Daniel Martin Butler v. Attorney General and Refugee Status Appeals Authority

Court of Appeal, Wellington

Treaties - Domestic incorporation - Whether in the absence of legislation the Executive can change the law by entering into treaties - Whether desirable to enact legislation in respect of refugee status determination procedures

Treaties - Treaty interpretation - Status of UNHCR Handbook

Judicial review - Grounds of challenge in the Court of Appeal markedly different from those argued in the High Court - Whether new grounds should be considered

Judicial review - Whether question of error of law to be assessed by reference to the law at the time the tribunal made the decision or at the time of hearing the application for review

Judicial review - Refugee status determination procedures - Whether decisions of Refugee Status Appeals Authority reviewable - Effectiveness of RSAA decision in respect of immigration status

Refugee definition - State protection - Whether central to definition of refugee - True object of Convention

Relocation - Internal flight alternative - Whether tribunal commits error of law in not separately addressing the reasonableness element if no such element presented as arising from the facts

Relocation - Whether reasonableness element a stand alone test - Relevance of social, economic and political circumstances of the application, including the circumstances of members of the family

Evidence - Burden of proof - Whether refugee claimant has the burden of establishing the elements of the claim

The appellant, a married man with two children aged 16 and 15, was born in Belfast and was a citizen of both the United Kingdom and of the Republic of Ireland. While on bail pending appeal against conviction and an 18 month sentence on a charge of suspicious possession of ammunition, he travelled to New Zealand with one of his sons and with his de facto pregnant partner. His wife and second son joined him later. On 30 August 1991 he applied for refugee status claiming that if he returned home he risked being murdered as an alleged informer by the Irish People's Liberation Organization (IPLO), and he also said he feared persecution by the Royal Ulster Constabulary (RUC).

The application for refugee status was declined by the Refugee Status Branch (RSB) on 10 March 1992 and the appeal to the Refugee Status Appeals Authority (RSAA) was dismissed on 14 December 1992. The RSAA found that the anticipated harm amounted to persecution for a Convention reason, namely political opinion, but two of the three RSAA members held that the fear of persecution was well-founded only in relation to the IPLO. The remaining member found that the fear of persecution was well-founded in relation to the RUC as well. The appeal, however, failed because all members agreed that the appellant could be confined safely in prison in Northern Ireland (given that he had yet to serve the 18 month sentence) and that the real chance of persecution existed only if he were to thereafter remain in Northern Ireland. They all considered that there was no real chance were he to go to Great Britain at the end of the sentence. The majority also found that he could safely relocate to the Republic of Ireland.

Before the Court of Appeal it was submitted that the RSAA had not in the relocation context, considered the reasonableness of relocation to another part of the country, nor had it in addressing the reasonableness issue, taken into account the rights in respect 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. In addition, subsequent to the dismissal of the appeal, the RSAA had in a decision given in March 1995 held that relocation (or the internal flight alternative) turns on two issues:

(a)  Can the individual genuinely access domestic protection which is meaningful?

(b)  Is it reasonable, in all the circumstances to expect the individual to relocate?

For the appellant it was argued that while the two-step test was not available in 1992, natural justice required that the appellant now be entitled to the benefit of the later development of the law.

Held:

1.   While the grounds for the challenge to the RSAA's decision were markedly different from those argued in the High Court, the issue was a narrow one of law relating to the definition of "refugee" in the Refugee Convention and Protocol. As well, the importance to the appellant and his family of the decision to execute (or not) the removal warrant he faced and the possibly grave consequences of that action led the court to consider the new grounds (see [1999] NZAR 205, 207).

2    A person claiming refugee status has the burden of establishing the elements of the claim. That rule should, however, not be applied mechanically. Those making a decision which may put an individual's right to life at risk and courts reviewing any such decision have a special responsibility to see that the law is complied with (see [1999] NZAR 205, 213).

R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514 (HL) applied

3    Before the RSAA neither the appellant's evidence nor his submissions had raised or addressed the issue of the unreasonableness or harshness of relocation. The focus of his case had been on the issue of protection. In the circumstances it could not be said that the RSAA had committed an error of law in not separately addressing a distinct reasonableness element. No such element had been presented to it as arising from the facts. This was not the kind of case when either the law or the factual situation before the RSAA required it of its own motion to take up any such additional element (see [1999] NZAR 205, 215).

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, 270-271, 280 (Black CJ and Whitlam J) (FC:FC) referred to

4.   An application for review on the ground that a body has made an error of law would seem by its very nature to require that the assessment be made by reference to the law of the time (as compared with an appeal by way of rehearing where the evolving law can be invoked), but such an approach in the present context might be thought to be technical. Accordingly, the matter of interpretation would be addressed directly (see [1999] NZAR 205, 216).

5.   Central to the definition of "refugee" is the basic concept of protection, namely the protection accorded (or not) by the country of nationality or, for those who are stateless, the country of habitual residence. If there is a real chance that those countries will not provide protection, the world community is to provide surrogate protection either through other countries or through international bodies. The lynch-pin is the State's inability to protect. The true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people when fear of persecution is in reality well-founded (see [1999] NZAR 205, 216-217).

Canada (Attorney General) v Ward [1993] 2 SCR 689, 709 (SC:Can) and R v Secretary of State for the Home Department, Ex parte Sivakumaran [1989] AC 958, 1000 (HL) applied

6.   On the issue of relocation, the various references to and tests for "reasonableness" or "undue harshness" must be seen in context, or against the backcloth that the issue is whether the claimant is entitled to the status of refugee. It is not a stand alone test, authorizing an unconfined inquiry into all the social, economic and political circumstances of the application including the circumstances of members of the family. The test is sharply different from the humanitarian tests provided for in the Immigration Act, ss 63B and 105. It does not in particular range widely over the rights and interests in respect of the family: the refugee inquiry is narrowly focused on the persecution and protection of the particular claimant. In no case to which the court was referred were international obligations in respect of the family seen as being linked to the definition of refugee. While family circumstances might be relevant to the reasonableness element, there was no basis for such a link on the facts of the present case. In addition, at the time of the decision of the RSAA, New Zealand had not become bound by the Convention on the Rights of the Child (see [1999] NZAR 205, 217).

Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589, 598 (FC:CA) and R v Secretary of State for the Home Department, Ex parte Robinson [1997] 3 WLR 1162; [1997] 4 All ER 210 (CA) referred to

7.   Rather than being seen as free-standing, the reasonableness test in the relocation context must be related to the primary obligation of the country of nationality to protect the claimant. Meaningful national state protection which can be genuinely accessed requires provision of basic norms of civil, political and socio-economic rights. It is not a matter of a claimant's convenience or of the attractiveness of the place of relocation. More must be shown. The reasonableness element must be tied back to the definition of "refugee" set out in the Convention and to the Convention's purposes of original protection or surrogate protection for the avoidance of persecution. The relocation element is inherent in the definition; it is not distinct. The question is whether, having regard to those purposes, it is unreasonable in a relocation case to require claimants to avail themselves of the available protection of the country of nationality (see [1999] NZAR 205, 218).

Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589, 598-599 (FC:CA) referred to

8.   It followed that there was no error of law in the RSAA's determination. Its members did include a reasonableness element in their decisions that the appellant was not a refugee within Article 1A(2) of the Convention, in a manner which was appropriate in the circumstances of the appeal. As well, there was no basis arising from those circumstances and the definition of "refugee" for an argument that the rights and interests of the family as referred to in the relevant international texts had to be considered (see [1999] NZAR 205, 218).

Observations:

1.   As to the reviewability of decisions of the RSAA, the following matters were noted:

(a)  The non-statutory powers exercised in cases cited in argument appear to have had legal effect under the law of the country in question - for instance by way of the exercise of the prerogative to grant a pardon, or of the power to grant compensation, or to recognize (or not) the bargaining power of a trade union, or to approve or not a proposed commercial transaction for stock exchange purposes. By contrast, the RSAA determination was not in law effective in respect of immigration status (see [1999] NZAR 205, 218).

Burt v Governor-General [1992] 3 NZLR 672 (CA) and Electoral Commission v Cameron (1997) 10 PRNZ 440, 447-448 (CA) referred to

(b)  While the entering into a treaty is the exercise of a prerogative power and some prerogative powers are subject to judicial review, the carrying out of its obligations might or might not involve prerogative powers; legislative or general common law powers might be used. It is to be noted that while s 40 of the Immigration Act 1964 expressly saved the prerogative, there is no such provision in the Immigration Act 1987 (see [1999] NZAR 205, 219).

(c)  If the courts can consider applications for review in cases such as this, the basic principle that the executive cannot change the law by entering into treaties in the absence of securing any necessary legislative change would appear to be avoided (see [1999] NZAR 205, 219).

New Zealand Airline Pilots' Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) referred to

2.   Legislation, such as that enacted in Australia, Canada and the United Kingdom - or in New Zealand in respect of other immigration matters - would remove any doubts about reviewability and could be expected as well to regulate aspects of the courts' powers, for instance by way of rights of appeal to them. Legislation would also (as with the statutory immigration tribunals) provide binding rules relating to the appointment, status, tenure and protection of the members of the tribunal; their powers in respect of the calling of evidence; the protection of parties and witnesses; the status of the RSB within the process; the public or private nature of its procedures; time limits and other aspects of the tribunal's procedures; and its independent servicing. There are also problems of the type indicated in the judgment of the court given during the Gulf War in D v Minister of Immigration [1991] 2 NZLR 673 (CA) and addressed, although not expressly by reference to refugees, by Parliament later that year, Immigration Amendment Act 1991, s 38. Legislation might in addition provide for the cessation of refugee status. The residence permit provisions of the Immigration Act 1987 cannot be matched with that aspect of the Convention definition (see [1999] NZAR 205, 219).

3.   While the court had no reason at all to doubt that the RSAA had exercised its functions with independence and judgment notwithstanding its lack of legislative basis, if there was good reason for other immigration tribunals to be established by legislation, there was at least equal reason in the case of the RSAA (see [1999] NZAR 205, 220).

4.   The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status is often referred to in judgments but sometimes caution is expressed. The role of subsequent State practice in the interpretation of a treaty is addressed in the Vienna Convention on the Law of Treaties 1969, Article 31(3)(b) (see [1999] NZAR 205, 214).

Canada (Attorney General) v Ward [1993] 2 SCR 689, 713-714 (SC:Can) and Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379, 392; 87 ALR 412, 420 per Mason CJ (HCA) referred to.

Appeal dismissed. No order for costs

Other cases mentioned in judgment

Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA)

R v Home Secretary, ex parte Ikhalk (16 April 1997) (CA)

R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg [1994] QB 552

Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347

D v Minister of Immigration [1991] 2 NZLR 673 (CA)

Counsel

R E Harrison QC for the appellant

E D France and C Geiringer for the first respondent

Solicitors for the appellant: Recordon & Co (Auckland)

Solicitors for the first respondent: Crown Law Office (Wellington)

[Editorial note: One of the difficulties faced by the Court of Appeal was the long delay between the dismissal of the appeal by the RSAA and the hearing in the Court of Appeal. The substantive hearing of the judicial review proceedings did not take place in the High Court until 18 July 1997, with judgment being delivered on 29 July 1997. See Butler v Attorney-General (High Court, Auckland, M26/93, 29 July 1997, Robertson J). The issue of delay is addressed by Robertson J at pp 2-5 and 16-17. The hearing in the Court of Appeal took place on 30 September 1997, the appeal being dismissed on 13 October 1997.

The decision of the RSAA on relocation referred to in the Court of Appeal judgment is Refugee Appeal No. 523/92 Re RS (17 March 1995). This was at the time the principal decision of the RSAA on relocation. For torture victims and relocation see Refugee Appeal No. 135/92 Re RS (18 June 1993).

Prior to the decision of the Court of Appeal in Butler, the RSAA preferred the expression "relocation" because, as stated in Refugee Appeal No. 523/92 Re RS (17 March 1995) at 29, to pose any question postulated on an internal flight alternative is to ask the wrong question. The question is not one of flight, but of protection and is to be approached fairly and squarely in terms the refugee definition which specifically emphasizes the protection issue:

"...is unable or ... is unwilling to avail himself of the protection of that country."

The term "relocation" has also been adopted by the Federal Court of Australia in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, 269, 278, 280 (FC:FC) and by the Council of the European Union in Para 8 of the Joint Position 96/196 JHA defined by the Council on the Basis of Article K.3 of the Treaty on European Union on the Harmonized Application of the Definition of the Term "Refugee" in Article 1 of the Geneva Convention of 28 Jul 1951 Relating to the Status of Refugees (Council of Ministers, Brussels, 4 Mar 1996), the text of which is reproduced in Plender, ed, Basic Documents on International Migration Law (2nd rev ed, Martinus Nijhoff International 1997) at 519. However, the jurisprudence in this area is evolving as decision-makers search for a principled basis for denying refugee status to persons at risk of persecution for a Convention reason in part, but not all, of their country of origin. For a collective study of relevant norms and state practice, reference should be made to The Michigan Guidelines on the International Protection Alternative (April 1999) These Guidelines were formulated by the First Colloquium on Challenges in International Refugee Law convened by the Program in Refugee and Asylum Law, the University of Michigan Law School, April 9-11, 1999 and are to be found at the Reference page of this web site. Subsequently, in Refugee Appeal No. 71684/99 (29 October 1999) the RSAA re-examined the New Zealand jurisprudence in the light of both Butler and the Guidelines. It found that the Guidelines properly reflect and summarise the principles to be applied in New Zealand when considering the issue of internal protection. The RSAA noted that the term "relocation" was to be abandoned in favour of the term "internal protection" as the latter term emphasises that the central core of the inquiry is protection from persecution. The full text of the decision in Refugee Appeal No. 71684/99 (29 October 1999) is to be found at the CaseSearch page of this web site.

Mrs Butler did not herself apply for refugee status but she later brought proceedings challenging the decision of the Removal Review Authority dismissing her appeal against a removal order served by the New Zealand Immigration Service. Her challenge was unsuccessful. See Butler v Removal Review Authority [1998] NZAR 409 (Giles J) and Butler v Removal Review Authority [1999] NZAR 68 (Wild J).

As to the concerns expressed by the Court of Appeal in Observation No. 2, the New Zealand refugee determination procedures were subsequently placed on a statutory footing by the Immigration Amendment Act 1999, s 40 which inserted a new Part VIA in the Immigration Act 1987. The RSAA is now a statutory tribunal with the powers of a Commission of Inquiry. See s 129N and Schedule 3C, cl 7.

The commencement date for the new Part VIA was 1 October 1999. While the provisions of the Refugee Convention have not (with one exception) been incorporated into New Zealand domestic law, s 129D requires that in carrying out their functions under Part VIA, refugee status officers and the RSAA are to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention. The non-refoulement obligations contained in Article 32 and 33 have, however, been incorporated into domestic law by s 129X. For an overview of the changes introduced by the Immigration Amendment Act 1999, see Haines, Immigration and Refugee Law: Recent Developments (August 1999). This paper is to be found at the Reference page of this web site.

In the light of the changes made to the removal procedures by the Immigration Amendment Act 1999, the reference in the judgment of the Court of Appeal to s 63B of the Immigration Act 1987 should now be read as a reference to s 47 of the Act as amended.]