The Most Important Victory Yet For Ahmed Zaoui
Ahmed Zaoui has won another battle in the Court of Appeal, making it two-and-a-half out of three. But reading the full judgement, this may very well be the most important one of all.
Briefly put, the court decided that the Inspector-General of Security and Intelligence must take Zaoui's human rights
into account when reviewing the security risk certificate. But it goes further than that - a lot further than that. The decision
affirms wide-ranging rights of judicial review; affirms the independence of Inspector-General, and that he must conduct a real review of the evidence upon which the
security risk certificate is based, rather than interviewing the Director of the SIS and applying a rubber stamp:
the Inspector-General is to come to his own view about the nature, credibility and relevance of information said to be
classified, and to his own view as to whether a person in question is properly covered by a relevant security criterion.
The Inspector-General’s review is not in the nature of that type of judicial review which examines another person’s
decision for rationality. It is a process of independent assessment by the Inspector-General.
The one loss for Zaoui is that the Inspector-General should not consider questions of what will occur if he is deported
- those questions are for the Minister. Despite this, the Inspector-General must take the Refugee Convention into account, as it has been imported into New
Zealand Law through Immigration Act, and must take human rights and the international jurisprudence into account in its
interpretation. Regard must be had for the freedoms of association and expression affirmed in the Bill of Rights Act.
It's the latter that makes this case the most important one for Zaoui so far. S. 129X of the Immigration Act 1987 bars the deportation or removal of any refugee "unless the provisions of Article 32.1 or
Article 33.2 of the Refugee Convention" allow it. Article 33.2 is the relevant one, and it allows deportation or removal
of a refugee only where ...there are reasonable grounds for regarding [them] as a danger to the security of the country in which he is, or who,
having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that
country.
There's a fair bit of international jurisprudence on what exactly this means, and what it comes down to is that there
must be (to quote Justice Glazebrook) objectively reasonable grounds based on credible evidence that Mr Zaoui constitutes a danger to the security of New
Zealand of such seriousness that it would justify sending a person back to persecution. The threshold is high and must
involve a danger of substantial threatened harm to the security of New Zealand... There must be a real connection
between Mr Zaoui himself and the prospective or current danger to national security and an appreciable alleviation of
that danger must be capable of being achieved through his deportation.
Furthermore, It is also important to remember that the term used is "security". Concerns about New Zealand’s reputation can be taken
into account only if they impinge to such a serious extent on national security that they could fairly be said to
constitute a danger to national security. In this regard it must be stressed that the granting of refugee status cannot
be seen as an unfriendly act, either on the part of the State where there is a risk of persecution or by any other State
Given that the core of the SIS's "case" against Zaoui is that allowing him to stay may offend other nations and
undermine our international reputation, the above effectively constrains the Inspector-General to revoke the Security
Risk Certificate. The Court of Appeal may just have written Zaoui's release papers.
ENDS