S v. Refugee Status Appeals Authority

Court of Appeal, Wellington

Treaties - Treaty interpretation - Article 1F(b)

Treaties - Treaty interpretation - Status of UNHCR Handbook

Treaties - Convention Against Torture - whether relevant to interpretation of Article 1F(b)

Refugee definition - Exclusion - Article 1F(b) - meaning of serious non-political crime - whether aggravated robbery a serious crime - whether seriousness of crime to be weighed against the gravity of the consequences of return to country of origin

The appellant, a citizen of Sri Lanka, was a member of Janatha Vimukthi Peramuna (JVP), a communist-based movement whose broad aim was to destablize, and then take over, the country. Part of the destablization programme was to impose curfews on shop-keepers. The appellant, with others, was engaged in enforcing these curfews. The shop-keepers mostly complied because the alternative was either the burning down of the shop or the killing of the shop-keeper. In 1988, during the JVP uprising the appellant, together with between four and ten others, went on a rampage of some 35 or 40 aggravated robberies. When the gang descended on the shops they announced they were from the JVP. This was sufficient to subdue the shop-keepers and none offered resistance. All the youths were affected by heroin on the day. The appellant said that some of the money was used to buy more drugs and for personal expenses. He was unable to say whether or not any of it had actually reached the JVP. He maintained that he did not make any of the demands, he was simply there, sometimes inside, sometimes outside the shop. The Refugee Status Appeals Authority concluded that the appellant held a well-founded fear of persecution for a Convention reason and therefore satisfied the inclusion clause criteria of the Refugee Convention. However, the Authority went on to hold that as there were serious reasons for considering that the appellant had committed a serious non-political crime outside New Zealand prior to his admission, he fell within the exclusion provisions of Article 1F(b).

In the Court of Appeal it was argued for the appellant that the High Court had erred in holding that the offences of aggravated robbery committed by the appellant were "serious" crimes. It was further argued that the determination whether a claimant for refugee status comes within Article 1F(b) requires a balancing exercise, under which there is a need to weigh the seriousness of the crime against the gravity of the consequences of return to the country of origin. That is, a crime will only be serious if its particular nature outweighs the duty to offer protection from a particular form of prosecution.

Held:

1. The phrase "serious crime" has to be construed in the context of the Convention and its stated purposes. It has an humanitarian context and it is intended to give a means of protecting fundamental rights and freedoms. Within that framework, however, the written words must be given their ordinary meaning when that is clear and does not yield an absurd or unreasonable result (see [1998] 2 NZLR 291, 297, line 4).

2. To classify any crime as serious requires an evaluation not only of the elements which form the crime, but also of its facts and circumstances, as well as the circumstances of the offender which are relevant for the purposes of the criminal law. The level of penalty inflicted or likely to be inflicted in those circumstances by the contracting state and probably, by the state in which the crime was committed, are relevant factors. The contracting state then has the right to exclude from its Convention obligations persons who would otherwise qualify for refugee status. The inquiry therefore must be whether the crime is of sufficient gravity to justify withholding the benefits conferred by the Convention. The inquiry assumes that the offender has a well-founded fear of persecution, so there is no need to revisit that issue under Article 1F(b) (see [1998] 2 NZLR 291, 297, line 9).

3. Exclusion is directed to offending in the upper end of the scale, which is likely to attract a severe penalty, at least in the nature of imprisonment for an appreciable period of years. It is impossible to be any more precise, but the general intention is clear, and in the New Zealand criminal jurisdiction it can safely be said that a crime which is described as serious will be a crime grave within the meaning of the French text of the Refugee Convention (see [1998] 2 NZLR 291, 296, line 26).

4. Article 1F(b) is clear and unambiguous. It directs attention to the commission of a serious crime, nothing more, nothing less. The seriousness of a crime bears no relationship to and is not governed by matters extraneous to the offending (see [1998] 2 NZLR 291, 297, line 21).

5. There is nothing in Article 1F to justify reading into its provisions restrictive or qualifying words such as those which would be necessary to require a balancing exercise of the kind suggested. The difficulty with the approach contended for by the appellant is apparent from its very formulation. It requires the degree if criminality to be assessed not only from an analysis of the actual offending, but also by reference to factors which are external to and may well be (as is the present case) unrelated to the offending. The difficulty is highlighted by the absence in Article 1F of any reference to the consequences of persecution, and by the fact that under Article 1F(b) the only qualification to the word "crime" is that it must be serious. It is not easy to grasp the concept that the same offending may or may not be serious, depending upon the level or degree of persecution expected to be suffered in the homeland. Acceptance of the concept would mean that in some circumstances applicant A would be excluded from the Convention provisions under Article 1F(b), but applicant B, who has committed an identical crime and bears the same culpability in the eyes of the law, would not (see [1998] 2 NZLR 291, 296, line 5 & 297, line 21).

6. Whether a crime is to be categorised as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences. It does not depend upon, nor does it involve, a comparative assessment of its gravity with the gravity of the perceived persecution if return to the homeland eventuates. The gravity of the particular offending is relevant to whether or not it is to be classed as a serious crime, but this does not necessitate anything in the nature of a proportionality exercise outside that inquiry (see [1998] 2 NZLR 291, 298, line 35 & 300, line 12).

Gil v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4th) 497 (FC:CA); T v Secretary of State for the Home Department [1996] AC 742 (HL); Dhayakpa v Minister for Immigration and Ethnic Affaires (1995) 62 FCR 556 (French J) followed and applied.

7. The Convention Against Torture has no relevance to the interpretation of Article 1F of the Refugee Convention. The Convention Against Torture has its own regime and places its own separate obligations on contracting states in respect of all persons, not only refugees. It cannot affect or control the exclusion provisions of the Refugee Convention. Refusal of refoulement under Article 3 of the Convention Against Torture is a completely separate question, as also is the refoulement provision in Article 33 of the Refugee Convention. Neither assist the construction of Article 1F(b) (see [1998] 2 NZLR 291, 299, line 38).

8. It is important to remember that exclusion from the provisions of the Refugee Convention does not mean automatic expulsion from New Zealand, or refoulement. New Zealand's obligations under the Convention Against Torture remain. The appellant's rights to invoke such of the humanitarian provisions of the Immigration Act 1987 as may be applicable to him are also unaffected (see [1998] 2 NZLR 291, 300, line 18).

Observations:

1. While the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status can be accorded due weight, it cannot override the function of, in this case the Court, in determining the meaning of the words of the Convention. To the extent that para 156 of the Handbook refers to the need to strike a balance between the nature of the offence or the degree of persecution feared, it is not good law in New Zealand (see [1998] 2 NZLR 291, 300, line 1).

2. Nothing of assistance in relation to the interpretation of Article 1F(b) can be found in the travaux préparatoires (see [1998] 2 NZLR 291, 299, line 15).

3. While academic writing endorses a balancing or proportionality test, the arguments are substantially statements of preference rather than of purpose of construction of Article 1F(b). The writings are not persuasive (see [1998] 2 NZLR 291, 299, line 30).

Appeal dismissed

Other cases mentioned in the judgment:

Butler v Attorney-General [1999] NZAR 205 (CA)

Gonzalez v Canada (Minister of Employment and Immigration) (1994) 115 DLR (4th) 403

Malouf v Canada (Minister of Citizenship and Immigration) (1995) 190 NR 230

S v Refugee Status Appeals Authority [1998] 2 NZLR 301 (Smellie J)

Counsel:

David Ryken for the appellant

Michael Hodgen for the respondents

Solicitors for the appellant: Richard S Wood (Auckland)

Solicitors for the respondents: Crown Law Office (Wellington)

[Editorial note: The decision of the High Court is reported as S v Refugee Status Appeals Authority [1998] 2 NZLR 301 (Smellie J). For an undergraduate critique of the High Court and Court of Appeal decisions, see Annabel Ives, Exclusion for Extortion: An Inquiry into the Suitability of a Balancing Exercise for Article 1F(b) of the Refugee Convention With Reference to S v Refugee Status Appeals Authority (June 1998). This paper is to be found on the Comment page of this web site.

The non-refoulement obligation contained in Articles 32 and 33 of the Refugee Convention was subsequently incorporated into New Zealand domestic law by the Immigration Amendment Act 1999, s 40 which inserted a new s 129X into the principle Act, being the Immigration Act 1987.]