REFUGEE APPEAL NO. 70050/96 Re BS
|G J X McCoy (Chairperson)
|S Joe (Member)
|Counsel for Appellant:
|Representative for NZIS:
|Date of Hearing:
|8 August 1996
|Date of Decision:
|20 February 1997
This appeal deals with an issue concerning Article 1F of the Exclusion Clause of 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. It has never before been considered by New Zealand refugee jurisprudence. It arises because the present appeal is the second appeal to this Authority filed by the appellant.
THE FIRST APPLICATION
The appellant is an Indian national of the Sikh faith who arrived in New Zealand as long ago as 13 December 1989. Without alacrity, the appellant lodged his application for refugee status on 15 March 1993. On 30 July 1993 the Refugee Status Section of the Immigration Service ("RSS") declined to grant the appellant refugee status.
THE FIRST APPEAL
The appellant appealed to this Authority. After extraordinary delays, caused by a combination of the appellant oscillating between various legal advisers and other circumstances, his appeal was heard on 14 June 1995. On 11 August 1995, under Refugee Appeal No 2398/95, the Authority dismissed his appeal, finding that the appellant's evidence was so bereft of credibility that his case failed in limine. In addition, the Authority found that in terms of Article 1F(b) of the 1951 Refugee Convention, there were serious reasons for considering that the appellant had committed a serious non-political crime in India, (the killing of IS), prior to his distant admission to this country, and that he was therefore excluded from the protection of refugee status.
THE SECOND APPLICATION
Unperturbed by this decision, the appellant lodged a second application for refugee status with the Refugee Status Branch ("RSB") of the Immigration Service, which had superseded the former RSS. The second application was lodged on 22 February 1996, some 6 months after the Authority's rejection of his appeal. On 30 April 1996 the RSB issued its decision declining the second application.
JURISDICTION FOR THE SECOND APPLICATION
The jurisdiction of the RSB to receive and determine a second application for refugee status is narrowly circumscribed by Paragraph 3 of its Terms of Reference (current 1993 edition) which reads:
"3.A person who has previously had a claim to refugee status finally determined by the Refugee Status Section or the Authority has no right to have a further claim accepted for consideration by the Refugee Status Section, unless since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim."
THE DECISION-MAKING PROCESS : SECOND APPLICATION
The RSB upon receiving the second application, conscientiously, but needlessly, determined that the appellant had failed to meet the criteria for accepting the second application. The RSB found that on an examination of the new allegations of fact and the materials adduced by the appellant that he had not demonstrated that:-
" since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the original claim"
THE SECOND APPEAL
Alleging himself aggrieved by the determination of the RSB, the appellant appealed to this Authority. On 2 May 1996 the Authority received the second notice of appeal. The appeal was listed to be heard on 8 August 1996.
JURISDICTION FOR THE SECOND APPEAL
In similar fashion, the jurisdiction of the Authority is prescribed by Paragraph 5 of its Terms of Reference (current 1993 edition). Relevant facets of the jurisdiction are set out:-
"5(1)The Authority's functions shall be:-
(a)To make a determination on appeal from decisions of the Refugee Status Section of the New Zealand Immigration Service as to whether persons are refugees within the meaning of Article 1A(2) of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.
(b)To make a determination on appeal from decisions of the Refugee Status Section as to whether a person who meets the definition of a refugee in Article 1A(2) of the Convention should nevertheless be excluded from the protection of the Convention, pursuant to Article 1D, 1E or 1F of the Convention.
[(c) and (d) omitted as being presently immaterial]
(e)To determine, on application by the Refugee Status Section or on appeal from a decision of the RSS, in any case where matters dealt with in Article 1D, 1E or 1F of the Convention may not have been properly considered as a result of fraud, forgery, false or misleading representation, or concealment of relevant information, whether Article 1D, 1E or 1F should be applied. The Authority may exclude the person from the protection of the Convention in such a case if applicable.
(f)To determine an appeal, by a person who has a further claim to refugee status, against the decision of the RSS not to accept the claim for consideration because, since the original determination, circumstances in the claimant's home country have not changed to such an extent that the further claim is based on significantly different grounds to the original claim."
Paragraphs 5(1)(b) and (e) both expressly refer to Article 1F of the Convention. The spirit of paragraph 5(1)(f) of the Authority's Terms of Reference is identical with that found in paragraph 3 of the Terms of Reference of the RSB. Paragraph 5(1)(b) demonstrates the over-arching dominance of the Exclusion Clause in the refugee context.
The Authority is not a statutory body but is a creature of the Royal Prerogative: Santokh Singh v Refugee Status Appeals Authority  NZAR 193 and Khalon v Attorney General  1 NZLR 458. The circumference of the Authority's jurisdiction is its Terms of Reference, which should not be interpreted legalistically but in an open-textured way. Even so, there is no room for ambiguity in this case.
CHAIRPERSON'S DIRECTION : SECOND APPEAL
On 5 August 1996, the Secretariat of the Authority sent a letter to the lawyer acting for the appellant. In material terms it read as follows:-
"This appeal is listed to be heard by the Authority at 2pm on Thursday, 8 August 1996.
The Chairperson of the Authority has directed me to bring to your attention that the Authority will require the advocate for the appellant to address, as a preliminary issue relevant to the Authority's jurisdiction:- whether a second appeal can be instituted and maintained in circumstances where the first appeal was dismissed, on the basis that the appellant could not be granted refugee status as he fell within the Exclusion provision of Article 1F of the Convention?"
INTRODUCTION TO ARTICLE 1F OF THE REFUGEE CONVENTION
Article 1F of the 1951 Convention states:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations."
It must be observed that the Article is mandatory, it imposes no discretion in the decision-maker if the prescribed evidential threshold is attained : Refugee Appeal 913/92 Re AS (15 May 1995). The wording of the Article, the product of extensive travaux preparatoires is pellucid - "The provision of the Convention shall not apply " (Emphasis added).
The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the Protocol relating to the Status of Refugees (1976) (2nd edn, 1988) published by the UN High Commissioner for Refugees ("UNHCR Handbook") states the background to the creation of Article 1F:-
"147.The pre-war international instruments that defined various categories of refugees contained no provisions for the exclusion of criminals. It was immediately after the Second World War that for the first time special provisions were drawn up to exclude from the large group of then assisted refugees certain persons who were deemed unworthy of international protection.
148.At the time when the Convention was drafted, the memory of the trials of major war criminals was still very much alive, and there was agreement on the part of States that war criminals should not be protected. There was also a desire on the part of States to deny admission to their territories of criminals who would present a danger to security and public order.
149.The competence to decide whether any of these exclusion clauses are applicable is incumbent upon the Contracting state in whose territory the applicant seeks recognition of his refugee status. For these clauses to apply, it is sufficient to establish that there are "serious reasons for considering" that one of the acts described has been committed. Formal proof of previous penal prosecution is not required. Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive."
Paragraph 151 of the UNHCR Handbook deals with the rationale for Article 1F(b), which is specifically relevant to the appellant:-
"The aim of this exclusion clause is to protect the community of a receiving country from the danger of admitting a refugee who had committed a serious common crime. It also seeks to render due justice to a refugee who has committed a common crime (or crimes) of a less serious nature or has committed a political offence."
The expression "common crime" is a rather puzzling translation of the equally authentic French version of the Convention, which provides "un crime grave de droit commun" which is not truly "common crime" but "ordinary crime".
COMPARATIVE JURISPRUDENCE : ARTICLE 1F
In a very recent decision of the House of Lords, (unanimous in the result of the appeal but not as to the reasoning), T v Secretary of State for the Home Department  2 All ER 865, Lord Mustill at 875j - 876a noted:-
"As Art 1F of the convention recognised, war criminals and offenders against the law of nations could properly be sent home to answer for their crimes, and there were others whose criminal habits made it unreasonable for them to be forced on to a host nation against its will. Such persons could not claim to be protected against refoulement, even where their lives or freedom were at risk. Significantly, they were referred to in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the Protocol relating to the Status of Refugees (1976) published by the office of the UN High Commissioner for Refugees (hereafter the UNHCR Handbook') as persons who are not considered to be deserving of international protection' (2nd edn, 1988) para 140."
To that significant' reference may be added the descriptions of the two leading Western academic commentators. Professor Hathaway in "The Law of Refugee Status" speaks of the class contemplated by Article 1F as "Persons Who Do Not Deserve Protection" # 6.3 and Professor Goodwin-Gill in "The Refugee in International Law" (1996 - 2nd edn pg 95) speaks of "Undeserving cases".
As Hathaway op cit observes at 6.3, the international thrust that compelled the creation of the exceptions is obvious:-
"The drafters of the Convention were preoccupied to avoid the granting of refugee status to both war criminals and individuals who might jeopardize the internal security of asylum countries. The decision to exclude such persons, even if they are genuinely at risk of persecution in their state of origin, is rooted in both a commitment to the promotion of an international morality and a pragmatic recognition that states are unlikely to agree to be bound by a regime which requires them to protect undesirable refugees. Relying on the Universal Declaration of Human Rights prohibition on the granting of asylum to persons liable to prosecution for "non-political crimes or acts contrary to the purposes and principles of the United Nations, the Convention provides for the mandatory exclusion of three classes of persons: those who have committed crimes against peace and security; serious common law criminals; and individuals who have acted in contravention of the principles and purposes of the United Nations."
In this appeal it does not fall to decide the ambit of the definitional criteria of Article 1F(b). The decision of the Authority given in Refugee Appeal No 29/91
Re SK (17 February 1992) remains the leading decision of the Authority on Article 1F(b). It anticipated many of the issues grappled with in T v Secretary of State for the House Department and indeed many of the answers. In an appropriate appeal it will be necessary to determine whether the reliance on McMullen v Immigration and Naturalisation Service 788 F 2d 591 (9th Cir 1986) (25 April 1986) as to issues of causation and proportionality is still appropriate in view of the speeches of Lord Mustill at 881d - 882c, 883b - 883c and Lord Slynn of Hadley at 888e-g. It must be observed however, that the other three Law Lords did not reach the same conclusion by the same route as that chosen by Lord Mustill and Lord Slynn. The speech of Lord Lloyd (with whom Lord Keith of Kinkel and Lord Browne-Wilkinson concurred) must technically contain the ratio decidendi of the decision. Whether that majority view or the competing reasoning of Lord Mustill and Lord Slynn (of the concurring majority) will prevail in New Zealand, does not require decision in this appeal.
No other decision of this Authority has analysed the issues with as much clarity and penetration as that of Refugee Appeal 29/91. It did so without the benefit of any decisional law in New Zealand, Australia, Canada or the United Kingdom and proceeded on a principled approach based on the philosophy, history and ethos of the Convention, as illuminated by the academic jurists, and a traverse of the exceptionally few other overseas decisions existing at February 1992. Fortunately, the task of dealing with Article 1F has proved to be a very rare one for the Authority. Indeed, in Re Gil and Minister of Employment and Immigration (1994) 119 DLR (4th) 497 (21 October 1994) the Federal Court of Appeal was able to state at 500c per Hugessen JA:
"This case concerns the proper interpretation and application of the "serious non-political crime" exception contained in Article 1F(b) of the Convention. It is, as far as we have been informed, the first such case to be decided by a Canadian court."
A year later in a seminal article "Exclusion Up
It is not without interest to revisit the appellant's own admissions made in his original application for refugee status. The appellant stated that in 1988 he joined the K and was a well-known, (his own words), member of the group. In his application he identified with specificity his immediate superiors, the aims, objects and philosophy of the group and admitted that it condoned the use of violence and had always been a banned and illegal organisation.
Some short extracts from the appellant's original application for refugee status follow:
"We had been at a meeting in a farmhouse in D village. BS (alias B) was the leader at that meeting. He was going to send us on a mission to kill 2 traitors of our organisation but somebody informed on us. We were attacked by police at this meeting place and the police fired on us. We retaliated by shooting back. The shooting from both sides went on for about 45 minutes. Two of our members were shot and killed. B instructed us to leave the house by the back door. One person was told to stay there and keep shooting. We took advantage of the dark and 7 of us slipped out.
After that incident we were told to kill the police informer, who was IS, and who lived in my village. The police started searching for me and raided a few houses where they suspected I might be. I did kill IS by shooting him, and I knew the police would find me. I took off to J in U.P. I lived there for two months and while there I applied for a passport and managed to come to New Zealand."
The appellant in another part of his application said:-
"My cousin JS who took part with me in killing the police informer IS, was arrested in November 1989 and charged with the killing of IS."
THE ORAL HEARING OF THE SECOND APPEAL
Before the Authority, at the hearing of the second appeal, the appellant was now represented by Mr Roger Chambers, Barrister. At the commencement of the hearing, consistent with the Direction issued by the Secretariat to the Authority, the Chairperson invited Mr Chambers to make any submissions on the preliminary issue. Counsel frankly conceded that he had been immediately troubled by the point, upon receipt of the Direction. He acknowledged on behalf of his client that the appellant had been "active in the insurgency" in India and had committed "overt acts of violence" including the "carrying of arms". Counsel acknowledged that his client was a party to these events.
Upon a further elaboration of his submissions, in relation to the jurisdictional threshold Counsel acknowledged that the decision of the Authority in the first appeal was "a most careful decision". Counsel said he was deeply troubled as to how he could sensibly advance the appellant's case because of the clear and detailed adverse findings of credibility made in the first appeal and that his instructions were untenable in respect of credibility on the second appeal. Focussing on the Exclusion Clause issue, Counsel believed he could not offer any responsible argument as to how the second appeal could have been instituted or maintained, in view of the earlier finding of exclusion by the Authority.
IMMEDIATE ORAL DECISION : SECOND APPEAL
Upon receiving the submissions from Counsel, so courteously advanced, the Authority retired to consider the position further. After a short recess the Authority reconvened and ruled that it lacked jurisdiction to hear the appeal and that it would give its full formal reasons in writing as required by Clause 18(1) of its Terms of Reference. Short oral reasons were given by the Chairperson at the time, namely: that a person seeking refugee status who had been determined to be excluded from the protection of the Convention by clause 1F, was unable to institute or maintain a second application for refugee status or a second appeal, as that person is deemed undeserving or unworthy of international protection. This applied whether the original decision of the Authority determined that the appellant was excluded as its only basis for rejecting the appeal or whether it was decided as an alternative basis. The second appeal was also therefore "manifestly unfounded" or "clearly abusive" within paragraph 8(3) of the Authority's Terms of Reference.
RULING ON JURISDICTION
Neither the RSB nor the Authority is empowered by any jurisdiction to accept or determine any second claim or second appeal for refugee status in which the Authority has ruled that the appellant is excluded from the protection of the Convention by Article 1F. This applies, irrespective of which sub-article of Article 1F was invoked, as the basis of exclusion, and irrespective of whether the basis of exclusion was the only ground of the decision or given as an additional ground for the decision.
THE CALCULUS OF ABUSE : REFUGEE APPEALS
It has been the unhappy experience of the Authority that there is a deplorable tendency, by some immigration consultants and legal advisers, to file claims for refugee status with the RSB that can only be characterised as tactically exploitational. These claims are calculated to allow utterly undeserving persons to remain in New Zealand for years, to the stressful disadvantage and substantial prejudice of genuine refugees whose claims cannot be heard and determined, because of the resource limitations of the Authority.
The Authority stresses, however, that the preceding paragraph does not apply to Counsel in this case. In his short association with the appellant, he has acted honourably and properly in the best traditions of the profession, as indeed the Authority has come to expect from him.
As in this case, it is not uncommon for the Authority to hear appeals for refugee status from persons who have lived in New Zealand for seven or eight years and who, having exhausted all other orthodox approaches for New Zealand residence, eventually latch onto a claim for refugee status and thus assure themselves of further substantial and uninterrupted tenure here. An unsuccessful appellant before this Authority may then relax and bask in the comforting knowledge that the compliance and enforcement role of the New Zealand Immigration Service lacks credibility and it is therefore statistically improbable that he or she will ever actually have to return to his or her country of nationality. In the case of the present appellant this is notwithstanding that under international law, he is a person who does not "deserve protection" from any surrogate country.
The Authority does not have jurisdiction to entertain the appeal. For this reason the second appeal of the appellant, who has been in New Zealand for over seven years, is dismissed.
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