Butler v Attorney-General and Refugee Status Appeals Authority

• Jurisdiction: New Zealand
• Judgment Date: 30 September 1997
• Date: 30 September 1997
• Court: Court of Appeal

New Zealand, Court of Appeal.

(Richardson P, Henry, Keith, Tipping and Williams, JJ)

Butler

and

Attorney-General and Refugee Status Appeals Authority1

Human rights Refugees Applicants for refugee status Test to be applied Geneva Convention relating to the Status of Refugees, 1951, and Protocol, 1967 Relevance of other human rights treaties

Treaties Effect in national law Geneva Convention relating to the Status of Refugees, 1951, and Protocol, 1967 The law of New Zealand

Summary: The facts:The appellant, who was a citizen of the United Kingdom and of the Republic of Ireland, had travelled to New Zealand while on bail pending appeal from his most recent conviction. In May 1991 the appellant had arrived in New Zealand with his elder son and his partner, who was pregnant. He failed to disclose his convictions and was wrongly granted a visitor's permit. In August 1991 he was informed about the discovery of the facts about his convictions, following which he filed an application for refugee status. In October 1991 the New Zealand Immigration Service obtained a removal warrant, but undertook not to execute it until the appellant's refugee status had been determined. Shortly afterwards, a daughter was born to the appellant and his partner. In 1992 the appellant's wife and their other son had arrived in New Zealand and they too had applied for refugee status. The application was declined and the appellant appealed to the Refugee Status Appeals Authority (the Authority). The Authority dismissed his appeal in December 1992.

In 1993 the appellant filed an application at the High Court for review of the Authority's decision, claiming that he was entitled to refugee status under the 1951 Convention relating to the Status of Refugees (the Convention) as supplemented by its 1967 Protocol (the Protocol). The application was dismissed in July 1997. The appellant appealed on matters of law relating to the tests applied by the Authority.

Held:The appeal was dismissed. There was no error of law in the Authority's determination of the present case.

(1) The issue in this case was one of law relating to the definition of refugee in Article 1(A)(2) of the Convention as supplemented by the Protocol. Although the provisions of the Convention had been incorporated into the executive machinery for considering applications for refugee status, the New Zealand Legislature had not given express effect to the Convention nor the Protocol in the law of New Zealand upon accession to both treaties (p. 571).

(2) In view of the way the case had been presented to the Authority, it could not be said that the Authority had committed an error of law in not separately addressing a distinct reasonableness element (pp. 57780).

(3) Furthermore, the members of the Authority had incorporated the notion of reasonableness into their tests relating to relocation as that matter had arisen from the definition of refugee as stated in Article 1(A)(2) of the Convention. In addressing the role of reasonableness in the relocation element of the definition of refugee, the basic concept of protection was central to the definition of refugee. The test for reasonableness had to be seen in context and had to be related to the primary obligation of the country of nationality to protect the claimant. While the relocation element was inherent in the definition of refugee, it was not distinct. Having regard to the Convention's purposes of original protection or surrogate protection for the avoidance of persecution, the question was whether it was unreasonable in a relocation case to require a claimant to avail him- or herself of the available protection of the country of nationality (pp. 5802).

(4) While the members of the Authority had included a reasonableness element in their decisions in a manner which was appropriate in the circumstances of the appeal, the rights and interests of the family as found in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child did not have to be considered on the basis of those circumstances and the definition of refugee in the Convention (pp. 5823).

The following is the text of the judgment of the Court, delivered by Keith J:

The issue and the proceedings	570
A new case on appeal	570
The definition of refugee	571
The Refugee Status Appeals Authority	573
The facts	575
The decision of the RSAA	576
The alleged errors of law	577
(1) The process followed before the Authority	577
(2) The decisions of the members of the RSAA	580
(3) The role of reasonableness in the relocation element of the definition of refugee	581
The reviewability of decisions of the RSAA	583
Result	586

The Issue and the Proceedings

Daniel Martin Butler, the appellant, claims that he is entitled to refugee status under the 1951 Convention relating to the Status of Refugees as supplemented by its 1967 Protocol, 189 UNTS 150; 606 UNTS 267. He contends, in terms of the Convention, that owing to well-founded fear of being persecuted for reasons of political opinion he is outside the countries of his nationality (the United Kingdom of Great Britain and Northern Ireland, and the Republic of Ireland), and that, owing to that fear, he is unwilling to return to those countries. His fears relate to death threats made against him by the Irish People's Liberation Organization (IPLO) and to his relations with the Royal Ulster Constabulary (RUC). He wishes to avoid being removed from New Zealand and returned to the United Kingdom.

Officials of the New Zealand Immigration Service (NZIS) declined his application for refugee status and, in a decision given on 14 December 1992, the Refugee Status Appeals Authority (RSAA) dismissed his appeal from that decision. He seeks review of the Authority's decision and, as formulated in the submissions made to us, an order requiring the Authority to consider the appeal afresh on a different basis from that which it is said to have adopted. Robertson J heard the application for review, initially filed four-and-a-half years earlier on 18 January 1993, on 18 July 1997 and dismissed the application in a judgment given on 29 July 1997. He mentioned some of the reasons given by the parties for the inordinate delay in getting the case to trial.

Mr Butler gave notice of appeal on 14 August 1997. The only issues before us are matters of law, relating to the tests applied by the RSAA to Mr Butler's appeal. For the reasons given in this judgment we do not consider that the Authority erred in law and, accordingly, we dismiss the appeal.

A New Case on Appeal

In the High Court phase of the proceedings Mr Butler also sought relief in respect of decisions taken by officials and the Minister of Immigration under the Immigration Act 1987 but these matters are no longer before us. The case on appeal is distinct from that in the High Court in a second sense. The grounds for the challenge to the Authority's decision as presented to us are markedly different from those argued below.

The Crown, while not formally opposing the Court dealing with the new grounds, submits that we should, in deciding whether to exercise our discretion in the interests of justice to consider those fresh matters, consider certain cautionary propositions. We do accept that it is unsatisfactory for an essentially new case to be mounted on appeal: the parties and the Court do not have advantage of the issues being refined through the first instance hearing and decision, with the consequence of the argument being presented in a more developed and considered way. As well, the cost and delay associated with an appeal might have been avoided had the new matters been raised and disposed of at first instance along with the other issues considered. And, although it is not in issue here, different evidence might have been required or called to meet the new grounds. The issue in this case is however a narrow one of law relating to the definition of refugee in the Convention and Protocol. As well, the importance to the appellant and his family of the decision to execute (or not) the removal warrant which he faces and the possibly grave consequences of that action have led us to consider the new grounds.

The case has been argued on the basis of the 1951 Convention and the 1967 Protocol but Parliament did not give express effect to the Convention in the law of New Zealand either in 1960 when New Zealand acceded to it nor in 1973 when New Zealand acceded to the 1967 Protocol nor at any later time. Rather, as explained later, the provisions of the Convention were incorporated into the executive machinery for considering applications for refugee status. We come back to the absence of legislation at the end of the judgment. In the meantime we proceed simply on the basis of the treaty texts.

The Definition of Refugee

The Convention and Protocol define refugee and then set out the status (or the rights and duties) of a refugee and regulate certain administrative matters. At the heart of the Convention and this case is the definition of refugee in Article 1. We set out most of that Article. The emphasized words are those principally in issue. The words in square brackets were deleted by the 1967 Protocol:

It was the 1 January 1951 temporal limit stated in the first line of Article 1(A)(2) which led to the preparation of the 1967 Protocol. In its preamble the Contracting States recalled that limit, stated that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may...