Teitiota v Chief Executive

JurisdictionNew Zealand
CourtCourt of Appeal
JudgePriestley J,Stevens,Wild and Miller JJ
Judgment Date08 May 2014
Date08 May 2014

New Zealand, High Court.

Court of Appeal.

(Priestley J) (Stevens, Wild and Miller JJ)

Chief Executive of the Ministry of Business, Innovation and Employment1

Environment Climate change Rising sea levels Threat to certain States Nature of international law obligations Whether person from threatened State entitled to refugee status

Human rights Economic and social rights Climate change Whether requiring person to return to country threatened by climate change would violate human rights

Aliens Refugees United Nations Convention relating to the Status of Refugees, 1951 Article 1A(2) Definition of a refugeeRecognition as a refugee Meaning of persecution Whether climate change provides grounds for recognition as a refugee Indiscriminate impact of environmental change Environmental degradation and refugee status Human agency and climate change The law of New Zealand

Summary:3The facts:Ioane Teitiota (the applicant) and his wife arrived in New Zealand from Kiribati in 2007 and remained in New Zealand after the expiration of their permits to stay in New Zealand. The three children of the applicant and his wife were born in New Zealand. However, none of the applicant's children were entitled to New Zealand citizenship. After the expiration of his permit, the applicant was apprehended and he applied for refugee status and, or alternatively, protected person status. A Refugee and Protection Officer declined to grant the applicant refugee status or protected person status.

The applicant appealed to the Immigration and Protection Tribunal (the Tribunal) in respect of the decision of the Refugee and Protection Officer

rendered against him. The Tribunal found that the applicant was not entitled to recognition as a refugee under the United Nations Convention relating to the Status of Refugees, 1951 (the Refugee Convention), or as a protected person under domestic New Zealand law, on the basis of environmental change in Kiribati caused by rising sea levels associated with climate change

The applicant appealed against the decision of the Tribunal under section 245(1) of the Immigration Act 2009.4 The applicant contended that he was a refugee within the ambit of the Refugee Convention or the protected person jurisdiction of New Zealand, because of changes in the environment of Kiribati due to rising sea levels, which the applicant submitted were associated with climate change.

The Tribunal found against the applicant and held that he was not entitled to refugee status or protected person status. The Tribunal held that, in respect of the applicant's submission that he was an internally displaced person, this was insufficient for the applicant to meet the requirements of the Refugee Convention. The Tribunal further found that there was no evidence that the applicant faced a real chance of persecution if he returned to Kiribati. Further, the Tribunal made findings that the applicant would not be deprived of the right to life, contrary to Article 6 of the International Covenant on Civil and Political Rights, 1966 (ICCPR), or the right to adequate food, clothing and housing, protected under Article 11 of the International Covenant on Economic, Social and Cultural Rights, 1976 (ICESCR), if the applicant was returned to Kiribati.

The applicant raised six questions before the New Zealand High Court and the Court of Appeal of New Zealand that it submitted were errors of law by the Tribunal. First, the applicant submitted that the term refugee included refugees from climate change and its effects and that the Tribunal had erred by referring to such persons as sociological refugees. Secondly, the applicant submitted that he was not disqualified from claiming refugee status because the consequences of climate change affected all people in Kiribati indiscriminately. Thirdly, the applicant submitted that the Tribunal failed to consider indirect human agency, which included the emission of greenhouse gases that affect sea levels and weather patterns inherent in climate change. Fourthly, the applicant argued that the Tribunal had failed to consider Articles 2(3)(a) and 24(1) of the ICCPR, as these might apply to the applicant's children, and Articles 24(1) and 2(a), (b) and (c) and 27 of the United Nations Convention on the Rights of the Child (UNCROC) in respect of minimum standards relating to the welfare of

the applicant's children. Fifthly, the applicant submitted that the Tribunal did not consider the applicant's children separately from the applicant, with respect to the effects of deprivation of food and water on the applicant, and did not consider that the applicant's children would suffer serious harm if sent to Kiribati, as the children were born in New Zealand and had never experienced the conditions in Kiribati. Sixthly, the applicant submitted that the Tribunal erred in its findings of relevant facts that the applicant's supplies of food and water were adequate, as there was evidence to support that the applicant and his children would face severe difficulties due to overcrowding and the future effects of climate change

Held (by the High Court):The applicant's claim was dismissed.

(1) A person who sought to escape the effects of climate change was not a person to whom Article 1A(2) of the Refugee Convention applied. The applicant would not be subjected to individual persecution were he to return to Kiribati and would not suffer a violation of basic human rights, including the right to life under Article 6 of the ICCPR and the right to adequate food, clothing and shelter under Article 11 of the ICESCR. Even if the international community was a persecutor for the purposes of the Refugee Convention, the consequences of climate change were indiscriminate and not based on the Refugee Convention grounds of persecution. Therefore, Article 1A(2) of the Refugee Convention did not apply to the applicant (paras. 545).

(2) A lower standard of living did not constitute serious harm for the purposes of the Refugee Convention (para. 56).

(3) The Tribunal had considered the impact of indirect human agency on promoting rising sea levels and changing weather patterns. The Tribunal's finding that the requirement of some form of human agency does not mean that environmental degradation can never create pathways into the Refugee Convention was not to be overturned (paras. 578).

(4) The issues raised by the applicant in his fourth and fifth submissions in respect of UNCROC and the ICCPR did not give rise to questions of law (paras. 5960).

(5) The Tribunal's findings of fact in respect of the supplies of food and water for the applicant and his family, were he to return to Kiribati, and the potential difficulties that the applicant's children might experience if they were sent to Kiribati were questions of fact and not of law (paras. 612).

The applicant appealed to the Court of Appeal.

Held (by the Court of Appeal):The appeal was dismissed.

(1) The effects of climate change were insufficient to bring the applicant within the definition of refugee in Article 1A(2) of the Refugee Convention. For a person to qualify as a refugee under this provision, there had to be a real prospect of persecution on one of the grounds in the Convention. The standard of risk of persecution was objective. The effect of climate change on the applicant, and on the population of Kiribati, did not bring the applicant within the Refugee Convention. Were he to return to Kiribati, he would not be subject to individual persecution or suffer a sustained and systemic violation of his basic human rights (paras. 1425).

(2) The applicant's position with respect to the effects of climate change was the same as that of the entire population of Kiribati (paras. 289).

(3) The Tribunal had considered the contribution of humans towards rising sea levels and climate change generally. This ground was repetitive of the first two grounds raised by the applicant and that the question was not open for serious argument (paras. 301).

(4) The fourth and fifth grounds submitted by the applicant did not raise any questions of law. Each person who sought recognition as a refugee or protected person was required to make an individual claim pursuant to section 133 of the Immigration Act. As the Tribunal had considered only the claim of the applicant, and no claims had been filed in respect of the applicant's children, this did not give rise to an error of law or an issue of general public importance (paras. 325).

(5) The Tribunal's findings of fact were not erroneous. The Tribunal had been entitled, on the evidence before it, to find that the applicant and his family on return to Kiribati could resume their prior subsistence life with dignity (paras. 367).

The text of the judgment of the Court of Appeal commences at p. 560. The following is the text of the judgment of the High Court:


Priestley J


1. The immediate aftermath of the Second World War presented the then international community with a number of challenges. One such challenge was to provide some mechanism for the protection of human beings who were victims of persecution.

2. The League of Nations, which some hoped would prevent or curtail warfare by collective security arrangements, had clearly failed. The Axis power in Europe, spearheaded by Hitler's Third Reich, had systematically persecuted and killed millions of people, singling them out for concentration camps upon the grounds of their ethnicity, race, or religion.

3. The defeat of Fascism in 1945 did not end persecution. Riding into central European countries behind the tanks of the Red Armies came communist regimes. These governments, nurtured by the Soviet Union (which had already tipped its hand with the execution of Polish middle class leaders and army officers in the forests at Katyn) set about imposing MarxistLeninist regimes which were to blight the lives of millions of people for two generations. Class enemies were persecuted by...

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