed. 616. Article 18 of the Vienna Convention further obliges a State to refrain from acts which would defeat the object and purpose of a treaty. One of the main purposes of a human rights treaty obviously is to assure the protection of human rights and a signatory at a minimum, must not itself deny such rights or allow their violation.

It is therefore a fundamental error to assume that for reasons of policy, convenience or expediency the New Zealand Immigration Service can refuse to accept or consider an application for refugee status.

These conclusions are reinforced by the conclusions endorsed in 1983 by the Executive Committee of the High Commissioner's Programme upon the recommendation of The Sub-Committee of the Whole on International Protection of Refugees. These conclusions are known as Conclusion No. 30 of the Executive Committee of the High Commissioner's Programme The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum. The definition therein of a "clearly abusive" or "manifestly unfounded" application is set out in paragraph (d):

"... those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention Relating to the Status of Refugees nor to any other criteria justifying the grant of asylum."

Both alternatives of the test, i.e. "clearly fraudulent" or "clearly not related to the criteria for granting of refugee status" recognize that a considerable degree of latitude must be allowed before an application can be stigmatized as manifestly unfounded.

Importantly, the Executive Committee recognized that a decision that an application for refugee status is manifestly unfounded or abusive is a decision of substantive character and that there are grave consequences of an erroneous determination for the applicant. The Executive Committee therefore recommended that such decisions be accompanied by appropriate procedural guarantees. Necessity for the following was stressed (each denies a "right" on the part of the authorities to refuse to consider an application for refugee status):

1.         In all cases, the applicant should be given a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status. In the New Zealand context that is to be taken as a reference to the Refugee Status Section of the New Zealand Immigration Service.

2.         The manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status [i.e. the Refugee Status Section at first instance].

3.         An unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory. In the New Zealand context this clearly requires that the individual have a proper opportunity to appeal to the Refugee Status Appeals Authority. This is indeed what the Authority's Terms of Reference prescribe, as was recognized by Barker J. in his judgment delivered on 13 December 1991: SA v Minister of Immigration (High Court Auckland, M2370/91, 13 December 1991, Barker J.) at p.6.

The dangers inherent in the summary dismissal of so-called manifestly unfounded claims have been commented upon by various writers. In the interests of brevity we refer to three only.

Avery in Refugee Status Decision-Making: The Systems of Ten Countries (1983) 19 Stanford Journal of International Law 235, 241 points out that:

"Special procedures adopted in certain states for screening out refugee status claims judged to be "manifestly unfounded" creates a risk of decision-making error. The UNHCR has noted that such screening "requires a substantive evaluation that is similar in nature to that involved in the determination of refugee status generally, and the consequences for a rejected applicant of an erroneous determination are no less serious."

The UNHCR underscored the potential danger of such screening by noting that the Chairman of the Refugee Status determination body in one country observed that some applicants whose requests initially appear to be unfounded, in that they failed to refer to any grounds supporting their fear of persecution, subsequently are determined to be refugees."

Goodwin-Gill in The Determination of Refugee Status: Problems of Access to Procedures and the Standard of Proof (1985) Yearbook of the International Institute of Humanitarian Law 56, 60 makes the following point:

"The body which determines such questions becomes the guardian and administrator of the state's fundamental duties, a task which can only be fulfilled if all potential claims to refugee status are properly adjudicated. Refugees will only be protected against refoulement if identified, and the chances of erroneous denial of access to the procedure are too great to justify any form of filter; the analogy with the problem of so-called manifestly unfounded applications is clear, for no general definition or description will be adequate or sufficient to embrace the complexity and variety of every individual case.

...

If oral hearings are central to the assessment of facts and credibility in refugee and asylum cases, then evidently restrictions on access to procedures will tend to frustrate the objectives of judicial process."

The doubtful efficacy of any form of filter is a matter addressed in Plaut, Refugee Determination in Canada (1985) otherwise known as the Plaut Report.

This report (commissioned by the Canadian Minister of Employment and Immigration) proposed accessibility to the determination process by all claimants and rejected the notion of manifestly unfounded claim.

After noting (at p.95) that application of the manifestly unfounded claim concept had threatened to deny persons who were genuine refugees access to determination systems, the Report continued:

"Professor Atle Grahl-Madsen, the noted scholar in the field, has observed that unstated administrative decisions of collective inadmissibility have endangered the refugee process in many countries. He, like other students of the subject, has pointed out that the danger of the MUC [manifestly unfounded claim] concept and has questioned its effectiveness as a deterrent to abusive claims."

Rabbi Plaut came to the conclusion that the term manifestly unfounded claim, as commonly understood, is a contradiction in itself and should no longer be used. He observed that frequently what is manifest to some is often not so to others. Refugee claims are generally of that kind. They address themselves to experiences and conditions in other countries well-removed from direct observation (p.96):

"The Canadian authority before whom a claim is made may have formed the opinion - usually through reports from others - that the conditions are not as claimed; yet others may disagree, which would render the situation in question not capable of being described as "manifestly" one way or the other.

Furthermore, the Convention refugee who claims that he/she has a well-founded fear of persecution makes a statement that has a subjective and an objective portion. Whether or not he/she has fears relates to subjective perceptions and cannot be said to be manifestly ascertainable. Except for extreme cases such claims may have significant aspects of credibility which would make it inappropriate to brand them as "manifestly unfounded". Only the assertion that the claimant's fear is well-founded yields to objective assessment.

...

I am sure that an examination of determination procedures in all countries which admit the concept "manifestly unfounded" will show cases which were judged MUC in the first instance, but which eventually a higher authority determined to be genuine refugees under the Convention. A hundred claims to refugee status heard by a border official may prove to be unfounded, but the hundred and first may be a genuine refugee in danger of being turned away because he/she appears to be a MUC, like earlier applicants who received a negative decision." (p.97-98)

The Report also called attention (p.97) to the issue of whether situations of this kind are perhaps capable of graded evaluation. Thus, some claims may be "less founded" than others yet still have some claim to being considered under the Convention. The following illustration is given in the Report. In Nazi Germany, Jews were subjected at first to no individual restrictions but were held up to public scorn and ignominy as a group. Later, the legal profession was closed to them, and gradually the noose was tightened until after November 10, 1938 Jews were de facto fair prey without legal protection. The Report poses the question: At what point would a Jew have qualified for protection had the Convention then existed? When would a claim have become well-founded?

These issues will arise in every case and require fine judgments which can only be made in the context of a full hearing by the Refugee Status Section and if necessary, by this Authority on appeal.

The Plaut Report therefore concluded:

(a) The concept of manifestly unfounded claim is logically so narrow as to be practically unworkable.

(b) Its maintenance as an enforcement tool renders it potentially open to administrative misapplication.

(c)  Therefore, all claims to refugee status must be considered as substantive.

(d) They must be decided by a member of the Refugee Board.

In our opinion the logic of the Plaut Report is compelling. It is also supported by respected scholars in this field, namely Professor Atle Grahl-Madsen and G.S. Goodwin- Gill.

We turn then to consider the question of country of first asylum.

THE QUESTION OF COUNTRY OF FIRST ASYLUM

The "country of first asylum" concept is sometimes referred to as the "safe third country" principle which, of course, is not to be confused with the so-called "safe country of origin" concept.

An accurate summary of the so-called principle is to be found in Plender, International Migration Law (1988) Second Revised Ed. 424. There, it is pointed out that in the absence of a widely accepted system for distributing refugees between States able and willing to grant asylum to them, there has developed "an informal practice" of returning refugees from countries of second or subsequent arrival to countries of "first asylum":

"A country of first asylum is to be described only in broad terms, since consensus on its definition is absent. Such a country may be taken to mean any State in which the asylum-seeker remained for a significant period in the interval between his departure from his country of origin and his arrival in a State which is unwilling or unable to permit him to reside on its soil. In the absence of universal agreement upon the principle and on the definition of a country of first asylum, the State which returns an asylum-seeker from its territory to a State other than that of his nationality cannot in general insist that he be admitted to the State to which he is sent. The authorities of that State may return him whence he came or remit him to another State. The human victims of this procedure have become known as "refugees in orbit"."

Plender further points out that the draft Convention on Territorial Asylum considered at the Conference held in Geneva in 1977 proposed to set a seal of approval on the practice of identifying countries of first asylum by adding the following additional paragraph to Article 1:

"Asylum should not be refused by a Contracting State solely on the ground that it could be sought from another State. However, where it appears that a person requesting asylum from a Contracting State already has a connection or close links with another State, the Contracting State may, if it appears fair and reasonable, require him first to request asylum from that State."

However, the participating States were then far from reaching agreement upon the connections or close links which were to be taken into account for this purpose and the Convention has proceeded no further than the draft stage.

In the European context it is to be noted that with the advent of the single market in 1992, many European states have been considering methods of improving border security and matters of mutual concern. Refugees have been amongst these concerns but far from promoting freedom of movement within the single market, the actions of some states suggest greater concern to cut down and reduce the flow of refugees than to enhance their rights. Thus the so-called TREVI group has lumped together terrorists, refugees and drug smugglers as common problems. Refugees are depicted as people who cynically use upheaval and turmoil at home to improve their economic prospects or sponge off more generous EEC social security systems. They are people to be stopped rather than helped. It also appears that member states prefer to agree these matters by multilateral agreements, reached outside of Community institutions, rather than by Directives, which might have the force of Community law and might be justiciable in the European Court: Macdonald & Blake, Immigration Law and Practice in the United Kingdom (1991) 3rd Ed. 301.

In June 1990 representatives from all the EEC member states save Denmark, signed the Dublin Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities. Macdonald and Blake op. cit. comment at 302:

"... it should be noted that the main object of the Convention is to prevent refugees seeking asylum in more than one EEC country. Their asylum application must now, generally, be processed in the first EEC state in which they land. But the wide divergence of practice in Europe may still create difficulties in bringing such an aim into effect. Recognition procedures are uneven. In some countries there is a right of appeal, in others, none. Many countries, such as Denmark, will only grant asylum if the claimant not only has refugee status but also complies with other national conditions. Such persons may then orbit inside Europe without any state breaching the principle of non-refoulement, but cannot in fact obtain asylum.

In the United Kingdom, where there is no need to legislate to give an effect to this Convention, the impact will be entirely negative. The Convention will add to a battery of visa controls, and carriers liability sanctions to discourage the arrival of refugees into Britain. Existing controls make it well nigh impossible for refugees to fly direct to the UK from trouble spots. Now the Dublin Convention will prevent them travelling overland from other EEC countries to reach their destination here. Such attitudes do not seem in keeping with the "common humanitarian tradition" by which the framers of the Convention determined to act."

In Canada the "safe third country" principle was first floated by Bill C-55 and although the safe third country provision is now part of the Immigration Act (see Section 46.01(1)(b)) it has not to date been implemented and no country has been designated as a safe third country.

The "safe country" principle was trenchantly criticized by Hathaway in The Humane and Just Alternative for Canada (1987) REFUGE Volume 7 No. 1, 10-11. Rather than attempt a summary of his points we set out the whole quote:

"Let me deal first with the exclusion of claims made by persons arriving from "safe countries". Because the determination of "safeness" will not be made on the basis of an assessment of the particular circumstances of the claimant, but rather will involve the mechanistic application of a list established by Cabinet, the decision-maker is effectively deprived of the discretion to examine the merits of the claim. That is, the proposed legislation, by virtue of its rigid, categorical character, may place particular refugee claimants at significant risk, notwithstanding the relative "safeness" of their country of origin for most other citizens. Too, the "list approach" may result in the rejection of claims during times of rapid and uncertain transitions of power within previously "safe" countries. For example, is Turkey a "safe" country? As a political ally, one might assume "why yes". But what of Turkey's policy of removing Iranians to Iran? Would Cabinet be prepared to declare a strategic ally not safe viz-a-viz Iranians? And if Turkey's policy of removing Iranians were not already in existence, could Cabinet move sufficiently quickly to amend the regulations if that policy were to be implemented tomorrow? Or would the initial numbers in flight from Turkey be deported back to Iran because the pre-screening authority in Canada was bound to apply a list?

In short, the "safe country" principle injects an unnecessary and totally unhelpful political element into the refugee determination process. Either we risk offending other nations by declaring them to be unsafe, or we play politics and turn a blind eye to the real risks faced by refugee claimants in the interests of diplomatic harmony.

Moreover, this kind of rigid categorical exclusion puts Canada in the position of being unable to guarantee compliance with its international obligation to avert the refoulement of refugees, as there is no means by which the Canadian authorities can ensure that the life or liberty of any particular claimant is not at risk. The Executive Committee of the UNHCR, of which Canada is an active leader, and with which the Refugee Convention obligates us to collaborate, has emphasized that decisions as to the safety of return can only be made on the basis of a careful and individualized assessment of the pertinent facts. See e.g. Conclusion 30(e)(i) of UNHCRExcom 1983.

One final point of the safe country principle: it will not work. As the remarks of Netherlands authorities after the Nova Scotia landing indicate, many "safe countries" are not willing to take back the persons that this bill seeks to exclude. Section 48.1(1)(b) is drafted far too widely, and will result in refugees either being thrown into orbit, or potentially being sent back to the country that has persecuted them, because no-one else will admit them. If there is to be a safe country exclusion, it must apply only to persons who have some real attachment to another "safe" state, in the sense that the country will both receive them and allow them to remain. The Bill as currently drafted fails to meet this fairly obvious requirement."

Returning to this theme in the later published The Law of Refugee Status (1991) Hathaway makes the point at p.46 that:

"There is no requirement in the Convention that a refugee seek protection in the country nearest her home, or even in the first state to which she flees. Nor is it requisite that a claimant travel directly from her country of first asylum to the state in which she intends to seek durable protection. The universal scope of post-Protocol refugee law effectively allows most refugees to chose for themselves the country in which they will claim refugee status."

In Hathaway's opinion, this basic premise flows from Article 14(1) of the Universal Declaration of Human Rights which provides "Everyone has the right to seek and to enjoy in other countries asylum from persecution". It also flows from Conclusion 15 (Refugees Without an Asylum Country) of the Executive Committee of the UNHCR, paragraph (h)(iii)-(iv):

"(iii)The intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account;

(iv) Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another State. Where, however, it appears that a person, before requesting asylum, already has a connection or close links with another State, he may if it appears fair and reasonable be called upon first to request asylum from that State."

Hathaway concludes at p.46 that this basic standard unequivocally refutes the legitimacy of a so-called "direct flight" requirement, under which only persons coming directly to an asylum state from their country of origin would be eligible for protection.

Commenting on the Dublin Convention and the yet to be implemented Canadian legislation, Hathaway observes (p.47) that schemes of this sort are inconsistent with the spirit of the [Refugee] Convention, and reflect a weakening of the commitment to the refugee's right to decide for herself the most effective means of securing safety from persecution. Direct flight schemes also infringe the principle of burden sharing, as those countries closest to the site of refugee movements will bear a disproportionate share of the collective duty of protection. He concludes at p.47:

"At present, then, the only claims to refugee status which may be deflected under international law remain those from the narrow category of persons defined in Conclusion 15 [a person with a connection or close link with another state and it is fair and reasonable that he be called upon first to request asylum from that state], and then only insofar as the state with which they are affiliated agrees to extend protection. Otherwise, unless the refugee secures the actual or de facto nationality of another state, she is entitled to have her claim to refugee status determined in the country of her choice."

The two Canadian Federal Court of Appeal decisions cited by Hathaway at p.49 to 50 have very much restricted the so-called direct flight rule and have held that a claimant's credibility cannot be discounted if there is a reasonable explanation for failure to claim refugee status during passage through or sojourn in other countries which adhere to the Convention.

Other writers have made the following points: Wydrzynski, Canadian Immigration Law and Procedure (1983) 335 refers to the decision of Heredio v M.M.I., I.A.B. 76-1127, January 6, 1977, C.L.I.C. No. 1.11 for the proposition that a person is not required to claim refugee status in the first country in which he arrives and draws attention to the fact that Guideline 18(b) of the New Refugee Status Advisory Committee Guidelines of Refugee Definition and Assessment of Credibility announced by the Canadian Minister of Employment and Immigration on 20 February 1982 states:

"A claim may be credible even though, since leaving home, the claimant has been in another country besides Canada and has not claimed refugee status in that other country. The third country may have had a regime similar to the one which the claimant was fleeing. A genuine refugee may have felt it unnecessary to claim refugee status in a third country, because he was able to stay in the third country for the time he wished without claiming refugee status."

Goodwin-Gill in The Refugee in International Law (1983) 52 notes the absence of agreement upon principles which would establish the appropriate state to consider an application for refugee status and points out at p.55:

"Serious problems arise, however, where the candidate for refugee status has not been formally recognized, has no asylum or protection elsewhere, but is nevertheless considered by the state in which application is made to be some other state's responsibility. Individuals can end up in limbo, unable to return to the alleged country of asylum or to pursue an application and regularize status in the country in which they now find themselves. The absence of agreement between states on responsibility in such cases, the variety of procedural limitations governing applications for refugee status and asylum, as well as the tendency of states to interpret their own and other state's duties in the light of sovereign self-interest, all contribute to a negative situation potentially capable of leading to breach of the fundamental principle of non-refoulement."

At p.85 Goodwin-Gill refers to a 1979 incident in which a vessel arrived in Australia with nine stowaways aboard; it had travelled directly from Vietnam, having spent some eight and a half hours bunkering in Singapore. The Australian authorities initially invoked the element of flag-state responsibility. The UNHCR successfully argued that the asylum- seekers' status as stowaways under local law ought not to prejudice their entitlement to apply for recognition of refugee status. Eight of the nine stowaways were subsequently recognized as refugees and granted residence. The ninth was resettled with close relatives in a third country. Goodwin-Gill emphasizes the "good faith" obligation at p.147. One might add that this obligation and the result in the case of the nine stowaways can only reinforce the reservations which have been expressed about the so-called country of first asylum doctrine.

A similar point is made by Stenberg in Non-expulsion and Non-refoulement (1989) 291- 292. But perhaps the point is most forcefully made by Bolten "From Schengen to Dublin: The New Frontiers of Refugee Law" in Meijers et al., Schengen - Internationalization of Central Chapters of the Law on Aliens, Refugees, Privacy, Security and the Police (1991) 8, 21:

"The prohibition of refoulement means nothing short of the obligation of a State of refuge to prevent a person being in danger of persecution and asking for protection from falling into the hands of his or her pursuers. States Parties to the Geneva Refugee Convention at times managed to ignore the fact that article 33 speaks of refoulement "in any manner whatsoever" or, indeed, tend to skimp the principles of good faith and "pacta sunt servanda" in interpreting and living up to the standards of treaties. The question whether a third State can be trusted with a person in danger of persecution is undeniably of crucial importance for every State wishing to comply with the essential obligation of non-refoulement.

But the Geneva Convention goes further than merely impose upon the Contracting States the prohibition of refoulement of a refugee. "Third countries", whether "of first asylum" or not, to which refugees may be asked to address themselves are referred to in Articles 31 and 32 of the Geneva Convention. In both articles the Convention provides that the Contracting States shall allow refugees "a reasonable period" to obtain admission into another country. Lacking such admission the refugee may naturally not forcibly be expelled pending this "reasonable period". Speaking of refugees who entered a second country of refuge unlawfully (Article 31 Geneva Convention) Grahl-Madsen poses the question: "But what if the refugee is not able to solicit any reasonable offer within a reasonable period?" And: "May the territorial authorities then go on refusing to regularize his status and thus deny him the benefits due to refugees "lawfully" and "lawfully staying" in the territory?". For his negative answer to this question Grahl-Madsen finds a forceful argument in the provision of Article 31(2), which forbids the application of restrictions to the movements of such refugees other than those which are necessary pending regularization of their status. When it has become clear that the person in question is a Convention refugee, the authorities are bound to abstain from any unnecessary restrictions. With the freedom to move and to settle freely goes the right to be considered "lawfully" present and "lawfully staying" in the territory.

In sum, the Geneva Convention system would only recognize one method for States to deny a person without a country of asylum refuge in their territory: the prior decision that s/he does not qualify as a Convention refugee. Consequently, the Geneva Convention would leave the Contracting States no right to create "refugees in orbit" merely through a refusal to consider their plea for refugee status."[emphasis added]

The last paragraph of this quote has particular relevance to the present case.

It is now possible to turn to the relevance of the decline by the Netherlands authorities of the refugee application lodged there in 1991.

SIGNIFICANCE OF THE DECISION OF THE NETHERLANDS AUTHORITIES

There is nothing in law or in principle to justify the refusal to consider an application for refugee status on the basis that another State Party to the Refugee Convention has already declined an application by that person for refugee status. This is a necessary corollary to what has already been considered in the context of so-called manifestly unfounded claims and the dubious principle of "safe third country".

This proposition is entirely consistent with Canadian jurisprudence. The Authority notes that in Re Jugpal (1989) 10 Imm LR (2d) 109 the Immigration and Refugee Board (Refugee Division) granted refugee status to an Indian Sikh from the Punjab who had on no fewer than two separate occasions travelled to Switzerland and applied unsuccessfully there for refugee status. The first application was lodged in June 1986 but following a decline decision, Jugpal was forced to return to India. After further incidents in the Punjab he returned to Switzerland in 1989. Once again refugee status was refused and he was ordered to leave Switzerland. He then travelled to Canada and sought refugee status in that country. Nowhere in the transcript is there to be found any indication at all that these prior unsuccessful applications somehow disqualified Jugpal from pursuing a claim in Canada. On the striking facts of the case (two separate applications and refusals, and the applicant travelling directly from Switzerland to Canada) one would have expected the issue to have been raised. The fact that it was not is of some significance.

The matter, however, must be dealt with at the level of principle.

The issue is addressed in some detail in Bolten, "From Schengen to Dublin: The New Frontiers of Refugee Law" in Meijers et al., Schengen - Internationalization of Central Chapters of the Law on Aliens, Refugees, Privacy, Security and the Police (1991) 8, 26- 28.

Bolten points out that the sovereignty of State Parties to the Refugee Convention implies that the determination of refugee status for the purpose of the Convention is the prerogative of every State. So that a positive decision giving recognition of refugee status by one Contracting State is not binding upon other Contracting States: Grahl- Madsen, The Status of Refugees in International Law Volume 1 (1966) 335-339. It may be a matter of international comity to respect the foreign decision, but it is not always accepted as such. This point is underlined by the fact that Conclusion No. 12 of the Executive Committee of the High Commissioner's Programme Extra-territorial Effect of the Determination of Refugee Status provides that:

"... a decision by a Contracting State not to recognize refugee status does not preclude another Contracting State from examining a new request for refugee status made by the person concerned." [emphasis added]

Bolten makes the pertinent observation that neither the Dublin Convention nor the Schengen Agreement make it mandatory for the states concerned to abide by a positive determination of refugee status by any one of them (p.27). However, at the same time, they wish to stand by each other's negative decisions. He rightly points out (p.27) that:

"The fact that State parties to the Geneva Convention hold to the national character of decisions to recognize a person's refugee status actually deprives them of the right to internationalize the effect of negative national decisions.

...

As long as legal differences between national systems of refugee and asylum law account for divergent decisions on claims to refugee status and applications for asylum, the principle of observing in good faith a Contracting State's individual obligations as laid down in the Geneva Refugee Convention continues to compel each Contracting State to reach the rejection of an application autonomously. To give another State's negative decision any binding effect under the present circumstances not only restricts the rights of refugees, but may be considered to be in breach of the principle of good faith owed to some hundred other States parties to the Geneva Convention, and which will be surprised to see that 12 treaty partners [to the Dublin Convention] have issued 12 asylum refusals through one single decision."

In our opinion these observations are compelling. They are also supported by Grahl- Madsen, The Status of Refugees in International Law Volume 1 p.154, 338-339. The following quote is taken from 154:

"Moreover, the Bundesverwaltungsgericht made it quite clear that it is irrelevant whether a person has been recognized as a "refugee" in another country or not. We may add that it cannot make any difference whether the country of former, intermediate, residence is a Party to the Refugee Convention or not bound by the Convention at all. Any person who is outside the country of his nationality or, in appropriate cases, the country of his former habitual residence may qualify as a "refugee", provided that he fulfils the other requirements for refugeehood laid down in Article 1 of the Convention."

To this German jurisprudence one should add the Netherlands decision cited in Bolten, "From Schengen to Dublin: The New Frontiers of Refugee Law" op. cit. 8, 20:

"States then may put refugees into orbit both before and after having established their refugee status, using the presence of a "first country" as an argument against access to the (full) asylum procedure or against the grant of asylum, respectively. The state of affairs in the Netherlands is such that the former - in this context most relevant - possibility is officially excluded. In 1987 the Court of Cassation, in a remarkable decision, ruled that the Dutch authorities had to determine autonomously whether an applicant for asylum to whom the refugee status had been denied by a German appeal court might be a refugee (from Turkey)."

It is in the light of the foregoing that we turn to the interpretation of the admittedly obiter observation made by Barker J. in his oral judgment delivered on 13 December 1991 at p.7 that the fact that the appellant's refugee application was considered and rejected by the Dutch authorities might be "a very potent reason against granting him refugee status here". Clearly the urgency with which the interim order application was brought precluded proper examination of the issue, an opportunity which the Authority has now had.

In our view, the fact that the Dutch authorities rejected the appellant as a refugee does not prevent us from entertaining the appeal and considering the case de novo. However, what was said by the appellant to the Dutch authorities may be highly relevant to the appellant's credibility. We believe that this is the proper interpretation of the passage from Barker J.'s decision to which we have referred.

Finally, we refer with approval to the following passage from Wydrzynski, Immigration Law and Procedure (1983) 334-335:

"On the other hand, acceptance of a refugee claim by a third-party signatory to the Convention is not binding on Canadian decision-makers, but may be evidence to be considered in relation to the claim."

To this we add that precisely the same applies to the rejection of a refugee claim by a third-party signatory to the Convention.

THE RELEVANCE OF EXCOM CONCLUSIONS

In view of the fact that we have referred on several occasions to conclusions of the Executive Committee of the UNHCR, it is appropriate to refer briefly to the weight to be given to those conclusions.

By virtue of Article 35 paragraph 1 of the Refugee Convention, Contracting States undertake to co-operate with the office of the United Nations High Commissioner for Refugees in the exercise of its functions, and in particular are under a duty to facilitate its duty of supervising the application of the provisions of the Refugee Convention. A Sub-Committee of the Whole on International Protection has, in recent years, contributed to the development and strengthening of refugee law. The Sub-Committee's conclusions, when adopted by the Executive Committee in plenary session, are good evidence of the views of states members and of their understanding both of the law and of the content of applicable standards.

The matter is examined in some detail by Sztucki in The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme (1989) Volume 1 International Journal of Refugee Law 285, 308. He concludes:

"On the whole they [the Conclusions] are sound in substance and consonant with the letter and the humanitarian spirit of both the 1951 Convention and other binding instruments relating to refugees in particular, and to human rights in general. Moreover, the Conclusions represent collective international expertise in refugee matters, including legal expertise, although the latter is not necessarily predominant in the Executive Committee. This perhaps may be a liability from the doctrinal point of view, but could be an asset from the practical point of view."

We accept this opinion. It is now appropriate for us to summarize our conclusions so far.

CONCLUSIONS

1.   The conclusions of the Executive Committee of the UNHCR Programme to which we refer in this decision, while not binding upon the Authority, are nonetheless of considerable persuasive authority.

2.   That when the New Zealand Immigration Service decided that it would not consider the appellant's application for refugee status, there was a fundamental misconception as to the nature of New Zealand's obligations under the Refugee Convention and as to the significance of the appellant's previously unsuccessful refugee application in the Netherlands.

3.   The Immigration Service decision was also a denial of the refugee status determination procedures introduced by the Government in January 1991, a denial which was fortunately redressed by the interim order made by Barker J. on 13 December 1991, but only as a result of the prompt action taken by the appellant's solicitors on the eve of his removal from New Zealand.

4.   That denial has further resulted in an unduly lengthy appeal hearing, the facts of the appellant's case never having been previously explored in New Zealand's refugee determination process.

The Authority also wishes to record, with some concern, that the appellant was until 14 February 1992 detained in the remand wing of a penal institution and while there was allegedly subjected to intimidation and on one occasion physically assaulted by other inmates. The circumstances are more fully set out in a letter dated 13 January 1992 from the Proceedings Commissioner of the Human Rights Commission. That letter properly draws attention to the fact that Conclusion No. 44 of the Executive Committee of the High Commissioner's Programme Detention of Refugees and Asylum-Seekers stresses that conditions of detention of refugees and asylum-seekers must be humane. The Conclusion emphasizes, in particular, that:

"... refugees and asylum-seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered."

The Authority recommends that urgent attention be given to this problem with a view to implementing this Excom Conclusion. We believe it is also appropriate, when considering the question of detention, to bear in mind that detention to deter others may well violate the fundamental Convention obligation of non-refoulement to the extent that incarceration encourages refugees to abandon their asylum applications and to return to territories where they may face persecution.

Furthermore, the policy of detention as a deterrent measure to control the "irregular" arrival of asylum-seekers in the United States and Canada has been described as "of uncertain effect". "Such a policy is also quite costly": Helton, "The Detention of Asylum- Seekers in the United States and Canada" in Adelman, ed. Refugee Policy: Canada and the United States (1991) 253, 264.

We intend to address now the question of the Authority's jurisdiction.

JURISDICTION

On 17 December 1990 Cabinet approved new procedures for determining applications for refugee status and on 11 March 1991 approved this Authority's Terms of Reference.

Paragraph 5 of the Terms of Reference prescribes the Authority's function in the following terms:

"... to make a final determination on appeal from decisions of officers of the Refugee Status Section of the New Zealand Immigration Service of claims to refugee status ...."

The word "decision" is a very general word indeed, as recognized in LA Ward Racing Syndicate v Trotting Appeal Committee (1987) 46 SASR 467, 472, 481 (a case apparently not cited before Barker J.) and there is no good reason for reading down the meaning of the word, particularly if the result is to place a restraint upon the right to appeal conferred by paragraph 5.

This conclusion is reinforced firstly by the terms of the decision in LA Ward Racing Syndicate v Trotting Appeal Committee where the Supreme Court of South Australia held that a decision to abandon an enquiry without first reaching a decision on the facts of the case was a "decision" within the meaning of a rule conferring a right of appeal against a "decision". In other words, the Court accepted that in the context of legislation conferring a right of appeal a "decision" can include a decision that no determination be made. The case is therefore directly in point given that the New Zealand Immigration Service made a conscious decision not to consider the appellant's refugee application or to make a determination upon it.

Secondly, the Authority notes that while it is not clear whether the point was argued before Barker J. on 13 December 1991, His Honour nonetheless concluded at p.6 of the decision that the appellant was entitled to have his appeal to this Authority determined. Certainly, that conclusion is amply supported by the decision in LA Ward Racing Syndicate v Trotting Appeal Committee.

On the first day of the hearing of the appeal we were told by counsel for the New Zealand Immigration Service that the Immigration Service did not accept Barker J.'s decision that a refusal to consider an application was a decline for the purpose of paragraph 5 of the Terms of Reference. We were told that even though the Immigration Service did not intend appealing against that decision, jurisdiction of the Authority was disputed but that for the purposes of the present case the point would not be pressed provided this was on a without prejudice basis to future cases.

The Authority could not accept this submission as it was of the view that if the Immigration Service disputed jurisdiction, the point would have to be argued and determined. It was not possible to accept jurisdiction on a without prejudice basis.

In the event, when the hearing of the appeal resumed on 28 January 1992, counsel for the Immigration Service advised that the Immigration Service had, after further consideration, come to the view that the Authority did have jurisdiction to hear the appeal and for this reason the point would not require argument. The submission was in the following terms:

"The New Zealand Immigration Service with respect, and on reflection, accept His Honour's conclusion [the decision of Barker J. delivered on 13 December 1991] as being in accordance with a "fair, large and liberal" interpretation of the relevant procedures. At the end of the day the negative response received by the asylum-seeker will indeed be perceived by him or her as being the same whether it arises from a refusal to consider or a decline on the merits. In terms of paragraph 6 of the Procedures, therefore, the refusal to consider the appellant's claim constituted a decline of refugee status by the Service."

With respect, no other conclusion was possible in the light of the decision given by Barker J., the plain terms of paragraphs 5 and 6 of the Terms of Reference and finally, the decision in LA Ward Racing Syndicate v. Trotting Appeal Committee (1987) 46 SASR 467.

It is also an interpretation which is in harmony with, and more likely to give effect to, New Zealand's obligations under the Refugee Convention. The right recognized under Article 14 of the Universal Declaration of Human Rights to advance a claim for refugee status would have little practical content if States were entirely at liberty to determine, in their absolute discretion, not to consider applications and to deny those persons a right of appeal.

The interpretation is also to be preferred as it gives effect to the "good faith" obligation contained in Article 26 of the Vienna Convention on the Law of Treaties and will also give practical effect to the principle that the Refugee Convention is to be applied in a generous and humanitarian spirit. Addressing the Convention, Grahl-Madsen in The Status of Refugees in International Law Volume 1 (1966) 145 observed:

"There is quite some justification for the view that a Convention, which States have agreed upon in order to regularize the position of human beings whose status would otherwise be precarious, should be applied generously in a sympathetic and humanitarian spirit. Moreover, in Recommendation E of its Final Act the Conference of Plenipotentiaries has called for such a generous application of the provisions of the Refugee Convention ...."

By analogy with Section 5(j) of the Acts Interpretation Act 1924, a "fair, large, and liberal construction and interpretation" will best ensure the attainment of the object of the Refugee Convention according to its true intent, meaning, and spirit.

For these reasons the Authority finds that it has jurisdiction to entertain the present appeal and now proposes to address the facts.

APPLICATION TO THE NETHERLANDS AUTHORITIES FOR REFUGEE STATUS

As earlier mentioned in this decision, in March 1991 the appellant lodged an application for refugee status in the Netherlands. That application was ultimately unsuccessful, the decline decision being dated 28 June 1991.

At the hearing before this Authority on 23 and 28 January 1992, the content of the appellant's case to the Netherlands authorities assumed some prominence as it was submitted by the New Zealand Immigration Service that the case presented by the appellant in the Netherlands was different in a substantial degree to that presented to this Authority. We were asked to place considerable weight on the alleged discrepancies in assessing the appellant's credibility.

The appellant through his counsel anticipated this argument and the point was specifically addressed in both opening and closing submissions and in the appellant's own evidence.

In order to understand the issues it will be necessary to set out in some detail the respective cases as presented in the Netherlands and in New Zealand. In deference to the appellant's submission that language and interpretation difficulties led the Dutch authorities to completely misunderstand the basis of his claim, we emphasize that the summary which follows has been taken from the English translation of the Dutch documents (which have been supplied to all parties with the consent of the appellant). Further, in order to present the account in as neutral terms as possible, we emphasize that the details which follow are those which are recorded in the transcript in contra- distinction to the details actually given by the appellant to the Dutch officials.

According to the appellant he was interviewed on three separate occasions as follows:

(a) Upon his arrival at the Refugee Processing Centre at Venlo on the border between the Netherlands and Germany.

(b) A second interview upon his arrival at the Refugee Centre at Oisterwijk.

(c)  A third and substantive interview at Oisterwijk which purportedly took place on 13 May 1991. The interview was conducted with the assistance of an Arabic interpreter of Tunisian origin.

The English translation records the following information as having been supplied by the appellant:

(a) The appellant claimed to be a stateless Palestinian professing the Islamic faith.

(b) His father, "MAS", died in 1975 at Al Azieba in Palestine. The appellant's mother told the appellant that he (his father) had been shot dead. She did not know whether he had been killed by other Palestinians or by the Israelis.

The appellant's mother was "FD" aged approximately 45 years. She was still alive but the appellant did not know her whereabouts.

(c)  Following the death of the appellant's father, the family split up. The last time the appellant saw his mother was in 1975 in Al Azieba.

(d) The appellant had three brothers called Mostafa S, approximately 22 years of age; Hassan S, approximately 16 years and Hussein S, also approximately 16. Hassan and Hussein lived in Tunis, Tunisia and Mostafa lived in Beirut. The two younger brothers were taken away by relatives after the death of the appellant's father as their mother had difficulty supporting the children.

(e) The appellant himself was taken in by relatives in Beirut and attended the Beirut Islamic School for four years. He was 10 years old when he attended that school and had not previously attended school in Palestine. It was not a day school. He only went a few hours per week and at the end of the four years his education came to an end.

(f)   From the appellant's 10th to his 16th year he lived in the village of Touria in the Tour Street neighbourhood. He lived there with his cousin.

(g) From his 16th year to his departure from Lebanon on 25 February 1991 the appellant lived with a family in Al Gudus Street. He had his own room there but worked for the family.

(h)  In 1980 he returned to "Palestine" in order to obtain an acknowledgement of his Palestinian birth. This was necessary because in 1980 he applied in Beirut for a Palestinian refugee passport. The application was made at the Al Hilwi office which apparently gives help to Palestinian refugees. The address of the office was given as 15 Tour Street in South Beirut in the District of Bolivar (phonetically). There he was told that he had to go to Jerusalem to obtain an extract from his birth certificate. He accordingly travelled to Jerusalem and went to the Islamic Party and there requested an extract from the birth register.

Asked about the exact location where he went to apply for that extract, the Dutch authorities recorded the appellant as saying that he went to the village of Al Azieba where there were staying some Bedouins who knew his parents. There he asked for an extract from the birth register. The Bedouins replied that they were Islamic people defending Palestine and that the appellant first had to fight for Palestine to defend it against Israel and only then would he be able to get an extract from the birth register. He would get a paper showing that he was a Palestinian citizen. He understood that the paper he would receive from the Bedouins would enable him to go to Jerusalem to obtain the extract from the birth register. It was apparently a declaration by witnesses that the appellant was in fact Palestinian.

The appellant stayed one year with the Bedouins and ultimately returned to the Lebanon at the end of the year without having succeeded in obtaining a birth certificate.

(i)   He said that during this one year he was trained how to handle a weapon and in particular was trained to shoot with what was described as an R45 gun. He did not exercise much with it. First he had to watch other people to see how they used the weapon and only then would he be allowed to handle it himself. Although not detained or locked up he was not allowed to leave the area around the village and was under observation as he had yet to gain the trust of the villagers. He said that the Bedouin were all farmers and that people in the village took their meals together. He helped a little in the fields and was allowed to eat from the common pot.

After one year he could not take this life any more and left the village at night. He walked and hitchhiked back to the Lebanon. At the Israeli-Lebanese border he avoided the checkpoint by crossing at night with the assistance of someone who knew the terrain.

(j)   The appellant said that he had never been a member of any anti-government party, group or movement in Palestine, Israel or Lebanon. Neither had he ever been a sympathizer of such an organization. He had never carried out any anti- government activities in any of the three countries. He had never been imprisoned and had never been arrested.

Not having any papers to establish his identity, he never reported to the Lebanese authorities and stayed in Lebanon illegally.

(k)  Asked questions about matters of common knowledge in Lebanon such as the names of squares, buildings or statues in Beirut, the appellant knew none. He misdescribed the currency in Lebanon as "the lire" instead of Pounds, did not know the names of any newspapers and did not know the names of prominent politicians or army staff in Lebanon.

Pressed on his general knowledge of Palestine, he is recorded as saying that he did not know much about the history of Palestine, that he only knew that Palestine was an Arab country next to Israel. There was a quarrel over borders and the Palestinians sold land to the Israelis. Then there was a war. He did not know when that was. He said that Palestinians sold Palestine to the Israelis and later on the Palestinians wanted their land back and there was a war. Shown a map of Israel and asked to indicate which areas made up Palestine, the appellant stated that he could not read maps and could not indicate which regions belonged to Palestine. He emphasized that he was not very well educated, nor did he enjoy politics or have any knowledge of political matters.

(l)   He said that he left Lebanon because he had no residence papers and lived in fear of being killed because he did not fight with the Palestinians. He was not wanted by the Israeli authorities as they did not know him, nor was he wanted by the Lebanese authorities as they did not know him either. His fear was of other Palestinians who were hostile to him because he did not want to fight for the liberation of Palestine.

(m) He left Lebanon by ship on 25 February 1991. He received assistance from the Al Hilwi office in Tour Street, South Beirut. He was given a false Lebanese passport, brown in colour with the drawing of a tree on the passport's cover. His cousin helped him to obtain this passport which was in the name of Mohammad but carried the photograph of the appellant. The name of the ship was Al Hadiem and the ship's crew was made up of Lebanese and Jordanians. He did not know the nationality of the ship. The entire crew knew of his presence and that of five other individuals who boarded the ship. After some 16 days the ship arrived at La Rochelle in France. There the appellant left the ship.

(n)  He then travelled to Paris by train, a journey which took four to five hours. In Paris an Arab bought him a ticket to the Netherlands and showed him which train to catch. He arrived in Rotterdam at an unknown time of day and there was no passport control on the way.

The refugee application was submitted on 14 March 1991, less than a month after leaving Lebanon.

On these facts, the Netherlands authorities concluded that it was unlikely not only that the appellant was a Palestinian, but also that he had lived in Lebanon. In the alternative, they found, in effect, that the subjective element of the fear of persecution was absent; as to the objective element it was found that there were no reasonable grounds on which a fear of persecution could be claimed. Finally, his desire to escape the general situation in his alleged country of origin was insufficient grounds in itself to justify the grant of refugee status.

The appellant's submissions and evidence on the Dutch document were clear and forthright. We will address them as a separate issue.

THE APPELLANT'S WRITTEN RESPONSE TO THE NETHERLANDS RECORD OF INTERVIEW

In essence, the appellant claims that the Netherlands authorities completely misunderstood what he told them.

The principle points identified in submissions were as follows:

(a) The appellant had no legal representation.

(b) He did not prepare a written statement of his case in his language of choice, namely classical Arabic.

(c)  He was given no opportunity to comment upon or challenge the interview report.

(d) There is considerable doubt as to the quality of the interpretation services provided, substantially hampering effective communication between the appellant and the interviewing officer.

(e) There is internal evidence within the Dutch document that indicates that the report was based upon unsatisfactory collection of evidence and there is further internal evidence that what was said by the appellant was misunderstood.

The thrust of the submission made on behalf of the appellant is that there is serious doubt as to the evidentiary value of the Dutch document and that the Authority should place little or no weight at all upon what the appellant is recorded as saying to the authorities in the Netherlands.

The circumstances of the interviews were addressed by the appellant at some length in his written statement and were supported by detailed submissions. We do not intend repeating what is said in these documents and what follows is by way of illustration only. We will deal separately with his oral evidence on the point.

(a) The initial interview was for approximately 15 minutes only and the language of the interview was French. In the appellant's opinion the interviewing officer spoke poor French. The appellant is sure that he told the authorities at this interview that he was a Palestinian from Rabat in Morocco. Asked questions about his family he told the authorities that his father worked on a farm. The appellant thinks that he may have used the word "bedouin", being an Arabic word which means "peasant farm worker". He was asked to identify the country which is next to Palestine and the appellant had replied Lebanon. He was then asked various questions about Lebanon including the currency, political personalities and so on. He was asked similar questions about Syria.

(b) At the substantive interview held at Oisterwijk on 13 May 1991 the appellant was not legally represented although there was a Dutch woman (from a refugee centre) who spoke but little French. The Arabic interpreter was a woman from Tunisia and although the appellant could understand her questions, he formed the opinion that she did not have a good understanding of what the appellant was saying. He thinks this may have been due to his Moroccan accent.

(c)  The interview lasted approximately four hours but the notes recorded by the interviewing officer were not read back to the appellant and he was at no time given an opportunity to verify its accuracy. Furthermore, the document was never translated to the appellant either in French or Arabic.

(d) The appellant points to the fact that the name of his father recorded in the document is incorrect; that it incorrectly records that his father is dead. He denies ever saying this. He accepts that he did tell the officer that he did not know whether his father was alive or dead and it is possible that the officer either misunderstood him or that there was an incomplete translation of the appellant's response.

(e) Whereas the document records the appellant as having three brothers, the appellant explained that when asked how many brothers there were in his family he might have said "three", but was including himself in this number. The officer may have mistakenly interpreted the answer as meaning that there were three brothers in addition to the appellant.

In this regard it should be mentioned that when the appellant was interviewed by an immigration official in Australia the appellant is recorded as having told the Australian officer that he (the appellant) had two brothers called Hassan and Housein, being twins. The appellant believed that they lived in Tunisia but had not seen them since he was a little boy. This is to be contrasted with what he told the Dutch official, namely that he had three brothers called Mostafa, Hassan and Hussein. Hassan and Hussein lived in Tunis whereas Mostafa lived in Beirut.

These discrepancies were explored at the hearing. It emerged, with the assistance of the interpreter, that the appellant has a limited vocabulary and when intending to convey that he has a pair of brothers, used a word which can be interpreted either as "a pair", or "two", or "twins". It was therefore possible for him to use Arabic words which mean "I have a pair of brothers" or "I have two brothers" but for this to be mistranslated by an interpreter as "I have twin brothers". The explanation for the names Hassan and Hussein is that the appellant does not know whether his younger brother is called Hassan or Hussein, or both.

The Authority comments that this provides a practical demonstration of the misunderstandings which can occur where evidence is translated.

(f)   The appellant told the Authority that the paragraphs in the section headed "Personal Circumstances" in the Dutch record are all incorrect. He stressed that he has never been to Beirut.

(g) He further stressed that he never returned to Palestine after leaving for Morocco. However, he did tell the interviewing officer about his life in Israel before he left Palestine and believes that the officer mistakenly assumed that the appellant was describing events which took place at some later time, thereby assuming that the appellant had indeed returned to Palestine in his later years.

(h)  He told the interviewing officer at Oisterwijk that he was of Bedouin origin. He used the Arabic word "El Bodiya" and explained to the officer that this meant that he was from a peasant farming family. The appellant points to the fact that the interview report refers to the appellant living in the village of "Badouiya". He says that this is a clear example of how everything he was saying at the interview was being misinterpreted. For he was not talking about the name of a village. Rather, he was describing the use of the word "Bedouin" in Arabic and how that word simply means a peasant or a farmer.

(i)   The interview report, in describing the appellant's nocturnal departure from the Bedouin village in the Lebanon states that the appellant "walked and hitchhiked back to Lebanon". The appellant describes this as a ridiculous statement as nobody would dream of trying to do that. He raises the possibility that the officer transposed events in that the appellant related to the officer the journey he took at the age of 10 from Palestine to Morocco. The appellant and his uncle would take public transport to a border and on occasion, walk across the border. Part of the journey was by camel and part of it by bus across the desert through Egypt, Libya, Tunisia, Algeria and finally to Morocco.

(j)   The appellant told the officer "all about Morocco" and is surprised that there is no mention of Morocco in the interview report.

Many of these points and others were, as mentioned, amplified in submission and we were referred to a number of linguistic phenomena including metathesis (which relates to the transposition of words or the interchange of position between sounds or letters in a word). The essential point was that the appellant as a non-Dutch speaking person was not placed in the same position at the interview as a Dutch-speaking person with the result that the record of interview eventually became a record of misunderstanding.

The question for decision is whether the entire record of interview is to be disregarded (as urged by the appellant) or whether the record is nonetheless material which can properly be taken into account when assessing the credibility of the appellant's evidence before the Authority. Before this question is addressed, it is necessary to provide a brief summary of the appellant's evidence before us. It will be seen that it is almost an entirely different account to that recorded by the Dutch authorities. Indeed, the two accounts appear to have only one essential common point, namely, that the appellant was born in Palestine and spent the first 10 years of his life there.

THE APPELLANT'S EVIDENCE BEFORE THE AUTHORITY

The following principal points are taken from the appellant's statement in support of the application for refugee status and submitted to the New Zealand Immigration Service under cover of a letter dated 21 January 1992 from Haigh Lyon & Co.

(a) He was born on 15 May 1965 in Jerusalem and until leaving Palestine lived in "Elazibar, Jerusalem", described as being approximately 10 kilometres to the north of the city itself. At the hearing itself, the appellant gave his date of birth as 15 May 1967, but in any event was adamant that he left Palestine when aged 10 years.

(b) He has two brothers, one of whom is older and the other is younger. Both his parents were born in Palestine/Jerusalem. His father's name is "MS" and his mother is "FE". His older brother is Mustafa S aged 29 or 30, while Hussein is presently aged between 16 and 18 years.

(c)  The area in which the family lived was farmland occupied by Israelis. In 1978 there was a lot of fighting in the neighbourhood between Israelis and Palestinians with the result that the appellant's parents decided to send the appellant to live with his uncle in Morocco while the two remaining brothers were sent to Tunisia to live with another relative. As an aside, the Authority notes that this decision was taken some 11 years after the Israeli occupation of the West Bank in 1967 and some five years after the 1973 Yom Kippur war. In September 1978, US, Egyptian and Israeli leaders met at Camp David and agreed on a two-part framework for peace. The first was an Israeli-Egyptian treaty returning the Sinai to Egypt and providing for normal relations between the two nations. The second called for talks among Egypt, Israel, Jordan and the Palestinians for self- government in the West Bank and Gaza Strip, and a five year transition period before a final settlement and a Jordanian-Israeli peace treaty. This second part never really got under way. The Camp David Peace Treaty was not signed until March 1979.

(d) The appellant's parents remained in Palestine and he has not had any contact with them since he left for Morocco. Nor has he had any contact with his brothers living in Tunisia.

(e) The appellant's uncle is a Palestinian married to a Moroccan national and has residence status in Morocco. The uncle and the appellant travelled to Morocco through Egypt and then through Tunisia and Algeria across North Africa by public transport, mostly buses.

(f)   In Morocco the appellant lived with his uncle, the uncle's wife and their young daughter. The family lived at [address deleted] Rabat. The building was described as having terraces and approximately three rooms. The appellant and his adopted family lived on the first floor. The uncle was a teacher at a local mosque but was also a businessman who made occasional business trips on a Morrocon passport trading in books. Through his uncle the appellant would receive news about his brothers in Tunisia.

(g) The appellant was "an illegal alien" in Morocco but kept this fact secret. When 13 years old he attended a technical school, entry to which was gained by using a false identity card in the name of one Aziz E

and the appellant was known at school as Aziz. At school he learnt French, Arabic, Mathematics and Tailoring. He did not gain a diploma. He could not remember the address of the school. After three years he went on to nightschool (at the same school) and during the day worked as a tailor. He worked for approximately two years.

(h)  The appellant decided to leave Morocco in about 1987, although he was not sure of the exact time and thought that it could also have been in 1988. The reason for his decision to leave was because he had entered Morocco illegally, had no rights or legal status there and felt that there was a real chance that if his true identity was discovered, the Moroccan authorities would return him to Israel.

(i)   Prior to leaving Morocco he approached a Palestinian organization in Morocco and obtained a yellow identity card identifying him as a Palestinian living in Morocco. A member of his family signed a piece of paper to enable him to obtain the card. He was also advised to write to an address in Jerusalem to obtain his birth certificate. He was told by both the Palestinian organization and by his uncle that this would assist him in applying for residence in Morocco. In evidence he said that for four years prior to his departure from Morocco he made attempts to obtain his birth certificate and his parents' marriage certificate, but without success. His last attempt was in 1987. The address in Jerusalem had been given to him by his uncle. Sometimes the appellant wrote in person, at other times his uncle wrote on his behalf.

(j)   In 1987 (approximately) the appellant travelled to the Atlantic port of Kenitra and stowed away on board a ship which arrived at La Rochelle in France approximately six days later. While in France he threw away the yellow identity card obtained from the Palestinian organization in Morocco. For the next two years or so the appellant lived and worked in different parts of France as an itinerant labourer. He did not apply for refugee status but learnt from other Arabic people whom he met there that the Netherlands had a good human rights record and that it was easy for Palestinians to obtain refugee status in that country. While in France he used someone else's identity card. It was in the name of a person named Habib.

(k)  He travelled by train to Belgium where he worked for a short time as a painter. Having saved enough money he bought a train ticket to the Netherlands, arriving in that country at the end of February or the beginning of March 1991. On 14 March 1991 he lodged an application for refugee status.

(l)   The appellant told the Authority that he could not return to Jerusalem as he feared he would be killed either by the Israelis or by other Palestinians. He feared the latter group because he anticipated that he would be mistaken for an Israeli spy. This was because he did not have a Palestinian accent. His accent was Moroccan. In short, he would be treated with suspicion by both Palestinians and Israelis. In relation to the Israelis he detailed his belief that they arrested, tortured and killed Arabs, particularly young Arab men. As he did not know where his parents lived he would not be able to obtain any assistance whatsoever. As a Palestinian he feared death at the hands of the Israelis. He referred to them as people who did not like Palestinians who defended their country. When it was pointed out to the appellant at the hearing that he had never taken part in any defence of his country, the appellant replied that the Israelis did not need a reason to kill Palestinians. They did it simply because they did not like them.

As previously mentioned, the appellant's account as given to the Authority is substantially different to that recorded by the Dutch authorities. The appellant was questioned about these differences and it is necessary to record his responses.

THE APPELLANT'S ORAL EVIDENCE IN RESPECT OF THE NETHERLANDS RECORD OF INTERVIEW

In his evidence the appellant repeated the principal points made in his written statement. In response to questions from the Authority he stated (inter alia):

(a) He had never been to the Lebanon and had never told the Dutch authorities that he had been to that country.

(b) He told the Dutch interviewing officer (through the Tunisian interpreter) at least six or seven times that he had lived in Morocco from the age of 10 years. It was the officer's responsibility that this information is not recorded in the record of interview.

(c)  He denied telling the officer that he left his homeland on 25 February 1991. He further stated that he had told the interviewing officer that he had in fact worked in France.

He further denied telling the officer that he had travelled on a passport, brown in colour with a drawing of a tree on the passport's cover.

(d) He denied telling the officer that he believed that "the Palestinians sold Palestine to the Israelis and later on the Palestinians wanted their land back and there was a war.". (p.197 of the NZIS file).

(e) He further denied telling the officer "In Beirut I worked for a French family. I worked in the fields and in the kitchen. I was about 16 years old when I started working for this family and I worked there for seven years. I cannot remember until what year I worked there. I do not know what the family's surname is. The family's address was [detail omitted]. I think it was No. 165.". (p.199 of the NZIS file).

He said that the number 165 did not mean anything to him.

He agreed that there was no similarity between this description and his life in Morocco.

(f)   He denied having ever worked in a vegetable shop (p.199).

(g) He further denied telling the interviewing officer that he had returned to Palestine and there received training in the use of a gun. He said that he had never received any such training with firearms (p.198 of the NZIS file).

He emphatically denied telling the officer that he had ever returned to Palestine.

He denied telling the officer "after one year I could not stand the life with the farmers any more and I left.". (p.198 of the NZIS file).

He denied that he had ever been approached by a Palestinian asking him to join the fight against the Israelis. (p.198).

Because the accounts given in the Netherlands and New Zealand differed so markedly, the Authority explored with the appellant various possibilities which might explain the differences. For example, he was asked whether he received the impression that the Dutch interviewing officer was of the mistaken view that the appellant's country of origin was the Lebanon and for that reason persisted in asking questions about the Lebanon, thereby placing the appellant's answers in an incorrect geographical and factual context. The appellant, however, replied that he did not gain any such impression. Whenever he was asked questions about the Lebanon he answered to the best of his ability. It was not a case where he thought they were mistaken and simply went along with the tide of events.

Asked whether he had told lies to the interviewing officer in a misguided but desperate attempt to avoid return to the feared persecution, the appellant was adamant that he had at all times answered the officer's questions truthfully. He had not told any lies and he had not made up any story.

It is now necessary to make an assessment of the appellant's credibility.

ASSESSMENT OF CREDIBILITY

Credibility involves findings of fact in the context of each particular case and therefore no uniform set of rules for determining credibility can be established. However, we have borne in mind the factors discussed in Grahl-Madsen, The Status of Refugees in International Law Volume 1 145-150 and Hathaway, The Law of Refugee Status 83-87. Clearly there must be valid reasons to doubt the credibility of an applicant and there is no requirement that testimony which is plausible, credible and frank must be supported by external corroboration.

One relevant factor, however, is the consistency with which an applicant has told a particular story. It is widely accepted that the fact that a refugee claimant has changed his or her story from time to time is not necessarily indicative of deliberate untruthfulness. In many cases there is a clear and convincing reason for inconsistencies and changes. Examples which come to mind are memory failures, an inability or reluctance to relive traumatic events or to recount painful facts. Sometimes there is a misguided desire to conceal the identities of other persons involved in the events. One should not be overly zealous in attacking the credibility of an applicant and it is not permissible to base findings on insignificant matters or to draw conclusions without proper evidence. Further, lies do not prove the converse. See, for example, Refugee Appeal No. 19/91 Re SA (17 February 1992) at 6.

Finally, there is the point made by the Immigration & Refugee Board (Refugee Division) in Re Sittam Palam (1990) 13 Imm LR 2d 287. A lack of credibility might not allow a meaningful finding of facts to be made with regard to incidents of the history or past persecution mentioned by an applicant. However, some aspects of the claim can still remain intact, such as (on the facts of the case) the fact that the three applicants were of Tamil racial background and the principle claimant belonged to a group made of young Tamil males living in the Northern Province of Sri Lanka. Those facts were not tainted by the lack of credibility. The determination of a well-founded fear of persecution had to be made by reference to the "untainted" facts.

That having been said, however, consistency of an applicant's evidence is nevertheless a relevant factor in determining the credibility issue. That is certainly the case on the present facts.

It is important, however, to properly identify the proper relevance of a previous inconsistent statement. We adopt the following proposition from Phipson on Evidence (14th Ed. 1990) para 22-23:

"... a previous inconsistent statement, whether oral or documentary, can be put to a witness in cross-examination for the purpose of testing his credibility. In such cases, the statement is not admissible for the purpose of proving the truth of its contents: it was the fact that the statement was made and is inconsistent with the witness's oral testimony which is of significance."

The issue is addressed in the following terms in Mathieson, Cross on Evidence (4th NZ Ed, 1989) 219:

"Of course the rejection of W's evidence that he was in Rome on May 1st because he had previously said that he was in Carthage throughout that day does not entail acceptance of this latter fact. But if one accepts W's previous statement that he was not in Rome on May 1st this does entail rejection of his testimony that he was there during that day. Statement and testimony often cancel each other out because there is no particular reason why one should be preferred to the other. The testimony is on oath, but in the absence of a convincing explanation of the inconsistency, it is the testimony of someone who has, or may have, lied on the same point on a previous occasion."

To a similar effect see McGechan, Garrow and McGechan's Principles of the Law of Evidence (7th Ed, 1984) 297 and R v Nakhla (No. 1) [1974] 1 NZLR 441, 452 line 3 (CA). Simply because a witness has made previous inconsistent statements does not mean that that witness's evidence should be entirely disregarded. However, in the context of a jury trial, it is necessary to tell the jury that the evidence of the witness should be treated with considerable caution in view of all the circumstances.

The conclusions that we have reached are as follows:

(a) As to the Dutch record of interview, we find that the interviewing officer (or officers) correctly recorded the essential details of the appellant's evidence to them. If there are errors in the record, they are only of a minor degree. The record is replete with too much detail for the document to be explained away as a document so deficient that no weight can be given to it. We refer in particular to the detailed description of the appellant's life in the Lebanon, the equally detailed description of his temporary return to Palestine, his training in the use of a gun and the account of his departure from Lebanon in February 1991. He has denied supplying these details to the interviewing officer. But unless the interviewing officer invented these details, which we cannot accept, the information could only have come from the appellant. We accordingly reject the appellant's evidence to us that he did not give an account to the Dutch interviewing officer which claimed, essentially, that he was a Palestinian who at 10 years of age had moved to Lebanon and had lived there since that time apart from the one year in which he returned to Palestine. Nor do we accept his evidence that he told the authorities in the Netherlands that he had lived in Morocco from the age of 10 years. It follows that we also reject his evidence that at no time did he tell the Dutch authorities that he had been to Lebanon.

(b) The appellant told us that it was his belief that he had answered truthfully all of the questions asked by the Dutch interviewing officer. He also insisted that his evidence to us was truthful. Plainly the two different accounts are irreconcilable and it follows from our finding in paragraph (a) above that it is not possible for the appellant to have been truthful on both occasions.

(c)  Our conclusion is that both versions are fabrications and that no weight can be placed on the evidence given before us by the appellant.

In summary, our finding is that the appellant is not a credible witness and we do not accept his evidence in any respect.

It follows that it is our finding that he is not a person who is a refugee within the definition of that term contained in Article 1A(2) of the Refugee Convention.

ALTERNATIVE GROUND FOR DECISION

Apart from the issue of credibility, our decision on the case would be the same if we were to proceed on the assumption that the appellant was a Palestinian who had lived for several years in Morocco. For the purpose of this alternative ground for our decision, we intend to address the issues which would arise were these assumptions made in the appellant's favour. For the purpose of addressing these issues (and for that purpose alone) we will assume in favour of the appellant that the evidence he has given to the Authority is credible evidence. In this alternative part of the decision, therefore, we will ignore entirely the statement recorded by the Dutch authorities.

The Inclusion Clause in Article 1A(2) relevantly provides that a refugee is a person who has a:

"... well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwiling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."

In the normal situation, the issues would be articulated in the following terms:

1.   Is the appellant genuinely in fear?

2.   If so, is it a fear of persecution?

3.   If so, is that fear well-founded?

4.   If so, is the persecution he fears persecution for a Convention reason?

This is the formulation we employed in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991).

However, the appellant's claim to be a Palestinian introduces additional issues both in terms of the Inclusion Clause (Article 1A(2)) and the Exclusion Clause in Article 1D.

In terms of the Inclusion Clause, the additional issues are as follows:

5.   Does the appellant have a nationality?

6.   If not, is he outside the country of his former habitual residence?

7.   Is he unable, or owing to the well-founded fear, unwilling to return to it?

The further issues introduced by the Exclusion Clause in Article 1D are:

8.   Is the appellant a person who is at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance?

9.   Has such protection or assistance ceased for any reason, without the position of the appellant being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations?

10. Is the appellant ipso facto entitled to the benefits of the Refugee Convention?

Ordinarily, one would be expected to address the Inclusion Clause first (issues 1 to 7) before addressing the Exclusion issues in paras 8 to 10. See Hathaway, The Law of Refugee Status 56. However, we are of the view that in the present case the interests of clarity require us to first dispose of the application of Article 1D.

ARTICLE 1D

The full text of this Article provides:

"This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention."

In our opinion the two paragraphs have different applications. The first paragraph addresses the situation which pertains when a person is in fact presently in receipt of protection or assistance from an organ of the United Nations. The second paragraph addresses the situation that pertains if and when protection or assistance from an agency of the United Nations has ceased without, in the words of the paragraph "the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of United Nations ....". The words "ipso facto" which follow give rise to a problem of interpretation which we will deal with separately.

There is a general consensus that the provisions of the first paragraph of Article 1D primarily affect the status of persons who are receiving assistance or protection from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA): Grahl-Madsen, The Status of Refugees in International Law Volume 1 140- 142; Hathaway, The Law of Refugee Status 205-209; Plender, International Migration Law Revised 2nd Ed. 439.

A brief reference to the travaux préparatoires is necessary.

At the time the Refugee Convention was signed there were at least two organs or agencies of the United Nations other than the UNHCR which were providing assistance and/or protection, namely the International Refugee Organization (IRO) and UNRWA. It was a well-known fact that the IRO was about to close its operations and that it would in all probability have ceased to exist at the time when the Refugee Convention came into force. UNRWA, on the other hand, was expected to exist for an undetermined period of time. It still exists today: Grahl-Madsen op. cit. 140-141. Hathaway op. cit. 206 adds that the United Nations Korean Reconstruction Agency (UNKRA) was also in existence at the time. He points out that in part, this exclusion clause was intended to prevent the overlapping of the mandates of UNHCR and the pre-existing agencies:

"More profoundly, however, it resulted from the strongly held view of Arab states that because the plight of Palestinian refugees was the consequence of the establishment of Israel by the United Nations itself, the UN should bear a more direct and obvious responsibility for their well-being." (p.206)

Similarly, see Takkenberg, The Protection of Palestine Refugees in the Territories Occupied by Israel (1991) Volume 3 International Journal of Refugee Law 414, 419:

"Among the reasons for excluding Palestinian refugees was the desire not to create overlapping competence, as well as the reluctance of the Arab countries to be confronted with the burden of these refugees as long as the United Nations was caring for them. Several Arab countries were also concerned that Palestinian refugees, whose reasons for flight were largely the responsibility of the United Nations, should not be included within the general provisions on refugees, but should receive the special attention due to them."

We return to the account of the travaux in Hathaway, The Law of Refugee Status (1991) at 207:

"The drafters of the Convention were mindful of the Arab pre-occupation that formal refugee status would imply mobility for Palestinian refugees, thus potentially undermining the repatriation of the Palestinian community. The concerns of the Arab community ironically coincided with a determination by some Western delegates to avert the prospect of claims to refugee status by Palestinians. The French representative, for example,

... considered that the problems in their case were completely different from those of the refugees in Europe, and could not see how Contracting States could bind themselves to a text under the terms of which their obligations would be extended to include a new, large group of refugees ....

Indeed, the American representative warned that the inclusion of Palestinians "would present Contracting States with an undefined problem, and so reduce the number of States in Europe that would find it possible to sign the Convention". Reflecting these concerns, delegates were faced with a draft which provided for the permanent exclusion from the Convention definition of "persons who are at present receiving from other organs or agencies of the United Nations protection or assistance". Realising that this clause would lead Palestinians completely without aid or protection if UNRWA were to cease operations, the Arab states secured their automatic "deferred inclusion" at such time as specialized relief operations in Palestine might come to an end. It is nonetheless clear from the drafting history that the shared intention of the Arab and Western states was to deny Palestinians access to the Convention-based regime so long as the United Nations continues to assist them in their own region."[emphasis added]

The operation of UNRWA is confined to Jordan, Syria, the Lebanon and the territories occupied by Israel. A Palestinian outside that area of operation is, therefore, ineligible to receive the protection or assistance of that agency: Goodwin-Gill, The Refugee in International Law 56-57; Plender, International Migration Law Revised 2d Ed. 439; Stebbing, UNRWA: An Instrument of Peace in the Middle East (1985) 8 Int.Rel. 270.

UNRWA's working definition of a Palestine refugee reads:

"A Palestine refugee is a person whose normal residence was Palestine for a minimum of two years preceding the conflict in 1948, and who, as a result of this conflict, lost both his home and his means of livelihood and took refuge in 1946 in one of the countries where UNRWA provides relief. Refugees within this definition and the direct descendants of such refugees are eligible for Agency assistance if they are: registered with UNRWA; living in the area of UNRWA operations; and in need."

Takkenberg, The Protection of Palestine Refugees in the Territories Occupied by Israel (1991) Volume 3 International Journal of Refugee Law 414, 419.

This definition has not received formal approval from the General Assembly. It is thought, however, that approval is tacit: Takkenberg, op. cit. 429 n 49.

Two further points need to be made. First, that UNRWA's mandate extends only to assisting Palestinian refugees, not to protecting them. Palestinians therefore have the unfortunate distinction of being the only group of refugees in the world who are excluded formally from any international protection: Hathaway, The Law of Refugee Status (1991) 209 n 119 citing Gervase Coles "Some Reflections on the Protection of Refugees from Armed Conflict Situations" (1984) 7 In Defence of the Alien 78, 105.

Secondly, under UNRWA eligibility criteria it is not necessary that a Palestinian show a "well-founded fear of persecution" in order to qualify for UNRWA assistance.

As mentioned, the 1951 Refugee Convention is not applicable to those Palestinian refugees who "are at present receiving" assistance from UNRWA. However, it is clear from UNRWA's working definition of a Palestinian refugee that not all Palestinians residing in the Occupied Territories are eligible for assistance by UNRWA. A "considerable number" have either never been eligible for UNRWA assistance, or are no longer eligible: Takkenberg, op. cit. 421. Palestinians who have never been eligible include those who originally fled into Egypt and only at a later stage established themselves in the Occupied Territories. Those who are no longer eligible for assistance include refugee women who have married non-refugees. In 1987 it was estimated that only forty-three percent of the total Palestinian population were registered with UNRWA, of which total seventeen percent lived in the West Bank: Jabr, Housing Conditions in the Refugee Camps of the West Bank (1989) Volume 2 Journal of Refugee Studies 75, 76-77. See also Ernst, Problems of UNRWA School Education and Vocational Training (1989) Volume 2 Journal of Refugee Studies 88. However, in a report prepared by the Secretary-General to the Security Council on 21 January 1988 the slightly higher estimate given was that about fifty-five percent of the Palestinian population were registered with UNRWA: Takkenberg, The Protection of Palestine Refugees in the Territories Occupied by Israel (1991) Volume 3 International Journal of Refugee Law 414, 424-425.

The submission of the appellant before us was that as a Palestinian outside the area of operation of UNRWA he was ipso facto entitled to recognition as a refugee under the Refugee Convention. His argument was supported by the tentative suggestion made by Grahl-Madsen in The Status of Refugees in International Law Volume 1 at 141 that the second paragraph of Article 1D can be interpreted in such a way as to confer on Palestinians automatically - i.e. without any further test - the benefits of the Convention as soon as they cease to receive assistance and/or protection from UNRWA. Our attention was also drawn to an abstract published in (1991) Volume 3 International Journal of Refugee Law 660 of an article in German published in Zeitschrift für Ausländerrecht und Ausländerpolitik Vol. 9(2) (1989) by Nicolaus, P. and Saramo, P. entitled "Zu den Voraussetzungen und der Anwendbarkeit des Artikels 1 Abschnitt D Absatz 2 der Genfer Flüchtlingskonvention". In English, the title of the article is "Meaning and Application of article 1 Section D paragraph 2 of the Convention Relating to the Status of Refugees". The abstract reports that the authors show that Palestinians who have lost the opportunity to return to the area of operation of UNRWA are entitled to recognition of their refugee status without an examination of the criteria in Article 1A(2) of the Convention. The authors appear to recognize that the interpretation for which they argue has not yet found favour in the administrative courts of the Federal Republic of Germany (as it then was) possibly because asylum law in that country is based on the right of asylum in the Constitution, not on the Convention. Unfortunately, neither the German text nor a translation thereof has been made available to us. As the abstract is extremely brief and states only the conclusions of a six-page article, the reasoning process is not revealed. In these circumstances we cannot give the article any weight, particularly in light of the acknowledged qualification that the interpretation argued for by the authors does not appear to have found approval in the administrative courts of the Federal Republic of Germany.

Surprisingly, the submission urged upon us is apparently a novel one. Neither counsel for the parties nor the UNHCR representative who attended the hearing (Mr H.M. Domzalski) were able to draw our attention to any reported case or practice in any Convention country establishing that simple presence of a Palestinian in a Convention country, without more, is sufficient to entitle that person to the benefits of the Convention.

In addressing this issue we believe that the principal point of reference must be the text of the Convention itself. The General Rule of interpretation according to Article 31(1) of the 1969 Vienna Convention on the Law of Treaties is that:

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."

Context includes text, preamble, annexes and related instruments (Article 31(2)). Together with context, account shall be taken of any subsequent agreement between the parties, practice in application of the treaty which establishes agreement of the parties, and relevant rules of international law (Article 31(3)).

As far as the preamble of the Refugee Convention is concerned, we recognize that it evidences a commitment to the protection of refugees but we find nothing there that is of specific assistance to the interpretation of Article 1D. We note further that there are no relevant annexes, related instruments, subsequent agreements between the parties, no practice in the application of Article 1D (a matter to which we have referred above) or relevant rules of international law.

Article 32 of the Vienna Convention on the Law of Treaties permits recourse to supplementary means of interpretation, including the preparatory work of the treaty, either to confirm the meaning derived from application of the General Rule, or to determine the meaning where that is ambiguous or would lead to manifestly absurd or unreasonable results.

As far as the preparatory work is concerned, we have already made mention of this and have taken into account the texts and articles referred to. We will return to the travaux préparatoires. We intend to deal first with the text of Article 1D itself.

The first point to note about Article 1D is that its application is limited to persons "who are at present receiving ... assistance" from an agency of the United Nations (in this context, UNRWA). As previously noted, UNRWA's working definition of a Palestine refugee is a narrow one and not all Palestinians residing in the Occupied Territories are either being assisted by UNRWA, or are eligible for such assistance. As pointed out by Takkenberg, op. cit. 421 a "considerable number" have either never been eligible, or are no longer eligible for UNRWA assistance. In our opinion, as "non-UNRWA Palestinians" are not included in Article 1D, they only qualify for recognition as refugees if they meet the refugee definition contained in Article 1A(2). For them there is no ipso facto entitlement to the benefits of the Convention as the words "these persons" in paragraph 2 of Article 1D plainly refer to the phrase "persons who are at present receiving ... assistance" in paragraph 1 of the Article.

That being so, we see little sense in an interpretation which confers on "UNRWA Palestinians" entitlement to the benefits of the Refugee Convention immediately upon arrival in a Convention country, but not upon "non-UNRWA Palestinians". The interpretation urged by the appellant would, however, lead to this result which is both manifestly absurd and unreasonable.

We note that in Robinson, Convention Relating to the Status of Refugees - Its History, Contents and Interpretation (1953) 64 the point is made that automatic assimilation of the groups covered by Article 1D to regular refugees is subject to two conditions which are cumulative in nature:

(a) If the special protection and assistance has ceased; and

(b) The position of these persons has not been definitively settled by a General Assembly resolution (for instance, assuming their integration in the countries of residence).

We agree with this interpretation.

It is now possible to address the meaning of the phrase which appears in the second paragraph of Article 1D, namely:

"When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly ....".

Was it intended that the cessation of assistance "for any reason" be taken to refer to:

1.   The situation where a Palestinian simply leaves the geographical area in which UNRWA operates; or

2.   Was it intended that these words have a more restricted meaning, namely the cessation of UNRWA operations; and

3.   In either case, was it intended that the cessation of assistance be also accompanied by the absence of a definitive settlement by a General Assembly resolution.

In our opinion, the text, particulary the cumulative nature of the conditions, requires the interpretation in (2) and (3) to be adopted. In terms of this paragraph in Article 1D a Palestinian in receipt of assistance from UNRWA who travels outside the area of operation of UNRWA (thereby becoming ineligible to receive the assistance of that agency) does not ipso facto become entitled to recognition as a refugee unless and until the second cumulative condition is satisfied, namely the absence of a definitive settlement by a General Assembly resolution. As no such definitive resolution has been adopted by the General Assembly, clearly the second of the cumulative requirements is satisfied.

It is in this context that we return then once more to the issue in question, namely the meaning to be given to the words "has ceased for any reason". In our opinion there are two possible interpretations. First, that the words "has ceased for any reason" apply to any situation in which a person in receipt of UNRWA assistance leaves the area in which UNRWA operates. This interpretation would emphasize the words "any reason". The second interpretation, however, would place emphasis on the word "ceased" in the phrase "when such protection or assistance has ceased for any reason". On this interpretation, if UNRWA continues to operate, the assistance it affords does not cease simply because a particular individual who was previously in receipt of such assistance is no longer in the area of operation. In other words, there is a clear distinction in the meaning of the phrases "at present receiving" and "has ceased". The one is not the antonym of the other.

We prefer the second interpretation for the following reasons:

(a) It avoids a manifestly absurd result. Otherwise, an individual who satisfies the UNRWA definition not only receives the benefit of UNRWA while residing in the area of operation, but also the moment he leaves that area and arrives in a Convention country he becomes ipso facto entitled to the benefits of the Refugee Convention. Such person is at no stage required to establish a "well-founded fear of persecution". On the other hand, a Palestinian who does not meet the UNRWA definition is not only without assistance while living in, say, the West Bank, but is also required upon arrival in a Convention country to establish a well-founded fear of persecution for a Convention reason.

(b) The interpretation we prefer is supported by Robinson in Convention Relating to the Status of Refugees - Its History, Contents and Interpretation (1953) 63. In his view the automatic assimilation in paragraph 2 of Article 1D only applies to persons who first fulfil the conditions prescribed for a person to be recognized as a Convention "refugee".

(c)  Although the issue is not specifically addressed in Goodwin-Gill's The Refugee in International Law (1983) 57, it is nevertheless implicit in his treatment of the subject that Palestinians outside UNRWA's area of operation only receive the benefit of the Convention if it can be shown that they meet the requirements of the inclusion clause in Article 1A(2):

"In addition, if Palestinians leave UNRWA's area of operation, they may well qualify independently as refugees within the Statute and the Convention." [emphasis added]

(d) The implicit justification of the wholesale inclusion of Palestinians under the Convention, whether Convention refugees or not, is that this would be consistent with a commitment to a truly universal protection system. See Hathaway, The Law of Refugee Status (1991) 209. But the Authority finds difficulty in understanding how this can be justified on the language of Article 1D itself. Furthermore, if the purpose of both paragraphs in Article 1D was to achieve the wholesale inclusion of all Palestinians per se, it is strange that the Article specifically avoids this result by restricting its application to only those persons "at present receiving" UNRWA assistance, i.e. to "UNRWA Palestinians". Furthermore, it is significant that this interpretation has not found universal acceptance.

The conclusion that we have come to on the facts of the present case is that the first paragraph of Article 1D imposes an interim suspension of eligibility for refugee status when the particular individual is within a certain geographic area and is "at present" receiving from an agency of the United Nations (i.e. UNRWA) protection or assistance. In short, the first paragraph is premised upon the present functioning of UNRWA, the location of the individual within the specific geographic area of operation and the fulfilment of UNRWA eligibility criteria and the receipt of assistance from UNRWA.

The second paragraph, on the other hand, addresses the more fundamental issue of UNRWA-Palestinians once the assistance provided by UNRWA to such persons has ceased for any reason. The location of an UNRWA-Palestinian outside the geographical area of operation of UNRWA does not of itself bring about the cessation of that assistance, but only the temporary suspension of that assistance. Upon return to the area of operation of UNRWA assistance resumes. In other words, the paragraph addresses the situation where UNRWA ceases to operate at all. This interpretation is reinforced by the words "... without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations". In our opinion, herein lies the significance of the passages cited earlier from Hathaway op. cit. 206-207 which note the strongly held view of Arab states that because the plight of Palestinian refugees was the consequence of the establishment of Israel by the United Nations itself, the UN should bear a more direct and obvious responsibility for their well- being. The apparent intention was that if for any reason UNRWA's operation ceased (e.g. for lack of finance) the suspensive effect of Article 1D would terminate and entitlement to the benefits of the Refugee Convention would then come into operation:

"Reflecting these concerns, delegates were faced with a draft which provided for the permanent exclusion from the Convention definition of "persons who are at present receiving from other organs or agencies of the United Nations protection or assistance". Realising that this clause would lead Palestinians completely without aid or protection if UNRWA were to cease operations, the Arab states secured their automatic "deferred inclusion" at such time as specialized relief operations in Palestine might come to an end. It is nonetheless clear from the drafting history that the shared intention of the Arab and Western states was to deny Palestinians access to the Convention-based regime so long as the United Nations continues to assist them in their own region." [emphasis added]

Hathaway op. cit. 207-208

During the course of argument before us, brief mention was made of the fact that it is not entirely clear what is meant by the phrase in the second paragraph of Article 1D "entitled to the benefits of this Convention". Is the word "benefits" to be construed broadly so as to include the entire Convention (including the Inclusion Clause definition in Article 1A(2)), or is it to be construed narrowly so as to exempt UNRWA Palestinians from having to establish a "well-founded fear of persecution". If the latter, are such persons also to be excluded from the Cessation Clause in Article 1C and the Exclusion Clause in Article 1F; for neither of these two articles could be said to be a "benefit" of the Convention. Furthermore, are such refugees to be exempted from the "obligation" provisions of the Convention such as Article 2 (obligation to conform to the laws and regulations of the country in which a refugee finds himself); Article 32 (expulsion can be justified on the grounds of national security or public order) and Article 33 paragraph 2 (the obligation of non-refoulement cannot be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country).

In our view a narrow interpretation such as this would once again lead to manifestly absurd or unreasonable results and we therefore find that the phrase "the benefits of the Convention" refers to the Convention as a whole and includes each and every one of the articles of the Convention, including Article 1A(2). In the situation envisaged by the second paragraph of Article 1D, therefore, UNRWA Palestinians must qualify for refugee status in the usual way by satisfying the Convention refugee definition.

We turn finally to the UNHCR Handbook and in particular paragraph 143. The relevant part of the paragraph provides:

"Thus, a refugee from Palestine who finds himself outside that area [of UNRWA's operation] does not enjoy the assistance mentioned and may be considered for determination of his refugee status under the criteria of the 1951 Convention. It should normally be sufficient to establish that the circumstances which originally made him qualify for protection or assistance from UNRWA still persist and that he has neither ceased to be a refugee under one of the cessation clauses nor is excluded from the application of the Convention under one of the exclusion clauses."

It was suggested at the hearing that this paragraph justified a conclusion that a Palestinian outside of UNRWA's area of operation should normally, without more, be recognized as a refugee. The Authority notes that the sentence relied upon for this argument provides equivocal support only for this proposition and the preceding sentence in fact negates the argument. In addition, the Handbook overlooks the fact that there are both UNRWA Palestinians and non-UNRWA Palestinians.

The first sentence quoted clearly requires an individual outside of UNRWA's area of operation to establish eligibility under the Convention in the normal way. The second sentence, however, is problematical. It begins with the equivocal "It should normally be sufficient ..." [emphasis added]. Secondly, if this sentence is read in the way urged upon us by the appellant, it surely contradicts the sentence which immediately precedes it.

The Authority is of the view therefore that it is the first sentence only from the above quote which is a correct statement of the law if it be assumed that the individual in question is an UNRWA Palestinian. For non-UNRWA Palestinians eligibility under the Convention is not dependant upon location outside the area of UNRWA operations.

It is now necessary to apply to the facts of the present case the law as we have found it to be. Surprisingly, there is absolutely no evidence at all as to whether the appellant would come under UNRWA's mandate were he to return to the Occupied Territories. We are therefore obliged to consider his position assuming first that he would be eligible for UNRWA assistance and, secondly, that he would not.

Assuming first that the appellant would be eligible for UNRWA assistance, it is true that his presence in New Zealand means that he is not "at present" receiving such assistance in terms of the first paragraph of Article 1D. However, he is not ipso facto entitled to the benefits of the Refugee Convention because assistance from UNRWA has not "ceased". It is simply presently unavailable to him and will resume upon the appellant's return to UNRWA's area of operation. It is simply in temporary suspension. He must accordingly satisfy the criteria of the Convention as defined in Article 1A(2).

Assuming secondly that the appellant would not be eligible for UNRWA assistance, it would follow that Article 1D is of no application to his case and therefore irrelevant. To receive the benefits of the Refugee Convention he will have to establish in the normal way under Article 1A(2) a well-founded fear of persecution for a Convention reason.

Either way, therefore, our conclusion is the same.

CONCLUSIONS AS TO ARTICLE 1D

The conclusions reached by the Authority are therefore that the following answers are to be given to issues 8, 9 and 10:

8.   Is the appellant a person who is at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, protection or assistance?

Answer: No.

9.   Has such protection or assistance ceased for any reason, without the position of the appellant being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations?

Answer: No.

10. Is the appellant ipso facto entitled to the benefits of the Refugee Convention?

Answer: No.

The net effect is that we find that the appellant is not excluded from the Convention by Article 1D but that it is necessary for him to qualify independently as a refugee in terms of Article 1A(2) of the Refugee Convention.

We now intend to address the criteria stipulated in Article 1A(2).

INCLUSION UNDER THE CONVENTION: ARTICLE 1A(2)

Paragraph 2 of Article 1A recognizes that those who have a well-founded fear of persecution for a Convention reason potentially fall into three categories:

(a) Those who have single nationality.

(b) Those who have more than one nationality.

(c)  Those who have no nationality at all (i.e. those who are stateless).

Persons in each of the three categories must satisfy the common requirement of a well- founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Thereafter the requirements vary:

(a) A person who possesses nationality must be outside the country of nationality and be unable, or owing to the well-founded fear of persecution, be unwilling to avail himself of the protection of that country.

(b) In the case of a person who has more than one nationality, such person is required, in effect, to first avail himself of the protection of each one of the countries of which he is a national unless in relation to any one or more of such countries he can establish a well-founded fear of persecution.

(c)  A person who has no nationality must be outside the country "of his former habitual residence" and must be unable or, owing to the well-founded fear, be unwilling to return to it.

As to which particular limb applies to the appellant, certain factual findings are required. This will be addressed under the next heading.

IS THE APPELLANT A STATELESS PERSON?

The appellant in his written statement gave his date of birth as 15 May 1965 though in his oral evidence he stated that the date was 15 May 1967. Either way, his date of birth preceded the Six-Day War which commenced on 5 June 1967. It was in the course of this war that Israeli forces occupied East Jerusalem.

Had the appellant been born in West Jerusalem he would have the status of an Israeli citizen: Gouldman, Israel Nationality Law (1970) 12-17, 67-81; Al-Haj, The Attitudes of the Palestinian Arab Citizens in Israel Towards Soviet Jewish Immigration (1991) 3 International Journal of Refugee Law 243, 246.

As, however, the appellant was born in East Jerusalem, it might be thought that he had Jordanian citizenship: Gouldman, Israel Nationality Law (1970) 69:

"In 1949 the Hashemite Kingdom of Jordan, following its seizure of the territory known as the West Bank of the Jordan (Judea and Samaria), amended the Trans-Jordan Nationality Law of 1st May 1928 and provided that "all the inhabitants or residents of the Jordan and the Western Part, which is ruled by the Jordanian Government, and who carried the Palestine Nationality, are considered as Jordanians and are entitled to all the benefits as well as the duties and obligations of the Transjordanians". Further, under Article 3(3) of the Jordanian Nationality Law of 4th February 1954, a person became a Jordanian national if, "not being Jewish, he possessed Palestine nationality before 15th May 1948 and at the date of publication of this Law was ordinarily resident in the Hashemite Kingdom of Jordan"."

See also Sayigh, The Politics of Palestinian Exile (1987) 9 Third World Quarterly, 28. The West Bank (including East Jerusalem) was formally annexed by Jordan in April 1950 and over the following 17 years the administration in Amman worked assiduously to integrate it with the (also mainly Palestinian-populated) East Bank area of Jordan proper: Prince, The International Legal Implications of the November 1988 Palestinian Declaration of Statehood (1988) 25 Stanford Journal of International Law 681, 682; Foster, A Promised Land (1991) New Law Journal 702, 704.

In July 1988 Jordan's King Hussein relinquished Jordanian claims to the West Bank and while no clear consensus has emerged about the legal effect of that declaration, it has been regarded by one commentator as politically conclusive: Foster, A Promised Land (1991) New Law Journal 704; see also Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457, 465.

At the hearing of the appeal on 23 and 28 January 1992 the Authority was given very little information on the nationality issue and directed the Immigration Service, in co- operation with the solicitors for the appellant, to make enquiries of the Jordanian, Israeli and Moroccan authorities. As a result of those enquiries we have been told that a person in the appellant's position appears to be eligible to hold a Jordanian passport. The rationale offered is that the Jordanians encourage Palestinians to acquire Jordanian passports because it helps to promote "their claim to the West Bank". It is not clear whether this is a reference to Jordanian claims or those of Palestinians. If the former, it does not square with the July 1988 declaration by King Hussein that to help liberate the occupied Palestinian land he had severed Jordan's administrative and legal ties with the West Bank.

From the Israeli side it would seem that they have chosen both to contest Jordan's sovereignty over the West Bank whilst recognizing the inhabitants as Jordanian citizens. In the opinion of McDowall, The Palestinians (Minority Rights Group, 1987) 20 Israel has thereby reduced the legal status of Palestinians to that of resident aliens with fewer rights both in theory and in practice than Jewish settlers. This theme is developed further by Cashdan, "Colonial Law and Ideology - Israel and the Occupied Territories" in Khamsin ed, Palestine: Profile of an Occupation (1989) 57, 66.

However, it is important to understand that on the facts of the present case it is neither appropriate nor possible for the authority to make a definitive determination as to the appellant's nationality. There are two fundamental reasons, each of equal importance:

(a) Article 1 of the International Convention on Certain Questions Relating to the Conflict of Nationality Laws, adopted at The Hague on April 12, 1930 provides that"it is for each State to determine under its own law who are its nationals". Article 2 provides, further, that "any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that State": Grahl-Madsen, The Status of Refugees in International Law Volume 1 155; Radley, The Palestinian Refugees: The Right to Return in International Law (1978) 72 American Journal of International Law 586, 613; Brownlie, Principles of Public International Law (4th Ed., 1990) 381-384.

In Grahl-Madsen's opinion these provisions may be considered a codification of generally accepted rules of international law and the rules are, in principle at least, applicable also when it comes to the determination of the national status of an applicant for recognition as a refugee. He recognizes, however, that it is hardly feasible to apply to the authorities of the country where the individual fears persecution in order to have his national status authentically determined. The authorities of the country of refuge must therefore reach their decision by other means. If the national status of a candidate for refugeehood is indeterminable, it would be best in keeping with the Convention, as well as with the humanitarian spirit underlying the instrument, to give the applicant the benefit of the doubt. This will mean in some cases considering him a national of his country of origin (the country where he fears persecution) but should it, for some reason, be more favourable for a person of indeterminable national status to be considered a stateless person, he should be considered as such: Grahl-Madsen op. cit. 156-157.

(b) The further reason is that whatever determination of nationality is made by this Authority, it will unsurprisingly carry no weight at all in the country of attributed nationality and there is a high degree of likelihood of the determination being wrong rather than right, given the paucity of evidence and the Authority's lack of access to the relevant law of the imputed country of origin and the necessary expertise to interpret and apply that law.

It is appropriate to bear in mind the warnings given by Foster in A Promised Land (1991) New Law Journal 702 (albeit in a slightly different context) that the literature dealing with the question of the title to the Occupied Territories is "immense and inaccessible and highly speculative", a point underlined by the following quote which, although addressing the question whether it could be argued that the West Bank belongs to the United Nations, nonetheless contains a warning of more general application:

"These are deep jurisprudential waters, hard to chart in themselves, and with the particular danger of having to steer round the upturned hulls of abandoned professorial ships and through a mess of academic flotsam."

We address now the question of what will best facilitate the appellant's claim to refugee status. Should he be considered a national of the country in which he fears persecution; or should he be considered a stateless person. We conclude that the latter is the most favourable view of the facts for the simple reason that if the appellant is in fact a Jordanian national, he is not in fear of the Jordanian authorities and his claim to refugee status would be defeated for that reason alone. If, on the other hand, we attribute for these purposes Israeli citizenship to the appellant, that likewise would be to his disadvantage because he would then stand in a wholly different position to those Palestinians living in the Occupied Territories: see Al-Haj, The Attitudes of the Palestinian Arab Citizens in Israel Towards Soviet Jewish Immigration (1991) 3 International Journal of Refugee Law 243, 246-248. Although their political and economic position has not escaped criticism, it could at least be argued that Palestinians of Israeli citizenship are better off than those Palestinians living in the Occupied Territories.

We accordingly treat the appellant as a stateless person.

This course has the added virtue of being the one urged upon us by his counsel. See paragraph 4.2(i) of the Submissions of Counsel for Appellant In Support of Appeal:

"That he, being a Palestinian from one of the occupied territories of Israel, is a stateless person without nationality who is outside the country of his former habitual residence and is unabel to return to it because of a well-founded fear of persecution."

See also paragraph 5.1.

A brief examination of statelessness is required.

STATELESSNESS

The 1954 Convention Relating to the Status of Stateless Persons defines the term "stateless person" in Article 1 as follows:

"For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law."

While New Zealand is not a party to the 1954 Convention Relating to the Status of Stateless Persons we nevertheless intend to adopt this definition for the purpose of the present case.

Presumably, the stateless status of Palestinians who do not enjoy Israeli or Jordanian citizenship arises from the fact that there is no Palestinian state: Gouldman, Israel Nationality Law (1970) 12-18, 67-68; Prince, The International Legal Implications of the November 1988 Palestinian Declaration of Statehood (1988) 25 Stanford Journal of International Law 681, 698-700, 708:

"Despite the November 1988 Palestinian Declaration of Statehood, there are still many unresolved and crucial issues that need to be worked out before Palestinian statehood becomes a realistic proposition. These problems include the definition of mutually acceptable borders, explicit recognition by and of Israel, a negotiated withdrawal of Israeli forces from the occupied territories and an elucidation of the relationship between contradictory Palestinian statements and "constitutional" documents."

Turning now to the relationship between the appellant's stateless status and his application for refugee status, we emphasize that there is no correlation, either positive or negative, between refugeehood and statelessness. This opinion appears to be held universally: "Not all stateless people are refugees, nor are all refugees technically stateless ... Statelessness is not the essential quality of a refugee, though many refugees are in fact stateless people.": see Grahl-Madsen, The Status of Refugees in International Law Volume 1 p.77; Radley, The Palestinian Refugees: The Right to Return in International Law (1978) 72 American Journal of International Law 586, 609; Goodwin- Gill, The Refugee in International Law 26; Handbook on Procedure and Criteria for Determining Refugee Status para 102 and finally, Hathaway, The Law of Refugee Status 61:

"It is thus clear that statelessness per se does not give rise to a claim to refugee status."

But there is, of course, the entirely different question whether the "nationality" ground of persecution in Article 1A(2) includes statelessness. An affirmative answer is given by Grahl-Madsen in The Status of Refugees in International Law Volume 1 219:

"Persecution for "reasons of nationality" is also understood to include persecution for lack of nationality, that is: persecution of stateless persons."

This passage is cited with approval in Hathaway, The Law of Refugee Status 144. Grahl- Madsen's interpretation is also supported by Wydrzynski, Canadian Immigration Law and Procedure (1983) 327:

"In fact, it may be that the notion of "nationality" refers not only to citizenship, but may also include such elements as ethnic origins, race, language or even the absence of nationality (i.e., statelessness)."

The Handbook on Procedures and Criteria for Determining Refugee Status is silent on the point. See para 74-76.

The Authority adopts and applies the Grahl-Madsen and Hathaway opinions cited above.

The next element to consider is whether the appellant is outside the country "of his former habitual residence".

COUNTRY OF FORMER HABITUAL RESIDENCE

The logic to "country of former habitual residence" is explained in Stenberg, Non- expulsion and Non-refoulement (1989) 77 in the following terms:

"A stateless person does not normally enjoy the possibility of protection in the above mentioned sense by any State, since such protection is a corollary to the possession of a nationality. Inability and unwillingness to enjoy the protection of a certain State cannot, therefore, be made a criterion for refugee status in the case of a stateless person. It has been necessary to institute a subsidiary rule, according to which a stateless person is to be considered as a refugee if he is outside his country of former habitual residence and unable or unwilling, on account of well- founded fear of persecution, to return to that country."

According to the preparatory work of the 1951 Convention the country of former habitual residence is "the country in which he had resided and where he had suffered or fears he would suffer persecution if he returned": Grahl-Madsen, The Status of Refugees in International Law Volume 1 160; Handbook on Procedures and Criteria for Determining Refugee Status para 103; Stenberg, Non-expulsion and Non-refoulement 78.

What then is the position when a stateless person has more than one country of former habitual residence. Stenberg's interpretation of the Handbook leads him to the following conclusion (p.78):

"The fact that a stateless person lacks the possibility of diplomatic protection also leads to the conclusion that a stateless person who has more than one country of former habitual residence, and who is unwilling to return to one of them on account of well-founded fear of persecution, does not have to satisfy the criteria for refugee status in relation to all the others in order to be regarded as a refugee. Satisfaction in relation to one country of former habitual residence is in principle sufficient for the establishment of refugee status."

On this view, while both Morocco and Palestine could be said to be the appellant's country of former habitual residence, the appellant would only have to satisfy the criteria for refugee status in relation to Palestine in order to establish refugee status.

However, Grahl-Madsen in The Status of Refugees in International Law Volume 1 at 160-161 expresses a different view. In his opinion, as a rule a person will only have one country of former habitual residence, but one cannot fully rule out the possibility that a person may have divided his time and his interests so evenly between countries that both of them have to be reckoned as his countries of former habitual residence:

"In such a case it seems fair to apply the second sub-paragraph of Article 1A(2) mutatis mutandis, or in other words to require that the person concerned shows well-founded fear of being persecuted in both of them in order to qualify as a refugee.

It would seem to be best in keeping with the intention of the drafters if in the greatest possible number of cases application of the term "country of former habitual residence" would lead to the same practical result as application of the term "country of nationality"."

We will return to this issue shortly, but before doing so it is to be noted that Grahl- Madsen in The Status of Refugees in International Law Volume 1 at 162 accepts that the country from which a stateless person had to flee in the first instance remains the "country of his former habitual residence" throughout his life as a refugee, irrespective of any subsequent changes of factual residence. See further Robinson, Convention Relating to the Status of Refugees - Its History, Contents and Interpretation (1953) 51-52. On this interpretation it follows that East Jerusalem on the West Bank, whether known as Palestine, Jordan or any other name is one of the appellant's countries of former habitual residence. It is this interpretation which we propose adopting for the purpose of the present case, being the interpretation most in favour of the appellant. That being so, it is not necessary at present to consider the interesting issues which have arisen in English jurisprudence as to the meaning of "habitual residence". See, for example, Cruse v Chittum (formerly Cruse) [1974] 2 All ER 940 (Fam D); Hall, Cruse v Chittum: Habitual Residence Judicially Explored (1975) 24 International and Comparative Law Quarterly 1; 8 Halsbury's Laws of England 4th ed. paras 445 and 446; Pask, "The Movement and Legal Protection of Unaccompanied Refugees and Displaced Children" in Adelman & Lanphier (eds) Refuge or Asylum? A Choice for Canada (1990) 43, 54.

The outstanding issue, however, is whether there is an obligation on the appellant, similar to that imposed on persons with more than one nationality, to show that he has a well- founded fear of being persecuted in both Palestine as well as Morocco in order to qualify as a "refugee".

The answer given in Hathaway, The Law of Refugee Status 62 is an affirmative "Yes":

"The country from which flight first occurred is often the state to which the refugee claimant retains the greatest formal legal ties, simply because subsequent states of residence which admitted her on the basis of her fear of persecution may not have granted her an unconditional right to return. On the other hand, the refugee claimant may have as strong or stronger formal ties to some other country or countries, in which case the claim to need protection should be assessed in relation to any and all countries to which she is formally returnable. This position respects the need for symmetrical treatment of persons with and without nationality, since in the case of the former group the Convention requires proof of lack of protection in all states of nationality.

Conversely, where the stateless refugee claimant has no right to return to her country of first persecution or to any other state, she cannot qualify as a refugee because she is not at risk of return to persecution. Assessment of the claimant's fear of returning to the country of first persecution is a non-sensical exercise, as she could not be sent back there in any event. Thus, when it is determined that the claimant does not have a right to return to any state, and does not therefore have a country of "former habitual residence", her needs should be addressed within the context of the conventional regime for stateless persons rather than under refugee law."

If this argument is to be applied to the present facts, the question is whether the appellant has a right to return to Israel/Palestine, Jordan or Morocco. If he cannot be returned to any of these three countries, he cannot qualify as a refugee because he is not at risk of persecution. In other words, without a right to return to any state the appellant, as a stateless person, cannot be refouled to a country of persecution.

Again, on this argument, his position would not be improved if it transpires that he does have a right of return to Morocco. He is not in fear of persecution in that country and would therefore be able to find effective protection there. The same observations and conclusion apply in relation to Jordan.

Turning specifically to the question whether the appellant has a right of return, or will be accepted in Israel/Palestine, Jordan or Morocco, the Authority notes the paucity of evidence. In this situation real effect must be given to the benefit of the doubt principle with the result that the case falls to be decided on the assumption that the appellant does indeed have a right to return to Israel/Palestine, or at the very least, can be refouled to that country; and upon the further assumption that he has no such right in relation to Jordan and Morocco and cannot be refouled to either country. In this context it will be further assumed in his favour that upon his return to Israel/Palestine he will not be eligible for UNRWA assistance with the result that the suspensive effect of Article 1D will not come into operation.

In view of the course we propose to adopt, neither the Cessation Clause in Article 1C nor the Exclusion Clause in Article 1E have application.

CONCLUSIONS AS TO STATELESS STATUS AND COUNTRY OF FORMER HABITUAL RESIDENCE

The conclusions reached by the Authority are therefore that the following answers are to be given to issues 5, 6 and 7:

5.   Does the appellant have a nationality?

Answer: No.

6.   If not, is he outside the country of his former habitual residence?

Answer: Yes.

7.   Is he unable, or owing to the well-founded fear, unwilling to return to it?

This issue will be addressed in the context of issues 1 to 4.

A WELL-FOUNDED FEAR OF PERSECUTION AS REGARDS ISRAEL AND THE OCCUPIED TERRITORIES

Addressing first the subjective element of the definition, we assume in the appellant's favour that he is in genuine fear. This is a corollary of our alternative ground for decision, a ground which gives to the appellant the benefit of the doubt on the credibility issue.

However, the well-foundedness of his fear needs to be examined and assessed according to an objective basis.

It is to be recalled that the appellant's fear is two-fold:

(a) He is afraid of other Palestinians who could mistake him for an Israeli and regard him as an Israeli spy. This would be due to the fact that he would be a stranger in their midst, having been absent from Palestine for a very substantial period of time and also because he now speaks Arabic with a Moroccan accent. He fears that he will be killed.

(b) He also fears death at the hands of the Israelis as it is his belief that they arrest, torture and kill Arabs, particularly young Arab men. As he does not know where his parents live he will not be able to obtain any assistance whatsoever as to his identity or background. The submission made on his behalf at the hearing on 1 April 1992 is that all Palestinians in the Occupied Territories are persecuted by Israel.

We intend to address each element separately.

FEAR OF PERSECUTION BY PALESTINIANS

The killing of Palestinians by fellow Palestinians is well documented, although there is not always agreement on the figures. The Authority is of the view that the motive of the killings must be the primary focus. Various descriptions of motivation can be found:

(a) Time Magazine, December 11, 1989 p.38 reporting the commencement of the third year of the intifada, commented:

"At least 140 Palestinians have been shot, beaten, stabbed or hacked to death by fellow Arabs. Most of the victims were charged with collaborating with the occupation.

The Palestinians most hated by their neighbours are those who brandish Israeli- provided weapons ... Intifadeh leaders have made such blatant collaboration a capital offense. Other victims are accused of offending Islamic factions by trafficking in drugs and sex. And some are the victims of personal vendettas or tribal rivalries: the label of collaborator provides a convenient cover for settling scores."

(b) The Lawyers Committee for Human Rights Critique (Review of the Department of State's Country Reports on Human Rights Practices for 1989) at 120 comments:

"The State Department notes correctly that in 1989 there was a "significant increase" in the use of force by Palestinians against other Palestinians, including the killing of 128 people and the injury of many more. While the report acknowledges that "[m]any of the victims were working with Israeli security authorities", it refrains from assessing two controversial issues relating to the killing of so-called "collaborators". First, it repeats without comment a view much-publicized by some Israeli officials: "Israelis state that a number of the victims of intra-Palestinian violence have been killed for seeking to express moderate views". The State Department does not say whether it finds this contention supportable by the facts. Second, the report states that "Palestinians claim that some of [the victims] were armed and provided information leading to arrests of uprising activists". The report should have noted that, by their own admission, Israeli military and security forces have supplied weapons to some Palestinians, and rely on them to provide intelligence and to identify suspects wanted for arrest. The Israeli practice of recruiting and arming certain Palestinians to carry out security force activities in the West Bank and Gaza Strip is a contributing factor in the escalation of violence. It should have been noted in the report, rather than described by the State Department as a "claim" by Palestinians, which implies that confirmed facts are mere allegations."

(c)  This admonition appears t have been acknowledged in the 1990 State Department Country Reports on Human Rights Practices for 1990 published in February 1991. It notes the following at p.1478-1479:

"The year 1990 witnessed a significant increase in violence by Palestinians against Palestinians, including 165 murders that appear to have been politically motivated. This number is greater than the 130 Palestinians killed in 1990 by Israeli security forces and civilians ...

During 1990 165 Palestinians were killed by other Palestinians (compared to 128 in 1989). Many others were wounded, and there were frequent threats and acts of intimidation by Palestinians against fellow-Palestinians. These included Palestinians killed because of alleged "collaboration" with Israel, interfactional political disputes and private feuds, and some for alleged crimes against public morality. Some of the victims were village officials and Arab policemen. Israeli authorities allege that many of these attacks and acts of intimidation were carried out under the direction of the covert leadership of the uprising. Others were by individuals or gangs operating autonomously, though these acts were often accompanied by claims of pro-Palestinian political motivations. Charges of so-called collaboration have been made (and murders subsequently committed) carelessly and for trivial reasons, deliberately, and at times to settle personal scores. On several occasions during 1990, Palestinian leaders called for a halt to unauthorized executions and other such actions.

...

... However, much intra-Palestinian violence goes unpunished because of the problems of law enforcement in the territories, particularly the refusal of many Palestinians to co- operate in any way with Israeli investigations."

(p.1478-1479)

(d) The Lawyers Committee for Human Rights in their Critique on the 1990 Department of State report comment at p.139:

"The report gives prominence to the killing of 165 Palestinians by other Palestinians during 1990, compared to 128 in 1989. Its discussion on this subject is generally an improvement on that of the previous year, noting the different apparent motives for the killings. However, it remains incomplete, as in previous years, because of its failure to note that a contributory factor in that part of intra-Palestinian violence directed against alleged collaborators has been the policy of the Israeli military of supplying weapons to Palestinians who carry out security force activity in the territories."

(e) Time Magazine, July 23, 1990 at p.28 records:

"Of the 947 Palestinians killed so far during the uprising at least 230 have been shot, beaten, stabbed or hacked to death by fellow Palestinians. Collaboration is not the only capital offense. Some victims have offended Islamic factions by trafficking in drugs and sex. Others were killed in personal vendettas."

(f)   Curtis in International Law and the Territories (1991) 32 Harvard International Law Journal 457, 469-470 states that murders of Palestinians by fellow Palestinians numbered over 400 as of June 1991. It is not clear whether this is a cumulative total since the beginning of the intifada or the figure for the first six months of 1991. Given the reported figures for 1989 and 1990, it is probably the former.

The conclusions drawn from these sources by the Authority are as follows: the number of Palestinians killed by other Palestinians is small, but apparently rising. Palestinians suspected of collaboration with the Israeli authorities are particularly at risk. Most victims in this category are apparently identifiable by their active co-operation with Israeli military and security forces.

As to the facts of the appellant's case, it is to be remembered that he has not been in Palestine since 1978, a period of some 14 years, and he has absolutely no history of activity which might be interpreted as "collaboration". There is nothing more than a very remote if not fanciful possibility of his being attacked by fellow Palestinians due to suspicions engendered by his accent and absence from the country. There is therefore no real chance of persecution in terms of the test adopted by this Authority in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) p.7. An applicant is required to produce some positive credible evidence, not simply reasoning in the abstract that there is a real chance of persecution: see Canada (Minister of Employment & Immigration) v. Letshou-Olembo (1990) 73 DLR (4th) 560, 567 (Federal Court of Appeal). Although the dividing line between conjecture and inference is often a very difficult one to draw, the exercise must be attempted. We adopt what we said on this topic in Refugee Appeal No. 29/91 Re SK (17 February 1992) at p.21:

"In distinguishing between conjecture and inference helpful reference can be made to the following quote from Jones v. Great Western Railway Co (1930) 47 TLR 39, 45 (HL) where Lord MacMillan stated:

"The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof."

The reference to "legal proof" is, of course, inappropriate in the context of a refugee determination process but the sense of the distinction between conjecture and inference is nonetheless tolerably clear."

On the facts we find that the appellant's fears are based on no more than conjecture.

It is accordingly our assessment that as far as the objective element of the refugee definition is concerned, the appellant's fear is not well-founded and there is no real chance that persecution at the hands of other Palestinians will occur should the appellant return to the Occupied Territories.

By way of conclusion we note that the appellant has not based his case on a fear of being a victim of a personal vendetta or tribal rivalry or on the commission of an alleged crime against public morality as measured in Islamic terms. We are therefore not called upon to consider these issues. In any event, it is difficult to see how any of these factors, without more, are relevant in the context of the Convention definition.

We turn therefore to the appellant's fear of persecution from the Israeli authorities.

FEAR OF PERSECUTION BY ISRAELIS

As mentioned, the appellant articulated his fear of persecution at the hands of the Israeli authorities in somewhat general terms, and we intend to address that aspect of the claim shortly.

In submissions, however, the more specific claim made by the appellant was that the fear of persecution is based on nationality. See paragraph 5.8 of the opening submissions. It was argued that if it is accepted that the appellant is a Palestinian, then "it must be concluded that he is a person who has been dispossessed, deprived of formal nationality". Cited in support of this proposition is a passage taken from Hathaway, The Law of Refugee Status 144:

"Second, persons who are denied full citizenship in their own state (such as Palestinians in Israel) could qualify as nationally defined refugees insofar as their inferior political status can be shown to put them at risk of persecution."

The Authority notes, however, that this statement is undeveloped in the surrounding text and there are no footnote citations to justify or support the proposition. It is possible that the limitation "could qualify" is intended to signal that this is a proposition which has yet to be tested and developed.

Therefore, taken on its own, this single sentence is of limited assistance and while considerable weight is to be given to Hathaway's opinion, the matter must ultimately be measured against established facts.

Our analysis of Hathaway's sentence is that it proceeds upon the premise that Israel is somehow occupying a "Palestinian State". This incorrectly assumes that a State of Palestine existed in 1947 and may possibly also confuse the United Nations partition plan for Palestine in 1947 with the boundaries as they were eventually drawn by the 1949 Armistice. It is estimated that the United Nations Partition would have awarded 54% of the land area to the proposed Jewish state. This proved unacceptable to Palestinians and the neighbouring Arab states but by the time of the Armistice, Israel controlled 73% of Palestine: McDowall, The Palestinians (1987) Minority Rights Group 9-10. The Authority therefore cannot accept that Israel denies Palestinians citizenship in "their own state", particularly when there is clear evidence that those Palestinians who remained in Israel after 1948 have been granted the status of Israeli citizens: Gouldman, Israel Nationality Law (1970) 12-17, 67-81; Al-Haj, The Attitudes of the Palestinian Arab Citizens in Israel Towards Soviet Jewish Immigration (1991) 3 International Journal of Refugee Law 243, 246.

If, on the other hand, the sentence from Hathaway's text refers to the present Israeli occupation of the West Bank and Gaza Strip (the Occupied Territories), no apparent recognition has been given to the legal status of that occupation. Although opinions differ, there is a large measure of agreement that Israel's occupation of the Occupied Territories is based upon the laws of war: see Falk & Western, The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defence of the Intifada (1991) 32 Harvard International Law Journal 129, 138; Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457, 464; Roberts, The Palestinians, The Uprising, and International Law (1989) 2 Journal of Refugee Studies 26, 28-31; McDowall, The Palestinians p.18; Playfair, Administrative Detention in the Israeli-occupied West Bank (1985) The Review No. 35, 31 (International Commission of Jurists); Paust, von Glahn, Woratsch, Enquiry into the Israeli Military Court System in the Occupied West Bank and Gaza (1989) 12-13 (International Commission of Jurists); Takkenberg, The Protection of Palestine Refugees in the Territories Occupied by Israel (1991) Volume 3 International Journal of Refugee Law 414, 421. In most, if not all of these citations, the actions of the Israeli occupying forces are measured against the Fourth Geneva Convention, i.e. the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, the text of which is set out in the Fourth Schedule to the Geneva Conventions Act 1958.

Prior to 1967, the West Bank was occupied by Jordan. The sovereign power displaced in the West Bank was therefore not the State of Palestine, but rather Jordan. There is no credible claim to the existence of an independent Palestinian state at international law. See Prince, The International Legal Implications of the November 1988 Palestinian Declaration of Statehood (1988) 25 Stanford Journal of International Law 681 and useful reference should also be made to Brownlie, Principles of Public International Law 4th Ed. (1990) 107-126 and in particular 115.

With the exception of Israeli citizens, the law applied to Palestinians in the Occupied Territories rests on:

"... Ottoman law, British occupation and mandate law, Jordanian law, Egyptian administrative orders (Gaza) and military orders of the Israeli occupation."

McDowall, The Palestinians p.18

The following summary is taken from Foster, A Promised Land (1991) New Law Journal 702, 703:

"Israel did not and has not annexed the West Bank. The West Bank is under Israeli military administration. Jordanian law is the basis. Israeli emergency regulations are superimposed on it. Israeli military courts have jurisdiction in matters relating to those regulations. There is a right of appeal from these military courts to the Supreme Court of Israel."

We have already referred to McDowall's statement at p.20 of the text that the Israelis recognize West Bank inhabitants as Jordanian citizens and see Gouldman, Israel Nationality Law (1970) 68-69.

On the information in our possession we conclude that the Israelis do not deny Palestinians "full citizenship in their own state" (meaning in the context of the present case, the West Bank). Such "denial" as there may be is the product of:

(a) The fact that there is no sovereign Palestinian State

(b) The fact that the Israel recognizes West Bank inhabitants as Jordanian citizens.

We therefore find that Palestinians are not denied full citizenship, but even if they are, such denial arises not from a denial by the Israeli authorities, but rather as a result of the international law governing the administration of occupied territory by a military occupant and the absence of a Palestinian State.

Furthermore, we do not accept that a blanket pronouncement can be made that all Palestinians in the Occupied Territories are persecuted or for that matter that all Palestinians in Israel are persecuted. Nor do we accept that "their inferior political status" can be shown to put them at risk of persecution. It is recognized, however, that opinions differ sharply. We refer by way of example to the debate in the Harvard International Law Journal comprising the published views of Falk & Western, The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defence of the Intifada (1991) 32 Harvard International Law Journal 129 and Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457. It is also noteworthy that in the Forward to McDowall's The Palestinians, Dr Claire Palley at 4 observes:

"Such contrasts between moral standards and events on the ground pose tremendous dilemmas for Israelis. For example, while the Zionist movement has always advocated democracy, equality and non-discrimination, the technicalities of Israeli law deliberately deny many rights to Palestinian Arab citizens as well as to the Palestinians in Israel's occupied territories. Again, Zionists have attacked prejudice throughout the world, but themselves patronizingly stereotype Arab Palestinians as having a particular mentality requiring "firm-handed" treatment. Zionist charities direct their economic aid only to Jewish Israelis, a factor reinforcing differences in economic opportunities between Jews and Arabs and increasing Palestinian resentment. It must be added that Arab Palestinians have by and large refused to exploit even the limited power opportunities offered them by the political and economic system to mitigate their disadvantages, while complaining about the constantly widening gap in living standards between themselves and Jewish Israelis.

Nonetheless, it must be emphasized that Israel is more democratic than any other State in the Middle East; it has an independent and outspoken judiciary; it attempts to investigate abuses by its security forces; it permits internal dissent; it has a relatively free press, sections of which are fiercely critical of policy towards Palestinians and publicize governmental misdeeds (such as certain activities of Shin Bet); and it has an active opposition which argues for policy changes - for example, in June 1987 successfully stopping grants to ex-service university students, which would have discriminated against Arab Palestinians."

Concessions of this kind are absent from McDowall's own text.

In support of the submission that all Palestinians in the Occupied Territories are persecuted we were referred (inter alia) to McDowall, The Palestinians (Minority Rights Group, 1987), Takkenberg, The Protection of Palestine Refugees in the Territories Occupied by Israel (1991) Volume 3 International Journal of Refugee Law 414, the United States Department of State Country Reports on Human Rights Practices for 1990, various Amnesty International reports, and various newspaper reports and magazine articles.

There is some irony to the appellant's submission of generalised persecution. The Palestine Liberation Organization (PLO) which claims to represent all Palestinians does not want Palestinians to leave the Occupied Territories. In September 1991 a fact-finding mission by the Norwegian Organization for Asylum-Seekers visited both Algeria and Jordan. Reporting on their visit to the Embassy of the State of Palestine in Jordan, the members of the study tour reported (at p.5):

"The Organization [i.e. the PLO] directs severe criticism against the US Embassy for giving out visas to Palestinians. Palestinians must stay in Palestine to a greatest possible degree, claims PLO. USA's policy is to drain Palestine for Palestinians and use the available area for receiving more Jews, especially from the Soviet Union, says PLO: 'Americans talk about human rights, but they do not consider Palestinians as human'."

However, the submission that all Palestinians are persecuted having been made, the issue must be addressed.

It is to be noted that the submission is couched in terms which are both general and sweeping. The evidence cited in support could also be described in the same terms. As we see it, the issues are more complicated than the appellant's case would suggest. For example, the study produced by the Israel National Section of the International Commission of Jurists, The Rule of Law in the Areas Administered by Israel (1981) was dismissed by the appellant as Israeli self-justification (see paragraph 2 of the memorandum dated 13 April 1992). The submission developed was that as the study acknowledges that there is a lower standard of recognition of human rights in the Occupied Territories, this is:

"... ipso facto evidence of persecution within the terms of the United Nations Convention for Refugees."

[Memorandum paragraph 8]

In our opinion the issues cannot be satisfactorily approached in this way. In our view, the starting point of any discussion is the fact that Israel's occupation of the Occupied Territories is based upon the laws of war. We have already referred to the fact that there is a large measure of agreement among writers on this point. The principle embodiments of the law of belligerent occupation allow an occupant to take measures to ensure that it is protected from hostile acts: Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457, 478; Roberts, The Palestinians, The Uprising, and International Law (1989) 2 Journal of Refugee Studies 26, 31. Put another way, since military occupation is not democratic, and its prime objective is not the welfare of the population, political activity can be limited if it is viewed as harmful or likely to foment disorder. There will always be room for legitimate differences on the extent of Israel's violations of humanitarian principles and there will also be legitimate disagreement on what measures may be taken to maintain the orderly government of the territory and to ensure the security of Israel as the occupying power: Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457, 484, 490. This does not of itself, however, establish that all Palestinians in the Occupied Territories are persecuted.

We were asked to measure the actions of the Israeli authorities in the Occupied Territories against the so-called International Bill of Rights comprising the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights. But we were given very little assistance from the parties to undertake this task. Furthermore, no evidence was given as to whether Israel is a party to any of these Conventions. Our own researches have revealed that Israel has not ratified the International Covenant on Civil and Political Rights: Oraá, Human Rights in States of Emergency in International Law (1992) 256. It would not be unreasonable to assume the same situation pertains in relation to the second Convention as it enshrines "rights" secondary in importance to those in the first Convention.

That, however, does not dispose of the issue. For it could be said that quite apart from the two 1966 Conventions, Israel is bound by certain principles of international law. In order to place the discussion in a logical context, we propose addressing first the situation as it would pertain under the International Covenant on Civil and Political Rights.

Several human rights treaties contain non-derogation clauses in recognition of the fact that even in situations of public emergency threatening the life of the nation, there are some rights which can never be suspended. The principle establishes a clear limitation on the right of States to take measures derogating from human rights standards when they face an emergency. However, the international community as a whole has neither established a uniform list of non-derogable rights nor ranked non-derogable rights ahead of derogable rights. Indeed, a comparative study of the International Covenant on Civil and Political Rights, the European Convention of Human Rights and the American Convention of Human Rights reveals that there are only four rights which are considered non-derogable in all of the treaties. These four rights are: the right to life, the right to be free from torture and other inhuman or degrading treatment or punishment, the right to be free from slavery or servitude, and the principle of non-retroactivity of penal laws. These four non-derogable rights constitute what has been called the "irreducible core" of human rights: Oraá, Human Rights in States of Emergency in International Law (1992) 96. In his opinion, these rights are so fundamental that they are considered to be not only customary international law but also norms of ius cogens, and no derogation whatsoever can be permitted in emergencies.

The other conclusions reached by Oraá (op. cit. 125) are as follows:

1.   A detailed analysis of the other non-derogable rights in the International Covenant on Civil and Political Rights and the American Convention on Human Rights confirms the impression that the inclusion of these rights was due to the fact that most of them are not directly related to emergencies and therefore there is no need to derogate from them. This is especially true in respect of the right to be recognized as a person before the law (ICCPR art. 16; ACHR art. 3), the right to be free from imprisonment merely on the ground of inability to fulfil a contractual obligation (ICCPR art. 11; ACHR art. 7(7)), the right to marry and build a family (ACHR art. 17), the right of a child to be protected (ACHR art. 19), and finally the right to a name (ACHR art. 18).

2.   As far as those non-derogable rights which may have an impact on emergencies are concerned, such as the right to nationality, the right to freedom of conscience and religion and the right to participate in government, the existence of important qualifications within these rights means that their entrenchment against derogation is not so important.

3.   In addition to the rights especially entrenched in the derogation clause, other provisions in the three treaties could be deemed non-derogable by implication; these provisions are those related to the exercise of the non-derogable rights (remedies and non-discrimination), those containing general exceptions, and those related to the machinery of implementation of the treaties.

4.   There is no doubt that the right to be free from arbitrary arrest and the right to due process of law are two of the most fundamental rights for the protection of human beings at all times. These rights, however, have not been made non-derogable in the treaties.

The conclusions reached by Oraá (op. cit. 139) is that in the three treaties studied, there are three substantive conditions for taking measures of derogation from human rights obligations in situations of emergency. The right of the state to take such measures is conditioned by the principle of proportionality, which states that the measures must be strictly required by the exigencies of the situation, by the principle of non-discrimination, which states that the measure must not involve any discrimination, and finally, by the principle of consistency, which states that measures should not be inconsistent with the States' other obligations under international law.

For the purpose of the present case we intend to concentrate on the principle of proportionality as the opinion expressed by Oraá (op. cit. 141) is that:

"The principle of proportionality is not a principle that applies solely to the derogation clause or to the realm of human rights. The principle of proportionality can be deemed to constitute a general principle of international law ..." [emphasis added]

We accept this opinion and agree with Oraá's further opinion (op. cit. 140) that:

"One of the areas in which the principle of proportionality has found a major application has been in human rights. Moreover, from the historical point of view, proportionality and human rights have always been linked. In fact in the Age of Enlightenment the problem of balancing the rights and freedoms of individuals with the public interest became one of the main problems in political and legal philosophy. Thus proportionality became one of the main legal principles available by which to determine the legality of States' interference in individual rights and freedoms. The same rationale lies behind its applicability in modern human rights law; the rights and freedoms recognized to individuals are not absolute or without limits; however, such limits must be proportionate to the legitimate aim pursued by the limitation. This has become a well-established principle in domestic as well as in international law."

The general principles on the application of the principle of proportionality are discussed at length at Oraá (op. cit. 144-170) and it is not possible to provide an adequate summary. For the purpose of the present case it is sufficient to set out a selection of those principles (op. cit. 169). The numbering is our own:

1.   As far as the rights recognized in human rights treaties are concerned, not all rights have the same relevance. Therefore, those rights which are more important need closer and stricter scrutiny when the necessity for derogation and the proportionality to the threat are judged.

2.   In assessing whether a derogating State has complied with the principle of proportionality, the monitoring organs have to take into account not only the need for bringing the derogating measures into operation, but also the manner in which the derogating measures have been applied in practice.

3.   In analyzing the principle of proportionality, the monitoring bodies should take into account not only the necessity and proportionality of a given measure, e.g. administrative detention, but also the necessity and proportionality of the suspension of some of the guarantees linked with the derogated right, e.g. the writ of habeas corpus.

4.   In order to assess the proportionality of the derogating measures, the monitoring bodies should analyze the other less grave alternatives open to the government in dealing with the emergency.

5.   In assessing the compliance with the principle of proportionality, special importance should be attached to the necessary safeguards taken by governments in order to avoid abuses.

How then are these principles relevant in a context where the state in question is not a party to the International Covenant on Civil and Political Rights.

To some extent the answer has already been given, namely that the four rights considered non-derogable in all three treaties examined are so fundamental that they are considered to be not only customary international law but also norms of ius cogens. They constitute the "irreducible core" of human rights. In our opinion, Oraá convincingly demonstrates that there is little doubt at this stage in the evolution of international law that States have legal obligations to respect human rights arising from general international law (op. cit. 214) and that the four non-derogable rights form part of that law.

The principle of proportionality is also regarded as a general principle of international law. Again the following quote is taken from Oraá, Human Rights in States of Emergency in International Law (1992) 262:

"As has been continually seen in the present 'enquiry', this principle [of proportionality] appears in almost all the findings of judicial or quasi-judicial bodies as one of the main principles used in order to assess the legality of measures of derogation. The doctrine has also insisted on the importance of this principle in derogations under general international law. Thus, Higgins has pointed out that 'derogations to human rights obligations are acceptable only if events make them necessary and if they are proportionate to the danger that those events represent'. Moreover, this principle has been regarded as a general principle of international law whose special relation with limitations on human rights has been underlined. The principle of proportionality refers not only to the nature of the measures taken, in the sense that they must be proportionate to the threat, but also includes what the IACHR [Inter-American Commission on Human Rights] has called 'the principle of temporariness' (which means that they cannot last longer than the emergency itself), and the limitation that they must be extended in geographical terms only to those places affected by the emergency. These limitations are the logical consequences of the principle of proportionality and would therefore seem to be applicable in general international law as well."

The conclusion we have reached is that while the three treaties studied by Oraá establish different lists of non-derogable rights, at least the four common non-derogable rights can be assumed to constitute norms of ius cogens which are therefore non-derogable even for states non-parties to those treaties and further, that the principle of proportionality is the main criterion for derogation in general international law.

Against this background it is possible to return to the facts of the present case. It is to be remembered that the four "irreducible core" human rights are: the right to life, the right to be free from torture and other inhuman or degrading treatment or punishment, the right to be free from slavery or servitude, and the principle of non-retroactivity of penal laws.

Addressing first the right to life, Israel has not applied capital punishment in the Occupied Territories, although the Geneva Convention allows it: Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457. The United States Department of State Country Reports on Human Rights Practices for 1990 at 1478 records that political killing is not practised or condoned by the Government of Israel. It does, however, report that several human rights groups alleged that in 1990 Israeli security forces intentionally killed five wanted Palestinian activists in circumstances in which the use of force was unnecessary, inappropriate or unauthorized. The report also notes that Israeli settlers killed ten Palestinians in 1990 in what appeared to be politically- related circumstances. In addition, seventeen Palestinians were killed on the Temple Mount/Haram al-Sharif in Jerusalem and there have been other victims of clashes between Israeli security personnel and civilians. However, the Authority cannot conclude from these facts that all Palestinians face a real risk to their lives. On the contrary, the principal risk is to those who take an active part in the uprising or intifada. Such risk as there is to innocent bystanders to such incidents cannot be elevated to the level of persecution.

Addressing now the issue of torture and other inhuman or degrading treatment or punishment, it is accepted that there are credible reports of torture and ill-treatment of Palestinian detainees. But it is unrealistic to extrapolate from documented cases of torture or other cruel, inhuman or degrading treatment or punishment a supportable proposition that all Palestinians face a real risk of such treatment.

Addressing now the question of slavery or servitude, the United States Department of State Country Reports on Human Rights Practices for 1990 notes that there is no forced or compulsory labour in the Occupied Territories (p.1496).

As to the principle of non-retroactivity of penal laws, no mention at all of this issue was made during the course of the hearing, nor is there any discussion of the topic in the United States Department of State Country Reports on Human Rights Practices for 1990. In these circumstances we find that there is no evidence to suggest that this core right is infringed.

We therefore find that there has been no or no significant infringement of the four so- called non-derogable rights and in our opinion a finding of generalized persecution against all Palestinians cannot be made in this respect.

However, it was impressed upon us that:

"Virtually all the literature on the subject indicates that the Palestinians who do live in the Occupied Territory are subject to persistent persecution and abuse of human rights through daily and institutionalized harassment."

See paragraph 4.4 of the Final Memorandum of Points dated 1 April 1992.

As previously mentioned, called in aid of this submission was McDowall, The Palestinians (Minority Rights Group, 1987) in particular at pages 18, 20, 21, 22 and 23 as well as the general summary to be found in Takkenberg, The Protection of Palestine Refugees in the Territories Occupied by Israel (1991) Volume 3 International Journal of Refugee Law 414, 416. But for every complaint against Israel, there is an answer, as exemplified by the response published by the Israel National Section of the International Commission of Jurists in The Rule of Law in the Areas Administered by Israel (1981). While this work could be criticized for being out of date, a similar observation could be made in relation to the Minority Rights Group report by McDowall which was first published in May 1975, although the Authority has used what is described as a "completely new edition" published in October 1987. Even that publication date could be classified as "old". However, we do not think that anything significant turns on the issue of the comparative ages of the resource material. The point being made is that for every complaint there is an answer, as exemplified in the very recent debate in the Harvard International Law Journal comprising the published views of Falk & Western, The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defence of the Intifada (1991) 32 Harvard International Law Journal 129 and Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457.

It is against this background that we turn to the general principles on the application of the principle of proportionality referred to earlier. Our finding in relation to the claim of generalized persecution of all Palestinians is that we have not been persuaded to any reasonable degree that the actions of the Israeli authorities are out of proportion to what Oraá describes as the "special situation" in the Occupied Territories: Human Rights in States of Emergency in International Law (1992) 256. In arriving at this conclusion, we have attempted to rank in order of importance the various rights alleged to have been infringed. We have then balanced those rights against, first, the exceptional situation that exists in a territory governed by the law of occupation and, secondly, against the acknowledgement that derogation from human rights is possible provided the principle of proportionality is adhered to.

Having given careful consideration to the books, journals and articles referred to as well as the substantial bundle of country information tendered by the New Zealand Immigration Service at the hearing, the Authority has concluded that it is not possible to make a rational finding that all Palestinians living in the West Bank are persecuted on Convention grounds. We are reinforced in this view by the fact that we have been referred to no case from any of the State Parties to the Refugee Convention in which such finding is made, nor have our own researches discovered any such case.

Finally, we must in the end concentrate upon the facts of the appellant's individual circumstances without, of course, overlooking the literature referred to.

In this regard we have been influenced by two particular factors:

(a) The appellant struck us as a person who is apolitical. He knew virtually nothing of the history of Palestine, or the Palestinian people, their political organization and aspirations. Indeed, his evidence was notable for the fact that no claim was made either that the appellant or his family had been involved in politics, or that he was likely to become involved in politics in the future. Nor was there any suggestion that the appellant had feelings about the Israeli occupation of a kind that would lead him to support or become actively involved in the Resistance or Intifada. On top of that there is the fact that he left Palestine at ten years or thirteen years of age, at a time when the Israeli authorities had absolutely no cause to be interested in him, he has been absent for some eleven to fourteen years and his return to Israel or the West Bank would be wholly unremarkable. This is underlined by the fact that Israel has since 1967 permitted over 75,000 Palestinians to re-unite with their families by acquiring permanent residence in the territories: Curtis, International Law and the Territories (1991) 32 Harvard International Law Journal 457, 481.

(b) It is accepted that if the appellant were to be returned to the Occupied Territories he may very well not receive the full benefit of international conventions such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. But that fact alone is not conclusive. The rights and freedoms recognized to individuals are not absolute or without limits. We accept Curtis' opinion that (op. cit. p.482) the Israeli occupation is unique both in the control the civilian court system exercises and in the fact that the military branches avail themselves of preliminary legal advice before taking action:

"The structure of the legal regime in the territories provides an avenue for effective non- violent response to alleged violations of human rights, undermining Falk & Western's apparent justification for Palestinian violence. Those who claim their rights have been violated can appeal to the military court system and then to the Supreme Court. This is the first time in the history of belligerent occupation that individuals in an occupied territory have been granted the right of appeal to the highest court of the occupant ... As has been the case throughout legal history, although lawyers may dispute certain Court decisions, this does not in itself refute the system's sincerity in trying to maintain international standards."

There is force in Curtis' opinion at p.477 that:

"Social and economic problems remain in the territories, as in all societies, but it is inappropriate to characterize the situation as intolerable or one of unbearable suffering. And it is difficult to depict the administration of the occupied territories as suppressive of civil and human rights, especially when residents have ready access both to the media, including American television, and to the courts. Admittedly, the core of the present discontent in the territories is not motivated primarily by social and economic dissatisfaction, but those who justify a "right of resistance" or the use of violence might take into account the various efforts by the Israeli government to improve the condition of Palestinians living in the territories."

We find that the appellant, upon return to Israel or the Occupied Territories will not face a real chance of persecution because on the facts there is nothing in the appellant's individual circumstances, or in the law and practice of the Israeli authorities in the West Bank to create any chance of his persecution, let alone a real chance.

CONCLUSIONS AS TO WELL-FOUNDED FEAR OF PERSECUTION

The conclusions reached by the Authority on this, the alternative ground of our decision, are that the following answers are to be given to issues 1, 2, 3, 4 and 7:

1.   Is the appellant genuinely in fear?

Answer: Notwithstanding our ruling on credibility, we will in this context assume that the answer is Yes.

2.   Is it a fear of persecution?

Answer: Yes.

3.   Is that fear well-founded?

Answer: No.

4.   Is the persecution he fears persecution for a Convention reason?

Answer: Yes.

7.   Is he unable, or owing to the well-founded fear, unwilling to return to it [the country of his former habitual residence]?

Answer: No.

OVERALL CONCLUSION

Our overall conclusion is that the appellant is not a Convention refugee. The appeal is dismissed.

"R P G Haines" [Member]

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