High Court Judgment Ahmed Zaoui VS Hon. Greig

UNDER :::::::::::::the Judicature Amendment Act 1972
AND UNDER::::::::::::the Declaratory Judgments Act 1908 and/or Part 7 of the High Court Rules

IN THE MATTER OF:::: Part IVA of the Immigration Act 1987
AND IN THE MATTER OF::Section 27(1) of the New Zealand Bill of Rights Act 1990

BETWEEN::::::::::::::AHMED ZAOUI Plaintiff

AND::::::::::::::::::THE HONOURABLE LAURENCE GREIG First Defendant

AND::::::::::::::::::THE ATTORNEY-GENERAL Second Defendant

Hearing::::::::::18 and 19 March 2004

Coram:::::::Salmon J & Harrison J

Appearances::::Rodney Harrison QC, Richard McLeod and Deborah Manning for Plaintiff
Jillian Mallon and Glenn Shewan for First Defendant
Karen Clark for Second Defendant

Judgment::::::31 March 2004

SOLICITORS

McLeod & Associates (Auckland) for Plaintiff
Bell Gully (Wellington) for First Defendant
Crown Law Office (Wellington) for Second Defendant

Introduction

[1] Ahmed Zaoui is an Algerian national. He arrived at Auckland International Airport on 4 December 2002 on a false passport which he had damaged earlier. He was, and has since been, detained in custody. He applied immediately but unsuccessfully to the Department of Immigration for refugee status. Mr Zaoui lodged an appeal against the Department’s refusal with the Refugee Status Appeals Authority (“RSAA” or “the Authority”).

[2] A number of relevant events have occurred over the period since then. In March 2003 the Director of Security certified to the Minister of Immigration that Mr Zaoui was a security risk. The Director later confirmed that the certificate was based in part upon Mr Zaoui’s alleged association with known terrorist groups. The Minister made a preliminary decision to rely upon it and gave notice to Mr Zaoui accordingly. Mr Zaoui then applied to the Inspector-General of Intelligence and Security, the Honourable Laurence Greig, to review the Director’s decision to make the certificate.

[3] In August 2003 the RSAA allowed Mr Zaoui’s appeal from the Department of Immigration decision and granted him refugee status. Shortly afterwards the Inspector-General issued an interim or interlocutory ruling on Mr Zaoui’s application to review the Director’s decision. The ruling was adverse to Mr Zaoui. He applied to this Court for judicial review of the Inspector-General’s ruling.

[4] While his review of the Director’s decision and the High Court’s review of his interim ruling were pending, the Inspector-General was interviewed by a journalist employed by the New Zealand Listener magazine. The interview, which was tape recorded, traversed both the Inspector-General’s statutory role and Mr Zaoui’s case. The Listener subsequently published an article based upon the interview and posted a transcript of the recording on its website. The Listener article attracted considerable media and public interest.

[5] Among other things, the Inspector-General made this statement in the interview:

…We certainly don’t want – I’m not talking as the I-G – I’m talking just personally as a New Zealander. We don’t want lots of people coming in on false passports that they’ve thrown down the loo on the plane and saying, “I’m a refugee, keep me here”. And perhaps having some association elsewhere. I understand that our passport is very desirable because it’s accepted almost without question all over the world. And if we lost that, then you and I would have great, much greater difficulty getting into America or Germany or wherever. So there’s a number of competing interests which the government has to take into account, I think. And I think we’ve got to take into account as well – I’m not suggesting we shouldn’t have refugees, because I think everybody should have refugees – but you’ve got to watch it.

[6] Later the Inspector-General responded to a request by a television journalist to comment upon his knowledge of an allegedly missing videotape of an interview conducted earlier by the Security Intelligence Service with Mr Zaoui. He spoke twice with the Director and once with the Prime Minister’s media adviser about his discussion with the journalist, and then to a reporter employed by the New Zealand Herald on the same subject.

[7] Mr Zaoui’s counsel, Mr Rodney Harrison QC, formally requested the Inspector-General to withdraw and recuse himself from further conducting his review of the Director’s decision. Mr Harrison submitted a comprehensive memorandum to the Inspector-General setting out a number of grounds alleging apparent bias arising from his statements to the Listener journalist. A few days later Williams J delivered a reserved decision in this Court, effectively upholding Mr Zaoui’s challenge to the Inspector-General’s interlocutory ruling.

[8] On 15 January 2004 the Inspector-General delivered a written decision declining Mr Zaoui ’s request that he disqualify himself. Mr Zaoui responded by filing this further application for judicial review of that non-recusal decision, seeking among other things a declaration that the Inspector-General is precluded by reason of apparent bias from further engaging or participating in conducting the review process. The Inspector-General’s statement of defence raised two alternative statutory defences denying the High Court’s jurisdiction. However, his counsel, Ms Jill Mallon, advised us that the Inspector-General abandoned those defences for the purposes of this hearing, without prejudice to his right to raise them elsewhere, because he did not wish to continue with the review process if a reasonable, fair minded and informed observer concluded there was a risk of bias. In that event the Inspector-General would accept that it was appropriate for the Prime Minister to appoint someone else to act in his place.

[9] Our task is to determine Mr Zaoui’s application to review the Inspector-General’s non-recusal decision. First, however, we shall set out in more detail the relevant background events within their statutory framework. In this respect we acknowledge the assistance provided by Williams J’s judgment delivered on 19 December 2003 in reviewing the legislative structure, particularly Part 4A Immigration Act 1987 (all statutory references in this judgment are to the Immigration Act unless otherwise stated). We will then discuss the relevant legal principles before considering the various grounds advanced on behalf of Mr Zaoui to establish the Inspector-General’s apparent bias.

Statutory Framework for Certificate and Review

[10] Part 4A was enacted in 1999. It is headed “Special procedures in cases involving security concerns”. Its express objects are (s 114A):

(a) Recognise that the New Zealand Security Intelligence Service holds classified security information that is relevant to the administration of this Act; and

(b) Recognise that such classified security information should continue to be protected in any use of it under this Act or in any proceedings which relate to such use; and

(c) Recognise that the public interest requires nevertheless that such information be used for the purposes of this Act, but equally that fairness requires some protection for the rights of any individual affected by it; and

(d) Establish that the balance between the public interest and the individual’s rights is best achieved by allowing an independent person of high judicial standing to consider the information and approve its proposed use; and

(e) Recognise that the significance of the information in question in a security sense is such that its approved use should mean that no further avenues are available to the individual under this Act and that removal or deportation, as the case may require, can normally proceed immediately; and thus

(f) Ensure that persons covered by this Act who pose a security risk can where necessary be effectively and quickly detained and removed or deported from New Zealand.

[Emphasis added]

[11] “Classified security information” is defined as follows (s 114B):

… means information about the threat to security, public order, or public interest posed by an identifiable individual which is held by the New Zealand Security Intelligence Service, being information which, in the opinion of the Director, cannot be divulged to the individual in question or to other persons because both—

(a) The information—

(i) Might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the New Zealand Security Intelligence Service; or

(ii) Is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of the Service or of another intelligence and security agency (as defined in section 2 of the Intelligence and Security Committee Act 1996); or

(iii) Has been provided to the New Zealand Security Intelligence Service by the government of any other country or by an agency of such a government, and is information that cannot be disclosed by the Service because the government or agency by which that information has been provided will not consent to the disclosure; and

(b) Disclosure of the information would be likely—

(i) To prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(ii) To prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country or any agency of such a government, or by any international organisation; or

(iii) To prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

(iv) To endanger the safety of any person:

[12] The Director is empowered to issue a security risk certificate to the Minister where he holds classified security information relating to an identifiable individual (s 114D(1)) and he is satisfied that it is:

(b) … credible, having regard to the source or sources of the information and its nature, and is relevant to the relevant security criterion; and

(c) Would mean, when applying a relevant security criterion to the situation of that person in light of that information, that the person meets the criterion.

[13] As noted, the Director issued his certificate for Mr Zaoui on 20 March 2003. It was the first such certificate ever issued by him under Part 4A. The Director confirmed his satisfaction that the information met the statutory criteria, in s 114C(6) namely that:

(a) [Mr Zaoui’s] continued presence in New Zealand constitutes a threat to national security in terms of [s 72]; and

(b) There are reasonable grounds for regarding [Mr Zaoui] as a danger to [the community] of New Zealand, in terms of Article 33.2 of the Refugee Convention (as defined in [s 2]).

[14] The Minister is entitled to rely on the certificate, in which case its existence is (s 114F(1)):

… evidence of sufficient grounds for the conclusion or matter certified, subject only to a decision of the Inspector-General on a review conducted under section 114I …

[15] A number of consequences follow the Minister’s preliminary decision to rely on the certificate. Effectively they suspend existing administrative processes and require the arrest without warrant of the person to whom the certificate relates (s 114F). However, that person has a right to seek a review by the Inspector-General of the Director’s decision to make the certificate (s 114H(1)). He or she is entitled to legal representation, to access to information about him or her (other than the classified security information), and to make written submissions to the Inspector-General, whether or not he or she also wishes to be heard (s 114H(2)). The person is immune from removal or deportation during this process (s 114H(3)).

[16] On 24 March 2003 the Minister gave notice of her preliminary decision to rely on the Director’s certificate. On 27 March 2003 Mr Zaoui received notice to this effect. He immediately sought the Inspector-General’s review of the Director’s certificate.

[17] The Inspector-General must undertake his review “with all reasonable speed and diligence” (s 114I(3)). His express function is to determine whether (s 114I(4)):

(a) The information that led to the making of the certificate included information that was properly regarded as classified security information; and

(b) That information is credible, having regard to the source or sources of the information and its nature, and is relevant to any security criterion; and

(c) When a relevant security criterion is applied to the person in light of that information, the person in question is properly covered by that criterion –

and thus whether the certificate was properly made or not.

[18] In carrying out the review, the Inspector-General “… may take into account any relevant information that does not itself meet the definition of classified security information” (s 114I(5)). Additionally, for these purposes, he has all the powers conferred upon him by relevant provisions of the Inspector-General of Intelligence and Security Act 1996. Section 19 of that Act regulates his inquiries. Among other things he must permit Mr Zaoui to be heard and represented by counsel and have others give evidence on his behalf as to his record, reliability and character. He is empowered to receive such evidence as he thinks fit, whether admissible in a Court of law or not (s 19(4) and (5)). Furthermore, his inquiry shall be conducted in private (s 19(6)). Additionally, he has wide powers including to summons a person to furnish information and produce documents and to examine any person on oath (s 23(1) and (2)).

[19] Other provisions of the Inspector-General of Intelligence and Security Act are also relevant in the context of this case. Its long title is:

An Act to increase the level of oversight and review of intelligence and security agencies by providing for the appointment of an Inspector-General of Intelligence and Security.

[20] Its specific object provides (s 4):

… for the appointment of an Inspector-General who will assist each Minister who is responsible for an intelligence and security agency in the oversight and review of that intelligence and security agency and who will, in particular,—

(a) Assist the Minister to ensure that the activities of that intelligence and security agency comply with the law; and

(b) Ensure that complaints relating to that intelligence and security agency are independently investigated.

[Emphasis added]

[21] The Inspector-General is appointed by the Governor-General on the Prime Minister’s recommendation following consultation with the Leader of the Opposition (s 5(2)). The appointee must have “… previously held office as a Judge of the High Court of New Zealand”. The Inspector-General’s functions are set out in s 11(1) and include:

(a) To inquire, of the Inspector-General's own motion or at the request of the Minister, into any matter that relates to the compliance by an intelligence and security agency with the law of New Zealand:

(b) To inquire into any complaint by—

(i) A New Zealand person; or

(ii) A person who is an employee or former employee of an intelligence and security agency,—

that that person has or may have been adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency:

(c) To inquire at the request of the Minister or of the Inspector-General's own motion, but subject to the concurrence of the Minister, into—

(i) Any matter where it appears that a New Zealand person has or may have been adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency:

(ii) The propriety of particular activities of an intelligence and security agency:

(d) Without limiting the generality of paragraph (a) of this subsection, to review from time to time the effectiveness and appropriateness of the procedures adopted by the New Zealand Security Intelligence Service to ensure compliance with the provisions of sections 4A [to 4G] of the New Zealand Security Intelligence Service Act 1969 in relation to the issue and execution of interception warrants: …

[22] Part 4A of the Immigration Act provides that the Inspector-General’ s decision on review of a security risk certificate must be accompanied by reasons (s 114J(4)). If the Inspector-General decides that the certificate was properly made, the Minister must make a final decision within three working days whether or not to rely upon the certificate and deport the person (s 114K(1)); if he decides that the certificate was not properly made, the person must be released from custody immediately and normal immigration processes resume (s 114J(2)). The person has a right of appeal to the Court of Appeal on the ground that an adverse decision is erroneous in point of law but only with leave (s 114P).

[23] We accept Mr Harrison’s submission that the purpose of Part 4A is to substitute in the first instance the Inspector-General’s review procedure for direct curial review of the certificate’s merits. Williams J described the Inspector-General’s position as ‘unique in New Zealand law’ (para 64). While it is undoubtedly quasi judicial, Williams J was of the view that it is ‘plainly far from a normal judicial role’ (para 94). The Inspector-General must determine the critical threshold issues of the extent to which information is properly within the security classification and Mr Zaoui’s consequential right of access to it. Unlike almost any other judicial process, the party most affected by information used adversely to his position is disqualified from access to it unless the Inspector-General rules otherwise.

[24] The Inspector-General is appointed to perform the critical function of protecting Mr Zaoui’s rights (s 114A(c)) while upholding the necessary balance between public and private interests (s 114A(d)). Mr Harrison submitted that the process leaves Mr Zaoui with no choice but to place blind trust in the Inspector-General’s performance of his statutory function. We would describe the relationship as one of complete reliance in this context, reinforcing the importance of the Inspector-General’s independence in performing his statutory functions.

Subsequent Events

[25] On 1 August 2003 the RSAA delivered its decision on Mr Zaoui’s appeal. It concluded that he was a refugee within the meaning of Article 1A(2) Refugee Convention and granted him refugee status. The Authority was satisfied there were no serious reasons for considering that, first, Mr Zaoui is a member of an armed group or has committed or participated in or directed any act of terrorism, violence or other criminal conduct or, secondly, he had committed crimes against humanity or serious non-political crimes. Accordingly, he was not excluded from the Refugee Convention’s protection.

[26] The Inspector-General convened conferences with counsel for the purposes of dealing with interlocutory or procedural issues relating to Mr Zaoui’s application. Mr Harrison sought rulings that Mr Zaoui was entitled to substantially more information than the Director was prepared to disclose based upon settled principles of natural justice or procedural rights recognised by statute (ss 8, 9 and 27(1) New Zealand Bill of Rights Act 1990). Additionally or alternatively, he submitted that the Inspector-General was bound to take into account New Zealand’s obligations at international law when considering whether or not the certificate was properly made. Mr Harrison referred to this substantive dimension as the human rights issue but did not seek an interim ruling upon it.

[27] However, in a decision delivered on 6 October 2003 the Inspector-General ruled against Mr Zaoui on both points. On the natural justice or procedural issue he held that (para 21):

… what is classified information as defined which was taken into account cannot be disclosed to [Mr Zaoui] or anybody. The [Inspector-General] is entitled to receive it and to question the Director and his officers as to its credibility and application to [Mr Zaoui]. But this is the area where the Bill of Right BORA (sic) and the ordinary right of fairness do not apply. The reason as recognised in this legislation by the objects and the procedure under the IGIS Act is that disclosure would jeopardise the operations of the intelligence service and security of New Zealand as a whole.

[Emphasis added]

[28] The Inspector-General recorded that he would take into account the RSAA’s decision. He accepted that he was bound by its finding that Mr Zaoui enjoyed refugee status (para 23).

[29] On the substantive or human rights issue the Inspector-General decided (para 28):

As I have already indicated my view is that the general issues of international jurisprudence are beside the point. My review is to the propriety of the certificate by an examination of the credibility of the relevant classified information and its application to the appropriate criterion as relevant to [Mr Zaoui]. The deportation issue is for the Minister. I am bound to protect the security matters and thus debar [Mr Zaoui] from being aware of them …

[30] Finally, the Inspector-General recorded a 13-step methodology proposed by Mr Harrison and accepted by the Director’s counsel for conducting the substantive review. The Inspector-General concluded by referring to further advice given by the Director about his interpretation of the statutory meaning of “security”, observing (para 37):

In particular he has included both the international wellbeing and the economic wellbeing of New Zealand. I read this to mean that he asserted that on both counts [Mr Zaoui] posed a threat and danger to the security of New Zealand. It seems from my discussion that is not the case. I think that the Director must clarify that and in so doing I believe that he should be able to give some further explanation of his decision in making the certificate and specifying in more detail what aspects of that definition of security are applicable in this case. Of course the requirements of security and the possible prejudice to New Zealand security will limit the extent to which he may go but it seems that some further explanation of the adverse impact thought to require protection could be specified. At least it may be possible to indicate the areas which are excluded from the Director’s reasoning and conclusion.

[31] As noted, Mr Zaoui challenged the Inspector-General’s two principal rulings by applying to this Court for judicial review. His prayer for relief was complex. Williams J distilled it into, first, a request that the Director provide a summary of the allegations underlying his certificate without breaching the statutory prohibition on disclosure of classified information and, second, a declaration that the Inspector-General was legally incorrect in deciding that international human rights instruments and jurisprudence are irrelevant to performance of his function (para 170). The Judge essentially found for Mr Zaoui (para 172). He did, though, express the view that the 13-step methodology proposed by counsel and accepted by the Inspector-General was defective and contrary to the express provisions of Part 4A (paras 81-92).

[32] To return to the chronological narrative, the Inspector-General was interviewed by Mr Gordon Campbell, the Listener journalist, on about 22 November 2003. The interview was about an hour in duration. Mr Campbell’s tape recording was played for us in open Court when the hearing commenced. The interviewer’s questions occupied at least as much time as the Inspector-General’s answers.

[33] Mr Campbell prepared the transcript which the Listener later posted on its website on 6 December 2003. His transcript differed in a number of respects from one later prepared by the Inspector-General’s lawyers. While numerous, the differences were not ultimately material. But counsel agreed that Bell Gully’s transcript was more accurate.

[34] The Inspector-General’s answers to Mr Campbell’s questions encompassed statements generally about his role and specifically about Mr Zaoui’s case. However, we should record that in our judgment the questions and answers were confined to the processes and legal principles relating to the review process; they were not directed towards the substance or merits of Mr Zaoui’s application. Some of the Inspector-General’s statements were reproduced in the Listener article on 29 November 2003. Other media organisations subsequently published and commented upon other statements made by the Inspector-General. Some commentators significantly misrepresented what he said. As a result, much of the public discussion on the issue has been misinformed, distorted and unfair to the Inspector-General.

[35] On 8 December 2003 Mr Mark Sainsbury, a reporter employed by Television One News, telephoned the Inspector-General for comment upon his access to a videotape of an earlier interview conducted by the SIS with Mr Zaoui. Following a news item broadcast by Television One that evening about the videotape, the Inspector-General spoke twice with the Director. On 9 December 2003 he telephoned the New Zealand Herald to expand upon his advice given to Mr Sainsbury. A brief report followed in the newspaper’s edition published on 10 December 2003.

[36] On 11 December 2003 Mr Harrison made his formal request to the Inspector-General to withdraw from continuing to conduct the review. On 15 January 2004 the Inspector-General issued his written decision refusing to recuse himself. In the interim, on 19 December 2003, Williams J delivered his decision.

[37] On 27 January 2004 Mr Zaoui issued this proceeding by way of challenge to the Inspector-General’s refusal to disqualify himself. The parties have since filed two significant interlocutory applications in it. Mr Zaoui sought orders that the Inspector-General answer interrogatories and make general discovery; the Inspector-General applied to remove the proceeding to the Court of Appeal. On 3 March 2004 Potter J delivered a judgment declining the Inspector-General’s application for transfer and allowing Mr Zaoui’s applications to administer interrogatories and for general discovery.

[38] Shortly afterwards the Court allocated a priority fixture to hear Mr Zaoui’s substantive application to disqualify the Inspector-General. Urgency was appropriate for a number of reasons. The proceeding operated as an automatic stay of the Inspector-General’s review. Consequently, Mr Zaoui would continue to remain in detention for an indefinite period. Also, the Inspector-General has appealed and Mr Zaoui has cross-appealed against Williams J’s judgment. The Court of Appeal is scheduled to hear both appeals on 5-6 May 2004.

[39] Mr Harrison identified four particular passages from the Listener transcript as individually and collectively pointing towards the Inspector-General’s apparent bias against Mr Zaoui’s application. He acknowledged, of course, that the Inspector-General’s statements must be considered in the context of the interview as a whole. Accordingly it is inappropriate to subject each impugned passage to separate scrutiny when addressing the test for determining apparent bias. The proper approach is to consider the cumulative effect of the Inspector-General’s statements. Additionally, Mr Harrison relied upon the Inspector-General’s separate conduct in dealing with the media and the Director on 8 and 9 December 2003. Before considering Mr Harrison’s arguments we shall summarise the legal principles applicable to a challenge for apparent bias.

Legal Principles

[40] On the Inspector-General’s behalf Ms Mallon accepted our jurisdiction to determine Mr Zaoui’s application for judicial review. His non-recusal decision was an exercise of a statutory power or a statutory power of decision (s 4 Judicature Amendment Act 1972). As noted, Ms Mallon abandoned (on a without prejudice basis) the Inspector-General’s affirmative defences of a jurisdictional nature (ss 19(9) and 24(1)(a) Inspector-General of Intelligence and Security Act 1996).

[41] Both counsel spared us the task of embarking upon yet another judicial attempt to reinvent the wheel of formulation of the definitive test for determining apparent bias. They agreed that the question is whether the reasonable, fair minded and informed observer could conclude that there was a real danger of bias arising from the Inspector-General’s statements or conduct. They also agreed that the two variants on this test – substitution of the Court for the hypothetical observer and the notion of a reasonable or real possibility for real danger – would make no difference to the result. This test is a synthesis of the approaches adopted by our Court of Appeal (Riverside Casino Ltd v Moxon [2001] 2 NZLR 78 at paras 26-31; Collier v Attorney-General [2002] NZAR 257 at paras 21-22; Man O’War Station Ltd v Auckland City Council [2001] 1 NZLR 552 (affirmed on appeal by the Privy Council at [2002] 3 NZLR 577)) and by the House of Lords (R v Gough [1993] AC 646; Porter v Magill [2002] 2 AC 357).

[42] While the test is well settled, some principles are particularly relevant to its application in this case as follows:

a) Bias in this context must exist in the sense that the decision-maker might unfairly regard one party’s case with favour or the other with disfavour (Collier (supra)). This is analogous to an inquiry into whether the adjudicator’s impartiality might be affected (Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 21 NZTC 18,214). The real danger or possibility limb of the test encompasses the risk of unconscious prejudice (R v Inner West London Coroner [1994] 4 All ER 139 per Simon Brown LJ at 152a-b);

b) The rule against apparent bias arises from the importance of ensuring the confidence of the public, as well as the parties, in the fair and impartial administration of justice. Justice should both be done and seen to be done, reflecting the fundamental importance of the judicial decision-maker’s independence and impartiality (Eber v Official Trustee (2001) 205 CLR 337 at 344). Public perception, provided it is based upon an informed view of the facts, is critical (Man O’War Station v Auckland City Council [2002] 3 NZLR 577 at para 10);

c) As already noted, the context and particular circumstances of statements said to give rise to apparent bias ‘are of supreme importance’, requiring ‘an intense focus on the essential facts of the case’ (Man O’War Station v Auckland City Council [2002] 3 NZLR 577 at para 11). The obligation to consider all relevant circumstances means that the factual position may appear quite differently at the time when the challenge is launched and when it later falls for decision by the Court; what may appear originally to be a strong case may fail or conversely become stronger (Inner West London Coroner (supra) per Simon Brown LJ at 151). In this respect the question is to be determined from the viewpoint of knowledge of all material and available facts at the date of challenge, and is not limited to such information as would be acquired on becoming aware of the fact of the alleged disqualifying act or interest (R v Webb (1994) 122 ALR 41 per Deane J at 64, applied in BOC NZ Ltd v Transtasman Properties Ltd (1996) 10 PRNZ 199 (CA) at 205-206). The question is not to be determined from the viewpoint of a detailed knowledge of the law or of the character or ability of the particular decision-maker (R v Webb (supra) per Deane J at 64);

d) While the decision-maker’s reasons for declining to disqualify himself are relevant, they are ultimately not binding. Conversely the subjective views of the complainant are neither relevant nor decisive within the scope of an objective inquiry (Porter v Magill (supra) per Lord Hope at para 104).

[43] Two authorities assumed prominence in counsels’ submissions. Mr Harrison relied on the Inner West London Coroner’s case where a coroner convened inquests into a collision between two vessels on the River Thames one evening in August 1989. A total of 51 young people died. The coroner later adjourned the inquests pending verdicts on criminal proceedings against the master of one of the vessels. The mother of a victim later alleged an official cover-up . The coroner met with journalists in an attempt to answer the allegation and set the record straight. At the meeting he described the woman as ‘unhinged’ and displayed an attitude of hostility towards her. Later the coroner advised of his intention to resume the inquests. Following a challenge he refused to remove himself on the grounds of apparent bias towards the interests of the woman whom he had described as ‘unhinged’.

[44] The Court of Appeal upheld a challenge to the coroner’s position and disqualified him on the ground of apparent bias. Mr Harrison relied upon Simon Brown LJ’s concluding observation that (156c-e):

The case should serve as a reminder to all judicial officers of the almost invariable unwisdom of ever talking to the press about any aspect of current legal proceedings.

Farquharson LJ described it as ‘…wrong or at least undesirable for anybody sitting in a judicial capacity …’ to discuss or make public comment about a case he or she is hearing (161a-b). While this may be so, Ms Mallon noted that the fact of speaking publicly about a case under consideration is not of itself evidence of an apparent bias. Her point has authoritative support (Porter v Magill (supra) per Lord Hope at para 105). Nevertheless, such conduct is fraught with risk, as the facts of this case illustrate. And the convention of judicial silence is entirely consistent with the public perception of impartiality and objectivity.

[45] Mr Harrison also emphasised these observations by Sir Thomas Bingham MR about the coroner’s function (163a-b):

There is, however, as I think, nothing in the coroner ’s role which indicates that he is, or should be, subject to any lower standard of impartiality than other judicial decision-makers: if anything, his central and dominant role in the conduct of an inquest might be said to call for a higher standard since those interested in the proceedings are, to an unusual extent, dependent on his sense of fairness.

[Emphasis added]

[46] Ms Mallon did not suggest that when performing his review function the Inspector-General should be subject to any lesser standard of impartiality than a Judge of this Court when exercising his or her judicial functions. However, there is force in Mr Harrison’s argument that on analogy Sir Thomas Bingham’s call for a higher standard upon a coroner applies equally to the Inspector-General. As already noted, Mr Zaoui must rely substantially on the Inspector-General’s independence, objectivity and fairness in undertaking the threshold inquiry into the classification, credibility and relevance of information used by the Director for the purposes of certifying against him. That degree of reliance is compounded by the stakes posed for Mr Zaoui by an adverse decision.

[47] Ms Mallon placed particular reliance upon observations by the English Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 (Lord Bingham, Lord Woolf and Sir Richard Scott VC) at para 25 to support a proposition that extracurricular statements can give rise to bias where they display a degree of hostility towards a litigant but do not generally result in pre-judgment of the case. She emphasised, almost as prescriptive, these examples of apparent bias given by the Court:

By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind …; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him.

[48] The passage immediately following from the same judgment also relevantly states that:

… In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case…

[Emphasis added]

[49] In Locabail the Court considered five separate cases of alleged apparent bias. Only two were challenges based upon the risk of predetermination arising from prior statements, in one case judicially and in another case not. None arose from extracurricular statements by a decision-maker on a case then under consideration.

[50] We shall now consider the four specific passages from the Listener interview upon which Mr Harrison relies to show the Inspector-General’s apparent bias. As will become clear, we are satisfied that only one is relevant to our decision. We shall discuss the Inspector-General’s statements in that passage in conjunction with his conduct on 8 and 9 December 2003 after reviewing the first three passages.

Listener Interview

(1) Inspector-General’s ‘outski’ remark

[51] First, Mr Harrison relied on this passage from the interview transcript to support a proposition that the Inspector-General was indifferent to Mr Zaoui’s fate if deported (in this judgment Mr Campbell’s questions are reproduced in ordinary typeface beside the letter “Q”; the Inspector-General’s answers are in emboldened typescript beside the letter “A”):

A. I don’t think there’s anything to be sure that [the possibility that Mr Zaoui’s human rights ‘could fall through the cracks’] wouldn’t happen. But … um … the um … the … from … the Minister really has a discretion. First of all, to rely on the certificate when it’s first given. And secondly to, when I’ve made my thing to take the next step…

Q. Which is what – the wider issues?

A. Yes. She’s not bound. She can’t be. I don’t bind her to say ‘out’ because she’s got three days to decide. If that wasn’t the case, then she wouldn’t have a decision. I’d be making my decision and it would be outski on the next plane. The Minister … the executive really do have to make the decision.

[52] The original Listener article did not report this exchange. But it was subsequently the subject of widespread media comment based upon the website transcript. Some commentators chose to construe it as an unequivocal assertion by the Inspector-General that if the decision was left to him Mr Zaoui would be deported. This view was a gross and unfair misrepresentation.

[53] A balanced, contextual analysis confirms that the Inspector-General was discussing the hypothetical prospect of an adverse decision by him on an application to review the Director’s decision and the inevitable consequence of deportation within three days if the Minister was not vested with a statutory discretion exercisable in accordance with our international convention obligations to allow the person to remain on humanitarian grounds. In fact the Inspector-General emphasised both elements of the ministerial discretion – whether to rely on the certificate and whether to take account of human rights considerations. The accuracy and balance of his commentary are beyond reproach.

[54] Mr Harrison accepted that the Inspector-General was speaking hypothetically. Nevertheless, he focused on the latter’s choice of the word ‘outski on the next plane’ as ‘… noteworthy for its complete lack of sympathy for Mr Zaoui’s fate and predicament in that eventuality [of deportation]’. He submitted that:

The mock Russian of ‘outski’ has overtones of the summary expulsion of Russian diplomats caught spying and ignominiously sent home. It has connotations of the cold war, and telegraphs cold comfort for Mr Zaoui.

[55] Mr Harrison submitted that the Inspector-General’s words ‘showed startling indifference’ to Mr Zaoui’s fate if deported, and were ‘bound severely to shake public confidence in the Inspector-General’s impartiality and the integrity of the entire review process’. By reliance on subsequent media publicity Mr Harrison concluded in these terms:

This material is not used to argue that the original choice of words should be seen as varying the meaning of them that the general public must now surely, as a consequence of the subsequent newspaper reporting, come to accept. Rather, the point is that if the public ends up with a perception or concern about bias and lack of independence as a result of ill-judged and unacceptable language capable of having that effect when taken out of context, then the decision-maker who has by his very own actions thrown his impartiality into question cannot be allowed to avoid responsibility for the situation which has arisen. He cannot seek to deflect foreseeable consequences of his choice of language, as the Inspector-General did in his decision not to withdraw:

The fact that my choice of the word ‘outski’ has been given prominence in later publicity is no evidence of partiality on my part.

In the apparent bias context, that is, of course, not the issue.

[56] We reject this argument. The Inspector-General’s use of the wor d ‘outski’ could never be construed as disparaging of Mr Zaoui, especially when the tone of delivery is considered, or as reflecting indifference to Mr Zaoui’s fate if deported. The Inspector-General simply used a colloquial phrase to emphasise his message about the draconian consequences of an adverse decision without the existence of the Minister’s discretion. It continued the vein of Mr Campbell’s earlier statement in the context of the same discussion that:

Three days for the immigration minister, bingo, you know, and if she upholds it then that’s it, a deportation order and a removal order and away we go.

[Emphasis added]

[57] Also, Mr Harrison’s reliance upon the court of misinformed public opinion contradicts his acceptance of the criterion of the reasonable, well informed and fair minded observer. As Mr Harrison himself acknowledged, the hypothetical observer proceeds from the balanced and well informed perspective of knowledge of all relevant facts. A lesser test would lead to nonsensical results. We reject any suggestion that the Inspector-General’s choice of language was ill-judged or unacceptable. In our judgment there was nothing objectionable in this passage.

(2) Inspector-General’s comments on judicial review proceeding and confidence in his interim ruling

[58] Second, Mr Harrison relied on an extensive and continuous passage from the interview to support the proposition that the Inspector-General adopted two contradictory stances in a way which gave the appearance of bias. On the one hand, he said, the Inspector-General maintained the correctness of his interim ruling, demonstrating at the same time complete equanimity at the prospect of an unfair process, if not result, for Mr Zaoui; on the other hand, the Inspector-General implied, if not said, that it was Mr Zaoui’s decision to go to the High Court on judicial review, instead of awaiting the Director’s provision of further information, that caused the current difficulties.

[59] On the first of what he portrayed as the Inspector-General’s contradictory stances Mr Harrison submitted:

…. the attempt by the Inspector-General to place sole responsibility for the current absence of particulars [from the Director] on Mr Zaoui by reason of his initiation of the first judicial review, is not only highly inappropriate but also completely without foundation. It involves nothing less than the creation of a myth about both the procedural steps and exchanges which immediately preceded the Inspector-General’s interim ruling of 6 October 2003, and the effect of the interim ruling itself…

Because, in blunt terms, what occurred at this point of the Listener interview was that the Inspector-General attempted wrongly to blame Mr Zaoui for his own significant legal errors, it is important that the sequence of events leading to the interim ruling, and the terms of the ruling itself, be clearly understood.

[60] It is unnecessary for us to examine that sequence of events. In our judgment there is nothing in this argument. A balanced evaluation of this passage as a whole coupled with knowledge of the Inspector-General’s tone of delivery confirms that he was fairly and accurately answering a line of natural justice type questions about the review process and the Director’ s obligation to provide information. The essence of the first exchange on the subject was as follows:

Q. Yeah, but can’t we build on that, rather than reinvent the wheel? [Text and response omitted]. That’s what the question is, really… Why not learn from them, when other jurisdictions have done it the hard way?

A. Well … yes … well … alright, I don’t know. I felt that I had made it … I had suggested … that there was more to … the … well, what did I end up saying in my judgment? That I thought that the Director could produce more information to disclose the terms …

Q. In that context – will that be released in the High Court proceedings, or what? Or in your review context later on?

A. Mmm?

Q. Why isn’t it being produced now?

A. Well, because they’ve gone to the courts, to … to challenge the way in which I’ve done … made my decision.

Q. Do you feel you were actually inviting them to seek the clarification of the courts on this point?

A. I was inviting the Director to provide more information, I thought … that’s what I thought I was doing.

Q. Right.

A. Then they went to the courts.

Q. Right. You can’t compel him to?

A. (Pause) … I don’t know. This hasn’t been tested.

Q. At this point in the timetable though, you can’t?

A. No.

Q. You can’t compel him now?

A. No it’s gone … it’s gone out of my hands in a way, in the meantime.

Q. So at the point you write the interlocutory, you couldn’t … there was nothing in the law that enabled you to compel the Director of the SIS to be a bit more forthcoming to the respondent?

A. (Pause) No. Well, yes. Well, I thought there was. Well I thought that was what I was … bearing in mind …

Q. But you didn’t compel him, you invited him?

A. Well, invited, yes. But probably had to be … well… I don’t know.

Q. I don’t want to make you sound like Don Corleone, making the SIS an offer they couldn’t refuse.

A. Well, in a way that’s what I could do. If … if ah … if, if the answer wasn’t satisfactory. If he refused to, if he refused to do anything at all … um … no, I … I’m entitled to say well, this isn’t good enough.

Q. But at what point, in terms of preparation of the case? [Text of question omitted]. When were they going to get the information? And in what form?

A. Well, we don’t know … we don’t know that. What … (indistinct) trend. That’s odd. That’s a hypothetical really.

[61] Later Mr Campbell returned to the same subject, leading to this related exchange:

Q. Oh yes, right. But the whole point is that there is an intermediary position.

A. You say that we haven’t gone into the middle yet. Okay, all right.

Q. No one is saying that it is open slather. [Text of question omitted]. I’m trying to figure out – are there zones of discretion here, or is it that everybody’ s hands are completely tied? And there’s no mechanism for sharing and meeting on the middle ground? That is what I am trying to ascertain.

A. This exactly what this case in the court is about.

Q. But you see, we can’t wait until we actually walk through the door of the courtroom.

A. Oh no, no, but that’s why we’re having the … I think why Harrison’s got the case now.

Q. But he shouldn’t have to go to that stage, surely? Shouldn’t there be a willingness to find a middle ground, rather than saying well mate, you’ve got the opportunity to go to the court and prise a bit more out of us? You know what I mean? Why aren’t we taking that course?

A. Well, I don’t know. Tha t’s the way I’ve done it. That’s the way I’ve done it.

Q. And is that because you feel you have very little discretion in this area?

A. No. I’ve got discretion, quite a lot of discretion in this area.

Q. … [Text of lengthy question omitted]. [The Canadian position] is a whole lot further down the track than we have gone. Yet it seems sensible as well. There’s a willingness by the judiciary [there] … to arbitrate a protection on both sides and that is quite missing in New Zealand. [Further text of question omitted]. Do you have any thoughts about that?

A. Well, I don’t know. Well, I don’ t want … because that’s in the hands of the court at the moment. I know you’re suggesting we shouldn’t have needed to have this, this court case because other jurisdictions have done it another way … that’s what you’re suggesting.

Q. Pretty much.

A. But we haven’t done it that way.

Q. You must have considered it, though. Why didn’t you?

A. Well, I’ve made my interlocutory decision. And then uh, this is how it happened, see. I made my interlocutory decision and then the Director produced another document, and then they went to the High Court.

Q. Right.

A. So … I don’t know whether we could have some bargaining or something. Or something. I don’t know. It was never … it never arose.

Q. Right, okay. So in other words … you say you issued the invitation to the Director. The Director did produce something a bit further, a bit more. Obviously the respondent felt it wasn’t enough.

A. And straight away went to the court.

[62] In summary, in the first exchange Mr Campbell questioned the Inspector-General about his powers to force the Director to provide more information to Mr Zaoui. The Inspector-General explained that he had invited the Director to follow this course but that Mr Zaoui’s then pending application for judicial review effectively suspended the process. In the second exchange Mr Campbell remained on the same theme; he inquired into the reasons for the absence of a middle ground between the extremes of the positions adopted by the Director and Mr Zaoui for provision of information. He referred to the approach adopted in other jurisdictions such as Canada. The Inspector-General answered by pointing out more than once, in an almost diffident tone, that this issue was now before the High Court, and repeating that his proposal for resolution was now in abeyance. It is a distortion to suggest that the Inspector-General was attempting to blame Mr Zaoui either for the Director’s failure to provide particulars or for any legal errors made by the Inspector-General.

[63] The second limb to Mr Harrison’s argument was that in related exchanges with Mr Campbell the Inspector-General maintained the correctness of his ruling on the natural justice issue while it was the subject of challenge on an application for judicial review in this Court. Mr Harrison described him as:

… affirm[ing] the extremely narrow view of his inquiry (excluding the human rights dimension) enunciated in the interim rulings. He also appears to contemplate with equanimity that Mr ‘Zaoui’s human rights could fall down through the cracks’. And when faced with the suggestion that the effect of his natural justice ruling is that Mr Zaoui and his advisers could be ‘going in blind’ so far as the ultimate hearing is concerned, he responds to the question ‘Is that fair?’ by saying:

‘Is that fair? It’s not fair. It’s not fair. But this … we are in an area where you can’t have fairness, because you can’t tell all.

[64] Accordingly, Mr Harrison submitted, the Inspector-General seemed unable to contemplate the existence of a middle ground posited by Mr Campbell between two extremes of ‘going in blind’ and ‘telling all’. The Inspector-General chose the former, the Director’s position. Mr Harrison submitted that an informed, fair minded observer could now have no confidence in the Inspector-General’s ability or inclination to conscientiously implement Williams J’s decision on the natural justice issue.

[65] In the context of this interview it would have been inappropriate for the Inspector-General to publicly disclaim his decision on the natural justice issue. As Ms Mallon observed, a Judge should believe in the correctness of his or her decision unless and until it is overruled. On this occasion the Inspector-General stood by his earlier ruling but in moderate and deferential terms. It was proper that he should refrain from debating Mr Campbell’s middle ground proposition while the issue was the subject of a challenge in the High Court.

[66] Mr Harrison’s misunderstanding of the Inspector-General’s actual words was confirmed by his suggestion in oral argument that the Inspector-General was saying that in this context ‘you can’t tell anything’. That was not what he said. He said ‘you can’t tell all’. He confirmed no more than was obvious: Mr Zaoui will never be entitled to all the relevant information upon which the Director relied to certify adversely again him. He will never know the whole case against him. This situation is plainly unfair according to a judicial appreciation of the principles of natural justice. The Inspector-General reaffirmed that view in answer to an earlier proposition that Mr Zaoui ‘could be going in blind’.

[67] More moderately expressed, Mr Harrison’s argument came down to a proposition that the risk of apparent bias exists where a judicial officer has not only made an adverse interlocutory decision which is later held to be wrong in law but has also publicly reaffirmed its accuracy. In his non-recusal decision the Inspector-General summarised the classical view in these terms (para 13):

For a Judge to have one view does not amount to a ‘mindset’. It is merely an opinion which will change with the corrected law and interpretation and then be applied to the circumstances of the case; here the review.

[68] However, while mindful of this view, we are aware that the question of whether it is appropriate for a judicial officer to continue determining a proceeding where a superior Court has held against his or her interlocutory decision depends on the circumstances. There is no absolute rule. We are aware of Judges electing to disqualify themselves in circumstances where to continue sitting may give rise to an impression or suggestion of bias. We will have to take this factor into account when considering the Inspector-General’s statements and conduct in context.

(3) Comments signifying acceptance of ‘expendability of individuals’ and appeasement of New Zealand’s security partners

[69] Third, Mr Harrison submitted that some comments made by the Inspector-General suggested he was or was likely to be unduly influenced when performing his review by a concern to appease New Zealand’s security partners to the detriment of Mr Zaoui’s statutory rights. Mr Harrison relied particularly on this passage from the interview:

Q. … One of the things that comes through quite strongly is the ongoing need for continued access to security information. The Minister and other people have talked about the cast iron guarantees that have to be given to brother agencies overseas that there will continue to be confidentiality.

A. Or we stop getting it.

Q. Yeah. We stop getting it. How does that avoid creating a situation where the individual is always expendable for the long-term good of the wider relationship?

A. If that was a serious threat to our national security or a danger to our national security, it would be quite proper, wouldn’t it? You wouldn’t expend them, you’d just say you’re not going to stay here.

Q. But you could almost create a situation where anybody’s particular circumstances could be swept under the carpet in the name of the greater good. For Joe Blow, the case arguably, might have been made only 60 per cent – so we say well it’s 50/50 whether he would be an ongoing threat – but the over-riding issue is if we release a lot of information about his particular circumstance. The thing in the cupboard all the time is the worry about the wider security relationship. And that quite easily creates a climate where – I would argue – almost anybody would be expendable, because there would always be such an over-riding background concern – it would overwhelm the individual case.

A. Yes … (pause). You could have two steps to that, though. The Minister or the government could say we accept that there is a serious threat and we abide by the certificate that’s been given, but he’s going to stay here because we’re obliged under our human rights conventions not to send him to death. So you’d say to the Americans or the Australians that we’ve done everything you want us to do … but we’re bound by a higher authority or convention not to send this man to his death. You wouldn’t do it, we’re not going to do it … I would pick that would be accepted … and wouldn’t stop the flow…

Q. The only worry then would be that you were being soft on terrorism – which is a lesser sin than divulging security secrets?

A. Well, you’d be soft on letting people in. This is what the Australians are trying to do. Stop the flow before it gets to the border. That makes it easier.

Q. Yes. In this case we could actually take the risk of looking soft on terrorism, but we are respecting the confidentiality of information provided. Because if we don’t – if we go down that route of really dealing with the particulars of this chap’s case, it’s going to be a worse outcome for you, and for our wider relationship.

A. Yes.

Q. There’s a lot of discretion, isn’t there?

A. I think there is.

[70] Again a balanced analysis does not bear out Mr Harrison’s construction of the Inspector-General’s statements. In this passage he started by agreeing with Mr Campbell that New Zealand will lose access to security information from other agencies without cast iron guarantees of confidentiality. Mr Campbell responded by inquiring how that avoided creating a situation where the individual is always expendable for the sake of the long-term good of the wider relationship. The Inspector-General disclaimed Mr Campbell’s notion of expendability; he said that if the individual presented a serious threat or danger to our national security he would not be expended but told that he was not going to stay.

[71] Mr Campbell was not deterred. He returned to the theme of expendability, repeating that concerns about our wider security relationship would easily create a climate which would overwhelm the individual case, leaving him or her expendable. The Inspector-General answered his proposition by staying with the example of a person who has been certified as posing a serious threat to national security. In that situation the Minister’s discretionary powers would assume prominence: the Minister could properly acknowledge to friendly agencies that the person constituted a security threat in accordance with the information provided by them but, after taking account of our wider human rights obligations, the Minister could exercise his or her overriding discretion against deportation and the risk of death.

[72] Mr Campbell followed the Inspector-General’s answer by articulating a worry that presumably New Zealand would earn a reputation for being soft on terrorism, a lesser sin than divulging security secrets. The Inspector-General’s corrective view was that New Zealand would be seen as ‘soft on letting people in’. He compared it with Australia’s pre-emptive approach of stopping the flow, presumably of refugees, before it reached the border.

[73] There is nothing in the subject passage that could possibly support an allegation of apparent bias against Mr Zaoui’s case. The Inspector-General answered a series of questions about the relationship between the interests of the state and the individual, and offered an informed suggestion as to where and how the balance may be struck. There is no basis whatsoever for alleging that the Inspector-General might be influenced or overborne by a subconscious wish to appease New Zealand’s security partners when determining Mr Zaoui’s application to review the Director’s decision.

[74] In summary, in our judgment none of these three passages discretely dissected by Mr Harrison supports a case of apparent bias against the Inspector-General. Each is unsustainable and their sum total provides no foundation for Mr Zaoui’s case. However, the last passage is in a different category. Its contents, along with the Inspector-General’s subsequent conduct, form the basis of our decision which we shall now discuss.

Decision

(1) Statements about claims for refugee status and false passports

[75] Towards the conclusion of the interview, and immediately following the passage just discussed, the Inspector-General volunteered this observation:

…We certainly don’t want – I’m not talking as the I-G – I’m talking just personally as a New Zealander. We don’t want lots of people coming in on false passports that they’ve thrown down the loo on the plane and saying, “I’m a refugee, keep me here”. And perhaps having some association elsewhere. I understand that our passport is very desirable because it’s accepted almost without question all over the world. And if we lost that, then you and I would have great, much greater difficulty getting into America or Germany or wherever. So there’s a number of competing interests which the government has to take into account, I think. And I think we’ve got to take into account as well – I’m not suggesting we shouldn’t have refugees, because I think everybody should have refugees – but you’ve got to watch it.

[76] Before discussing the arguments advanced by either counsel, it is important to set the context of these statements. They were made towards the conclusion of the interview, immediately after the Inspector-General’s comment about being “soft on letting people in”. Mr Campbell followed with this question:

Yes. In this case we could actually take the risk of looking soft on terrorism, in the light of say… but we are respecting the confidentiality of information you have provided. Because if we don’t – if we go down that other route of actually really dealing with the particulars of this chap’s case, it’s going to be a worse outcome for you, and for our wider relationship.

[Emphasis added]

[77] The Inspector-General answered this question in the affirmative. We have emphasised Mr Campbell’s reference to “this case” and “this chap’s case” because we infer that he was referring to Mr Zaoui. He went from the general to the specific. After a question by Mr Campbell about ministerial discretion the Inspector-General made the statements recited above. In context the Inspector-General’s remarks, especially after disclaiming his official status, suggest that he was also talking about Mr Zaoui or at least that he had Mr Zaoui’s case in mind.

[78] Mr Harrison submitted that the Inspector-General’s statements are necessarily indicative of a mindset which if applied even subconsciously to Mr Zaoui would be seriously prejudicial to an independent and unbiased review. It is common ground that the Inspector-General was then aware that Mr Zaoui had entered New Zealand on a false passport; had attempted to damage or destroy it before presenting himself to immigration officials at Auckland International Airport; and had claimed refugee status or, to use the Inspector-General’s words, had effectively said “I’m a refugee, keep me here”. Additionally, the Inspector-General was aware from reading the SIS file in April and October 2003 that the Director believed Mr Zaoui had “some [terrorist] association elsewhere”. Mr Harrison submitted that Mr Zaoui’s circumstances fell squarely within the category of people whom the Inspector-General personally believes “we don’t want lots of … coming here” and about whom “you’ve got to watch it”.

[79] In her written synopsis Ms Mallon echoed the Inspector-General’s answer to this assertion in his non-recusal decision [para 17]. She submitted that the Inspector-General was not referring to Mr Zaoui because he now has refugee status; accordingly, he was beyond the generality of the comment. With respect, this answer is beside the point. What is directly relevant to Mr Zaoui’s application is the Inspector-General’s personal view that New Zealanders do not want “lots” of refugees who enter by this method and who perhaps have “an association elsewhere”. And, of course, his statement did not recognise that almost all who claim refugee status enter on false travel documents and that Article 33.1 Refugee Convention forbids New Zealand from imposing penalties on refugees “on account of their illegal entry or presence”.

[80] In oral argument Ms Mallon dealt much more extensively with the Inspector-General’s statements. She submitted that the passage from Locabail (supra) at para 25 reflects the reality that Judges like any other member of the community will have preferences, views or prejudices. This factor is not a ground for disqualification because a judicial officer is selected for his or her skill in undertaking assessments on the merits. A Judge is able to put those views aside and decide a case objectively by applying the law to the evidence. The Inspector-General has many years experience of performing that function. Additionally, he was chosen to perform the function of the office because of his apparent attributes.

[81] In Ms Mallon’s submission a reasonable and fair minded person is aware of and understands a Judge’s ability and qualities to decide a case independently, regardless of his or her personal views. This is the necessary foundation of public confidence in our legal system. She cited Locabail as authority for the proposition that it is not acceptable for a Judge to indicate that he or she will not be able to act judiciously. A judicial officer is only disqualified if he or she has expressed an extreme, as opposed to a temperate or moderate, view or has already assessed a person as lacking in credibility.

[82] Ms Mallon explained that the Inspector-General was not discussing genuine refugees, but those who use the refugee process as a cover for an association elsewhere. The Inspector-General was not saying that the fact of entry on false passports means that refugees should not come here by that method; if they are genuine, we should have them, but not lots of others (presumably those who are not genuine and whose claims for refugee status should be rejected) who enter under a refugee’s pretence. Ms Mallon accepted that the Inspector-General might have made himself clearer but in context she contended her explanation for his words was accurate.

[83] Ms Mallon posed two questions for consideration in this context. First, was the view expressed by the Inspector-General relevant to the question he has to decide; namely, was the certificate properly made? In answer she emphasised that he was not deciding whether or not Mr Zaoui should be given refugee status. Also the Inspector-General was not deciding whether New Zealand should adopt the pre-emptive approach favoured by Australia for stopping refugees from approaching its coast. Within this inquiry Ms Mallon asked rhetorically: might a reasonable person consider that the Inspector-General could give effect to his view through the indirect route of upholding the certificate given that he had earlier made clear in his interlocutory ruling that his decision does not bind the Minister? In her submission his view would only be relevant if his decision could have the effect of removing a person who may have an association elsewhere. However, that decision is ultimately vested in the Minister or the High Court on an application for a writ of habeas corpus, not in the Inspector-General.

[84] Second, Ms Mallon asked, if the Inspector-General’s view is relevant to the question he has to decide, was it expressed in sufficiently strong terms to cast doubt on his ability to listen to Mr Zaoui’s evidence with an open mind? She submitted that the answer must be in the negative. The Inspector-General’s view is not extreme. It is not that New Zealand should have no refugees or that the country should adopt a fortress mentality. Nor, conversely, is it that New Zealand should allow all who apply for refugee status to stay. The Inspector-General’s view is somewhere in the middle ground: that some, not ‘lots’, may be alright. In Ms Mallon’s submission the Inspector-General’s expression of a view does not give rise to a real possibility that he may ignore his training and adopt a mindset against Mr Zaoui’s credibility instead of listening to the merits. On a comparative analysis, Ms Mallon submitted that this situation fell far short of the Inner West London Coroner case.

[85] Ms Mallon’s analysis was careful, thoughtful and compelling. However, we are not persuaded that it answered Mr Harrison’s challenge. By reference to Ms Mallon’s two-stage inquiry, we accept that the Inspector-General will not be deciding whether or not Mr Zaoui should be given refugee status; the RSAA has already made that decision and the Inspector-General must proceed accordingly. Nevertheless, he will be making a decision which might have the consequential effect of jeopardising the benefit of that status.

[86] Ms Mallon did not dispute that the Inspector-General was expressing a view specifically about Mr Zaoui or somebody in a similar position. He falls squarely within the definable category of refugees whom the Inspector-General does not favour: those who (a) enter on false travel documents which they attempt to destroy and (b) may have ‘some association elsewhere’. The latter statement is enigmatic. It is certainly open to construction as referring adversely to Mr Zaoui. The Inspector-General knew that Mr Zaoui was, to the Director’s satisfaction, associated with groups which presented a threat to our national security. The use of the word ‘perhaps’ may be interpreted to signify disfavour in the sense that Mr Zaoui would remain an undesirable even if the Director is only able to establish a suspicion of questionable associations.

[87] The practical context of the Inspector-General’s statements is this. Mr Zaoui has a right to be heard and to call evidence in support of his challenge to the Director’s decision. He is likely to exercise his right, to answer general and specific allegations of subversive conduct and association. The credibility of Mr Zaoui’s account may be critical. A favourable result would entitle Mr Zaoui to immediate release and to exercise all rights attaching to his status as a refugee. An adverse result would continue the status quo of detention and the real risk of deportation.

[88] In this sense, as Ms Mallon accepted, the Inspector-General’s decision may have an influential part in the process that might result in Mr Zaoui’s deportation. While he does not have the final say, his review may prove to be significant, if not determinative. The Inspector-General’s statements reveal a state of mind arguably antagonistic to Mr Zaoui and his prospects of remaining in New Zealand. In these circumstances the reasonable, fair minded and informed observer might properly conclude there is a real possibility or danger that the Inspector-General may be influenced, however subconsciously, to view Mr Zaoui’s case with disfavour.

[89] With respect to Ms Mallon, this question is not answered by attempting to weigh the Inspector-General’s view in the middle ground between extremes. The importance of that factor will always depend on the circumstances. What are more relevant are the content and context of his statements and the fact that the Inspector-General expressed his view publicly during the course of the decision-making process after he had ruled adversely to Mr Zaoui on both the natural justice and human rights issues and before he had determined the substantive challenge. Public perception and confidence in the fair administration of justice play a significant part at this stage.

(2) Inspector-General’s conduct on 9 December 2003

[90] The SIS conducted a seven hour interview with Mr Zaoui following his arrival at Auckland International Airport on 4 December 2002. At some stage the SIS advised Mr Zaoui’s lawyers that a videotape covering about one hour of the interview was missing. Mr Zaoui’s lawyers pressed for it. In making an adverse certificate, the Director relied on some allegedly unsatisfactory answers by Mr Zaoui during his interview (see paras 2 and 3 of the Director’s summary). Some time in early December 2003 the SIS provided an audio recording of the missing hour (except for two minutes).

[91] On 18 March 2004, the day before this hearing, the Crown provided Mr Zaoui’s lawyers with a copy of a document made by the Inspector-General on 9 December 2003 headed “ ZAOUI REVIEW: NOTE FOR FILE”. We reproduce it as follows:

1. Yesterday 8/12 Sainsbury TV1 Rang re videotape of interview with Z in Dec and the publicity. He asked me if I had seen it. I said I had not seen it. He then said so you did not know about it. I said that I had not seen it and that was all I was saying. He may have asked if I thought I should have seen it or been told about it. I said that I would not comment further.

2. About 6.30 ERW on tel. Concern that TV said I had not been told about tape and so inference that SIS had concealed it from me. I assured ERW that I had said not seen but that I was aware of tape at time of interview on 4 Oct if no earlier when there was suggestion no videotape but a sound tape.

3. Rang TV1 spoke to Sainsbury. Told him I had not heard TV but had reported to me and it was wrong. Confirmed I had not seen tape but had known about it from early Oct. Had not indicated to him that I had not been told about it. Was annoyed at inference that SIS had concealed when they had always disclosed anything I asked for. He said would see if late news carry something to correct. He adamant his notes confirmed his report. I adamant he had made wrong inference.

4. Reported back to ERW. Later spoke to David Lewis confirming foregoing and agreed with him that advice to select newspapers enough. Suggestion that Z lawyers have indicated that they understood at conference in Oct that I was unaware of video tape. I said that I was probably being cagey.

5. TV1 late news carried further item, which seemed slanted to give impression that I had not known all.

10.45 [X] called. Delivered file of notes re videotape of interview with Z.

[92] It is common ground that the initials “ERW” refer to the Director, Mr Richard Woods, and that Mr David Lewis is a media advisor in the Prime Minister’s department. In summary, the Inspector-General spoke twice with Mr Mark Sainsbury of Television One on 8 December 2003; twice with the Director (on one occasion reporting back to him); and once with Mr Lewis. It is not surprising that much of the activity was generated by the Inspector-General’s answers to Mr Sainsbury’s original inquiries about whether or not he knew of its existence. His answer that ‘I had not seen it’ might be construed as drawing a legalistic distinction not obvious to a lay person.

[93] Mr Harrison submitted that:

Overall, the file note shows the Inspector-General acting in concert with the Director and with the Prime Minister’s media strategist, to present the Director/the NZSIS in the most favourable light, in the face of mounting public criticism and embarrassment in relation to their handling of a matter which was not only controversial and embarrassing, but also an issue arising in the Inspector-General’s review.

[94] Additionally, Mr Harrison made the point that Mr Zaoui and his legal representatives do not enjoy a direct line of access to the Inspector-General or the Director at a time when the propriety of the latter’s certificate is under review by the former .

[95] On 9 December 2003, in apparent conformity with his agreement with Mr Lewis, the Inspector-General telephoned the New Zealand Herald to advise that the Director first fully informed him about the existence of the videotape on 3 October 2003. He may have spared the confusion apparently generated by the television news item if he had given the same answer to Mr Sainsbury. Mr Harrison characterised this conduct as “springing to the Director’s defence”.

[96] Ms Mallon accepted that the Inspector-General’s first statement to Mr Sainsbury (and presumably earlier to Mr Zaoui’s lawyers) was open to misunderstanding. However, considered in context, she submitted the Inspector-General’s conduct was not a matter of defending the Director but one of clarifying a misunderstanding. It was not appropriate, Ms Mallon suggested, for the Director to undertake the corrective exercise because it was the Inspector-General’s answer and he was responsible for rectifying the consequences. Given the public controversy which the issue had generated, Ms Mallon submitted that it was perfectly legitimate for the Director to inquire of the Inspector-General about the cause of the confusion.

[97] The existence and nature of these communications aggravate our concern about an appearance of bias but for a different reason. What the Inspector-General said to Mr Sainsbury is not material, even if he knew that his choice of words did not convey the full picture and may lead to misunderstandings. What is relevant is that, first, the Inspector-General spoke directly to the Director about the videotape when the latter’s decision to issue a certificate against Mr Zaoui was subject to the Inspector-General’s current review to which the tape’s whereabouts or contents was or may be relevant and, second, he took steps which were meant to correct a misunderstanding but had the collateral effect, if not purpose, of portraying the SIS in a favourable light. This action was consistent with the Inspector-General’s reaction to the Director’s call that the media had implied the SIS had concealed something when in the Inspector-General’s experience it had always disclosed whatever he had requested.

[98] This impression of closeness to the Director, with a converse lack of independence, is compounded by the Inspector-General’s agreement with the Prime Minister’s media adviser to speak with selected newspapers. His telephone call to the New Zealand Herald, resulting in its article on 10 December 2003, conformed with this strategy. It did not seem necessary or appropriate for the Inspector-General to go this far, lending force to Mr Harrison’s criticism that he was springing to the Director’s defence.

[99] Another area of concern is the Inspector-General’s confidence to the Prime Minister’s media adviser that “I was probably being cagey”, presumably with Mr Zaoui’s lawyers at an earlier conference on the same subject. Transparency and fair dealing are essential in a process like this. The Inspector-General ’s admission that he may not have been completely forthcoming to Mr Zaoui’s lawyers or had said something to them that led to confusion might properly raise doubts about his impartiality with the fair minded observer.

[100] In this context we confirm again the importance of the Inspector-General’s independence. His office was established to increase “the level of oversight and review” of the SIS among other agencies. He is specifically charged with ensuring that complaints, including a review of this nature, are ‘independently investigated’. Reference to his functions as set out earlier in this judgment, emphasises the importance of complete independence from the Director. It is not going too far to suggest that an “arm’s length” relationship is appropriate. His qualification to act in this way is reinforced by his judicial background. His functions are inquisitorial and, while conducted in private, are very much of a judicial nature.

[101] On review of a certificate, the Inspector-General’s function is determinative. He must bring, and be seen to bring, an absolutely independent mind to the three specific steps in the review process, to determine “whether the certificate was properly made or not”. The Inspector-General’s distance from the Director and others on all aspects of this inquiry is critical.

[102] The Inspector-General’s conduct on 8 and 9 December 2003 legitimately calls into question his independence from the Director, and in our judgment raise for the hypothetical, objective observer a real possibility that he may, again subconsciously, view the Director’s case with undue favour.

(3) Comparison between Director’s reasoning and Inspector-General’s interview remarks

[103] Mr Harrison advanced a separate argument of bias based on a comparison between the Inspector-General’s statements in the Listener interview and the reasoning employed by the Director in a supplementary summary of reasons for his decision to issue a certificate. Mr Harrison submitted that the summary involves the contention that Mr Zaoui will associate with or support people or organisations “of security concern” if he is allowed to remain. For example, in para 6 of his summary the Director refers to unclassified Belgian information that Mr Zaoui “… had been found to be a leader and instigator of a criminal association with the intention of attacking persons and property”. In para 8 the Director referred at least twice to Mr Zaoui’s actual or potential association with others. Later in para 8 the Director stated:

If Mr Zaoui, with his public record, were allowed to settle here, that would indicate that New Zealand has a lower level of concern about security than other like minded countries. That would impact adversely on New Zealand’s reputation with such countries and thus on New Zealand’s international wellbeing.

[104] Mr Harrison did not suggest that when interviewed the Inspector-General used the same language as the Director in his summary. However, he submitted there were ‘… significant similarities of theme and concern expressed by both’. Mr Harrison referred to the Inspector-General’s acceptance of Mr Campbell’s proposition that ‘the worry about the wider security relationship’ could result in ‘overwhelming of the individual case’; to his reference to being ‘soft on letting people in’; and his reference to people coming in on false passports, claiming refugee status, and ‘perhaps having some association elsewhere’. Even though the Director’s summary was not prepared until 27 January 2004, it is common ground that the Inspector-General was aware in substance of the Director’s reasoning found in para 8.

[105] Ms Mallon did not respond directly to Mr Harrison’s argument but she did not need to. In our judgment this submission is without merit. Mr Harrison did not press it with enthusiasm. It ignores the fact that Mr Campbell chose the topics to which the Inspector-General was responding.

Conclusion

[106] In our judgment the Inspector-General’s interview statements about refugees and his subsequent dealings with the Director and members of the media raise, when considered together, the real possibility of apparent bias against Mr Zaoui when undertaking his review of the Director’s decision: in the first instance of undue disfavour or partiality against Mr Zaoui, and in the second of undue favour or partiality towards the Director. An additional factor in this context, which would not be sufficient on its own, is the undesirability of the Inspector-General continuing to determine Mr Zaoui’s substantive application for review following the adverse interlocutory judgment delivered by Williams J on 19 December 2003.

[107] We agree with Mr Harrison that this process requires adherence to the highest standards of impartiality, given Mr Zaoui’s complete reliance on the Inspector-General’s performance of his functions and the consequences for him of an adverse decision. It is also imperative that a process of this importance, both to Mr Zaoui and to our wider security interests, is not tainted by tenable, ongoing questions about the Inspector-General’s independence. These factors lead us to conclude that the Inspector-General should stand aside from the review process and that, because he is technically “not available”, the Governor-General should appoint someone else to act in his place for the duration (s 114B(2)).

[108] In this respect we are satisfied that the allegation of apparent bias is made out. But at the very least, as Ms Mallon’s careful explanations illustrated, the meaning of some of the Inspector-General’s statements are open to ambiguity. Any doubts in these circumstances should be resolved in favour of recusal (Locabail (supra) at para 25).

[109] We emphasise that there was no suggestion of actual bias against the Inspector-General, and that we have come to our conclusion on apparent bias with great reluctance. While a decision-maker’s personal or particular characteristics are not relevant to the substantive question of apparent bias, it is appropriate for us to acknowledge the Inspector-General’s judicial qualities. As a Judge of this Court he enjoyed a reputation for absolute integrity, independence and fairness, both among his colleagues and within the profession.

[110] Nevertheless, public confidence in the proper administration of justice makes such considerations irrelevant. We are satisfied that the Inspector-General should not participate further in this review. We anticipate that all that is required is the declaration sought by Mr Zaoui. Accordingly, we declare that the Inspector-General is disqualified from further engaging or participating in the conduct of Mr Zaoui’s application to review the security risk certificate issued by the Director on 20 March 2003. Questions of costs are reserved. If costs are sought, submissions should be made in writing within 14 days of the date of this judgment.

____________________________

Rhys Harrison J

____________________________

Salmon J

Signed at _________ a.m./p.m. on 31 March 2004

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