Ioane Teitiota v The Chief Executive of The Ministry of Business, Innovation and Employment

• Jurisdiction: New Zealand
• Judge: Elias CJ,William Young,Glazebrook,Arnold,O'Regan JJ
• Judgment Date: 20 July 2015
• Neutral Citation: [2015] NZSC 107
• Docket Number: SC 7/2015
• Court: Supreme Court
• Date: 20 July 2015

BETWEEN

Ioane Teitiota

Applicant

and

The Chief Executive of The Ministry of Business, Innovation And Employment

Respondent

[2015] NZSC 107

Court:

Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 7/2015

IN THE SUPREME COURT OF NEW ZEALAND

Application for leave to appeal against the Court of Appeal's (CA) decision upholding a decision of the Immigration and Protection Tribunal, that the applicant could not bring himself within the Refugee Convention or New Zealand's protected person jurisdiction on the basis that his homeland, Kiribati, was suffering the effects of climate change — the Tribunal accepted that the applicant's concerns about Kiribati and its future were justified but said applicant was neither a refugee within the meaning of the Refugee Convention nor a protected person within the meaning of the International Covenant on Civil and Political Rights — whether the Supreme Court had jurisdiction to grant leave to appeal the CA's refusal to grant leave to appeal under s245 Immigration Act 2009 (Appeal to High Court on point of law by leave) — whether New Zealand's refugee law extended protection to a person who faced environmental displacement.

Counsel:

M J Kidd for Applicant

C A Griffin and M F Clark for Respondent

• A The application for leave to adduce further evidence is granted.

• B The application for leave to appeal is dismissed.

• C There is no order for costs.

JUDGMENT OF THE COURT

REASONS

Introduction

1 The applicant, Mr Teitiota, seeks leave to appeal against a decision of the Court of Appeal under's 245 of the Immigration Act 2009 refusing him leave to appeal to the High Court against a decision of the Immigration and Protection Tribunal. 1 The Tribunal had found that Mr Teitiota could not bring himself within

either the Refugee Convention or New Zealand's protected person jurisdiction on the basis that his homeland, Kiribati, was suffering the effects of climate change. 2

Application for leave to adduce further evidence

2 The applicant, Mr Teitiota, seeks leave to adduce further evidence, in particular:

• (a) The decision of officials of the Ministry of Business, Innovation and Employment on the applications of Mr Teitiota's wife and children for refugee and/or protected person status. Their applications were declined. 3

• (b) The Synthesis Report of the Fifth Assessment Report of the Intergovernmental Panel on Climate Change published in November 2014.

3 As the material is in the nature of updating evidence, we grant leave for its admission.

Factual background

4 Mr Teitiota and his wife came to New Zealand from Kiribati in 2007 and remained after their permits expired in October 2010. Accordingly, they are in New Zealand unlawfully. Although their three children were born in New Zealand, none is entitled to New Zealand citizenship. 4

5 After being apprehended following a traffic stop, Mr Teitiota applied for refugee status under's 129 of the Immigration Act 2009 5 and/or protected person status under's 131. 6 No applications were made by his wife and children at that time. The basis for Mr Teitiota's application was that his homeland, Kiribati, is facing steadily rising sea water levels as a result of climate change. The fear is that, over time, the rising sea water levels and the associated environmental degradation will force the inhabitants of Kiribati to leave their islands.

6 A Refugee and Protection Officer declined Mr Teitiota's application. Mr Teitiota then appealed against the Officer's decision to the Immigration and Protection Tribunal. Although the Tribunal accepted that Mr Teitiota's concerns about Kiribati and its future were justified, it dismissed his appeal, holding that he was neither a refugee within the meaning of the Refugee Convention nor a protected person within the meaning of the International Covenant on Civil and Political Rights (ICCPR). 7 Mr Teitiota then sought leave from the High Court to appeal against the Tribunal's decision on a question of law, identifying six possible questions of law. Priestley J declined that application, holding that none of the six questions raised an arguable question of law of general or public importance. 8 Following that, Mr Teitiota sought leave from the Court of Appeal to appeal to the High Court, again by reference to the six questions (slightly reformulated). That application was also refused, the Court of Appeal finding that none of the six questions was sufficient to justify the grant of leave. 9

7 Mr Teitiota now seeks leave to appeal to this Court against the Court of Appeal's decision, again on the basis of the six questions. If leave were granted and

the appeal succeeded, Mr Teitiota would obtain leave to appeal to the High Court against the Tribunal's decision

Jurisdiction

8 The application raises an issue as to the Court's jurisdiction to grant leave in terms of the Immigration Act and the Supreme Court Act 2003. The same issue was raised in Guo v Minister of Immigration, in which judgment has already been delivered. 10 We heard argument from Mr Kidd on the jurisdiction issue immediately before hearing jurisdiction argument in Guo. In the circumstances, we will not repeat all that we said in Guo on the topic of jurisdiction, but rather will summarise the position.

9 In Guo, we set out the relevant provisions of the Immigration Act 11 and of the Supreme Court Act. We concluded that there was nothing in s 245 of the Immigration Act which specifically restricted the jurisdiction of the Supreme Court in respect of a decision of the...