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

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,William Young,Glazebrook,Arnold,O'Regan JJ
Judgment Date20 July 2015
Neutral Citation[2015] NZSC 107
Date20 July 2015
Docket NumberSC 7/2015

[2015] NZSC 107

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 7/2015

BETWEEN
Ioane Teitiota
Applicant
and
The Chief Executive of The Ministry of Business, Innovation And Employment
Respondent
Counsel:

M J Kidd for Applicant

C A Griffin and M F Clark for Respondent

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.

The issues were: whether the Court had jurisdiction to grant leave; and whether New Zealand's refugee law extended protection to a person who faced environmental displacement.

Held: The application raised an issue as to the Court's jurisdiction to grant leave in terms of the IA and the Supreme Court Act 2003 (SA). The same issue was raised in Guo v Minister of Immigration, in which judgment had already been delivered. It was held that there was nothing in s245 IA which specifically restricted the jurisdiction of the Supreme Court in respect of a decision of the CA under that section. Accordingly, s 245 did not fall within the provisions of s7(a) SA (appeals unless an enactment … makes provision to the effect that there is no right of appeal).

While s7(b) SA (Appeals against decisions of Court of Appeal in civil proceedings unless decision is a refusal to give leave or special leave to appeal to the Court of Appeal) meant that the Court did not have jurisdiction to entertain an appeal from a decision of the CA denying leave to appeal to itself, and s8(b) (Appeals against decisions of the High Court unless decision is a refusal to give leave or special leave to appeal to the High Court or the Court of Appeal) meant that the Court did not have jurisdiction to hear an appeal from a decision of the HC refusing leave to appeal to itself or the CA, there was no provision which stated explicitly that the Court did not have jurisdiction to hear an appeal from a decision of the Court of Appeal refusing leave to appeal to the HC. In those circumstances the Court did have jurisdiction.

Section 245 IA had since been amended, effective 7 May 2015, to include a new s 245(1A): “A decision by the Court of Appeal to refuse leave to appeal to the High Court is final.” See the Immigration Amendment Act 2015, s 61(1). The section was referred to as it was when this case was argued. Accordingly, the critical question was whether this was a case in leave should be granted.

The key issue in T's application was whether New Zealand's refugee law extended protection to a person who faced environmental displacement and the operation of a number of International Conventions, most importantly relating to the care of his three children under the age of six who were born in New Zealand.

In the particular factual context of this case the questions identified raised no arguable question of law of general or public importance. In relation to the Refugee Convention, while Kiribati undoubtedly faced challenges, T did not, if returned, face “serious harm” and there was no evidence that the Government of Kiribati was failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it could. Nor did the provisions of the ICCPR relied on have any application on these facts. Finally, there was no risk of a substantial miscarriage of justice.

Both the Tribunal and the HC emphasised their decisions did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction. The decision on this application should not be taken as ruling out that possibility in an appropriate case.

Application for leave to appeal dismissed.

JUDGMENT OF THE COURT
  • 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.

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 20095 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...

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