CIV-2003-404-5872

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 Sections 8, 9 and 27 of the New Zealand Bill of Rights Act 1990

BETWEEN AHMED ZAOUI
Plaintiff

AND ATTORNEY-GENERAL
First Defendant

AND THE INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY
Second Defendant

AND THE HUMAN RIGHTS COMMISSION
Intervener

Hearing: 1, 2 and 3 December 2003

Appearances: R E Harrison QC with D Manning and R McLeod for Plaintiff
K L Clark and A S Butler for First Defendant
W M Wilson QC with J Mallon for Second Defendant
R Hesketh and S Bell for Human Rights Commission

Judgment: 19 December 2003

Solicitors:

Short & Co, P O Box 1153 Auckland

McLeod &Associates, Level 10 Southern Cross Building, cnr Victoria/High Streets, Auckland

Crown Law, P O Box 5012 Wellington

Bell Gully, P O Box 1291 Wellington

Human Rights Commission, P O Box 6751 Wellesley Street Auckland

Para Page Preface, Facts and Issues [1] 3

Part IVA [9] 5

Inspector-General’s Review:

1: To October 2003 [30] 14

2: Interlocutory Decision [31] 16

3: Director’s Evidence [42] 20

Summary of Parties’ position [44] 21

s19(9) Inspector-General’s Act: a private clause? [50] 22

The Judicial Review is Premature? [67] 28

Interpretation of s114I

1: General [74] 29

2: s114I and the sections

imported into s114I [75] 30

3: s114I in the context of Part IVA [95] 35

4: s114I in the context of the Act [111] 40

5: s114I in the context of BoRA [115] 42

6: s114I in the context of the Refugee Convention [135] 50

7: s114I in the context of other [142] 51 international treaties and conventions

Relief: Declaration of Inconsistency [164] 58

Result [169] 60

Preface, Facts and Issues

Mr Zaoui, the plaintiff, is an Algerian national. He arrived in New Zealand on 4 December 2002. He sought refugee status at Auckland International Airport. He was detained. He still is. On 30 January 2002 his refugee application was declined by a Refugee Status officer acting under the Immigration Act 1987 Part IVA . On 1 August 2003 the Refugee Status Appeals Authority (RSAA) allowed his appeal against the officer’s decision concluding (p223) :

[982] The appellant has a well-founded fear of being persecuted for a Convention reason if returned to Algeria.

[983] The Authority finds that the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted.

In the meantime, on 20 March 2003 the Director of Security (“Director”) appointed under the New Zealand Security Intelligence Service Act 1969 (the “SIS Act”) provided a Security Risk Certificate (the “Certificate”) issued under s114D(1) to the Minister of Immigration.

On 23 or 24 March 2003 she, after receiving an oral briefing from the Director on the contents of the Certificate (s114E), made a preliminary decision to rely on it (s114G(1)). Mr Zaoui received the Minister’s preliminary decision on 27 March 2003. On the same day he applied to the Inspector-General of Intelligence and Security (the “Inspector-General”) appointed pursuant under the Inspector-General of Intelligence and Security Act 1996 (the “Inspector-General’s Act”) for review of the Director’s decision to make the Certificate.

After a course of events discussed later, on 6 October 2003 the Inspector-General delivered what was called an “interlocutory decision” as to the manner in which he intended to continue and conclude the review of the Director’s decision to make the Certificate in relation to Mr Zaoui.

In these judicial review proceedings, Mr Zaoui challenges a number of passages of the interlocutory decision. For the purposes of the case, his advisers divided those rulings into what they called the “procedural ruling” and the “substantive ruling”. Mr Zaoui claims the Inspector-General erred in law in relation to both rulings in the manner later discussed and seeks orders declaring the procedural and substantive rulings unlawful and in breach of the New Zealand Bill of Rights Act 1990 (“BoRA”) ss8, 9 and 27(1) plus orders setting aside the ruling; directing the Inspector-General to re-consider and determine the review in light of the Court’s decision and in particular having regard to the Court’s interpretation of Part IVA plus, in the alternative, if the rulings are upheld under Part IVA, with a declaration that the provisions of Part IVA leading to that outcome are inconsistent with BoRA.

This judgment deals with the judicial review proceeding.

Thus the issues the parties ask the Court to decide all relate to the timing of, and the process by which, the Inspector-General is reviewing the Certificate issued by the Director in relation to Mr Zaoui.

Because of the way the parties framed the issues for decision, this judgment :

● Does not deal with Mr Zaoui’s life before arriving in New Zealand.

● Does not deal with the circumstances of his arrival at the New Zealand border.

● Does not deal with his detention since his arrival.

● Only incidentally deals with Mr Zaoui’s successful appeal to the RSAA.

● Only incidentally deals with what might follow :

● should the Inspector-General decide the Certificate in relation to Mr Zaoui was properly made.

● should any appeal on legal grounds which Mr Zaoui might make to the Court of Appeal be unsuccessful.

● should the Minister of Immigration thus be required to make a final decision to rely or not rely on the confirmed Certificate and accordingly whether or not Mr Zaoui should be deported from New Zealand notwithstanding his refugee status.

Part IVA

As indicated, the actions of Mr Zaoui, the Director, the Minister and the Inspector-General all took place under Part IVA. The provisions of that Part were extensively canvassed by counsel. It is accordingly pertinent to consider the statutory scheme.

The long title to the Act says one of its purposes is “to remove the need for persons who are in New Zealand unlawfully to be dealt with by way of criminal prosecution”. The Act then sets out provisions dealing with visas, various types of permits, the rights and obligations of persons unlawfully in New Zealand, deportation, arrivals and departures.

Part IVA contains a number of new provisions enacted with effect from 1 October 1999 by the Immigration Amendment Act 1999 which, in terms of its long title, effected a number of reforms including providing a statutory framework for refugee applications and a “special security regime to protect sensitive security information” relevant to immigration. Part IVA is headed “Special Procedures In Cases Involving Security Concerns”.

Part IVA has its own object section (s114A) which it is helpful to cite :

114A Object of Part - the object of this Part is to—

(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.]

Part IVA also has its own definition section (s114B) which defines “classified security information” in the following way :

‘Classified security information’ 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:

In the Certificate the Director said :

I hold classified security information (as defined in section 114B(1) of the Immigration Act 1987) (“the Act”) and I am satisfied that the information :

relates to Ahmed Zaoui (“the person”) and that the person is not a New Zealand citizen and is a person about whom decisions are to be, or can be, made under the Act; and

is credible, having regard to the source or sources of the information and its nature, and is relevant to the relevant security criteria referred to below; and

would mean, when applying the relevant security criteria referred to below to the person in light of that information, that the person meets the criteria.

“Relevant security criterion” is defined by s114C. So far as Mr Zaoui is concerned, the relevant refugee deportation security criteria are either or both of his constituting a threat to national security in terms of s72, which gives the Minister power to certify that the continued presence in this country of a person named in such a Certificate constitutes such a threat and the Governor-General power by Order in Council to order their deportation, or any of the criteria in s73(1) which, broadly, gives the Minister power to order the deportation of persons whom the Minister has reason to believe is a member of or adheres to an organisation which has engaged in or claimed responsibility for acts of terrorism in New Zealand or has committed such an act, or, if such acts are outside the country, whose continued presence in New Zealand constitutes a threat to public safety. In addition, the criterion or criteria must be taken together with either or both of the following :

(6) The relevant refugee deportation security criteria are a combination of any 1 or more of the criteria listed in subsection (4) as relevant deportation security criteria, taken together with either or both of the following criteria:

(a) That there are reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention:

(b) That the person is a danger to the community of New Zealand, having been convicted by a final judgment of a particularly serious crime, in terms of Article 33.2 of the Refugee Convention.

As far as Mr Zaoui is concerned, the Certificate said :

The relevant security criteria are the relevant refugee deportation security criteria in section 114C(6) of the Act, namely that :

The person’s continued presence in New Zealand constitutes a threat to national security in terms of section 72 of the Act; and

There are reasonable grounds for regarding the person as a danger to the security of New Zealand, in terms of Article 33.2 of the Refugee Convention (as defined in section 2 of the Act).

The Director may provide a Certificate to the Minister if, under s114D, he holds classified security information that he is satisfied relates to a person who is not a New Zealand citizen and about whom decisions are or can be made under the Act and that information :

…

(b) Is 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,—

In making the decision to provide the Certificate the Director may take account of relevant information which is not “classified security information” (s114D(3)). The existence of the Certificate is evidence of grounds for conclusion on the matters certified subject to the Inspector-General’s review and the Minister may rely on it. Reasons are not required where the Minister relies on a Certificate (s114F). On receiving a Certificate the Minister may call for an oral briefing from the Director on its contents but the contents of the briefing are determined by the Director and may not be recorded or divulged by either (s114E). As noted, the Minister called such a briefing in relation to Mr Zaoui.

If the Minister makes a preliminary decision to rely on a Certificate, notice is given to the Department of Labour and the notice suspends the processing of any application by the person to the Department, suspends any proceeding in relation to that individual and the individual is detained (s114G). The suspension of proceedings which are before courts and tribunals relating to that individual is, however, subject to the important exception that proceedings before the RSAA may continue (s114G(3)(b)). That occurred in Mr Zaoui’s case and lead to the RSAA decision of 1 August 2003.

On being served with notices of the preliminary decision and of their rights, persons such as Mr Zaoui have the right under s114H to :

Seek a review by the Inspector-General … of the decision of the Director … to make the security risk certificate.

That review proceeds under s114I. The person has the right to be represented by counsel or others in dealing with the Inspector-General, the right to have access “to the extent provided by the Privacy Act 1993 to any information about the person other than the classified security information” and the right to make written submissions about the matter (s114H(2)). No action may be taken to remove or deport them while the review process is in train and (subs (4) “no review proceedings may be brought in any court in respect of the Certificate or the Director’s decision to make the Certificate”.

The statutory provisions relevant to the review appear mainly in s114I(3)-(6) which read :

(3) The review is to be conducted by the Inspector-General of Intelligence and Security with all reasonable speed and diligence.

(4) The function of the Inspector-General on a review is to determine whether—

(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.

(5) In carrying out a review, the Inspector-General may take into account any relevant information that does not itself meet the definition of classified security information.

(6) For the purposes of a review under this section—

(a) The Inspector-General has all the powers conferred on him or her by the Inspector-General of Intelligence and Security Act 1996; and

(b) Sections 13, 19 (except subsections (1)(b) and (2)), 20, 21, 22, 23, 24, 26, 28, and 29 of that Act, with any necessary modifications, apply to the review; and

(c) The chief executive of the Department of Labour must provide the Inspector-General with any file relating to the appellant, and any other relevant information, that is held by the chief executive.

The relevant provisions of the Inspector-General’s Act imported by s114I(6) include having regard to security requirements (s13), access to security records (s20), power to hear evidence in private, summons persons and hear evidence on oath (ss22 and 23), debarring disclosure of security records or official information and maintaining secrecy (ss28 and 29) and s19, the applicable wording of which is :

19 Proceedings of Inspector-General

(1) The Inspector-General, on commencing an inquiry,—

…

(3) If the inquiry relates to a complaint, the Inspector-General may require the complainant to give on oath any information relating to the complaint, and may for that purpose administer an oath to the complainant.

(4) The Inspector-General shall permit the complainant to be heard, and to be represented by counsel or any other person, and to have other persons testify to the complainant's record, reliability, and character.

(5) In accordance with the foregoing provisions of this section, the Inspector-General may receive such evidence as the Inspector-General thinks fit, whether admissible in a Court of law or not.

(6) Every inquiry by the Inspector-General shall be conducted in private.

(7) If at any time during the course of an inquiry it appears to the Inspector-General that there may be sufficient grounds for making any report or recommendation that may adversely affect an intelligence and security agency, or any employee of an intelligence and security agency, or any other person, the Inspector-General shall give to that intelligence and security agency, employee, or person an opportunity to be heard.

(8) Subject to the provisions of this Act, the Inspector-General shall regulate his or her procedure in such a manner as the Inspector-General thinks fit.

As soon as possible after making a decision on the review the Inspector-General advises the person involved, the Minister, the Director, and the Department of Labour with the decision being accompanied by reasons “except to the extent that the giving of reasons would itself be likely to prejudice the interests that this Part seeks to protect in relation to the classified security information” (s114J(4)). If the decision is that the Certificate was not properly made the person is released from custody immediately and any immigration processes resume. If the decision is that the Certificate was properly made, the Minister must make a “final decision within 3 working days whether to rely on the confirmed Certificate” and in making that decision the “Minister may seek information from other sources and may consider matters other than the contents of the Certificate” (s114K(1)(2)).

In a letter dated 25 November 2003 to Mr Zaoui’s lawyers the Minister said :

The matters which you argue I should have regard to are, in summary, sections 8 & 9 of the New Zealand Bill of Rights Act 1990, s 129X Immigration Act 1987 and article 33 of the Refugee Convention (non refoulement), and certain articles of the International Covenant on Civil and Political Rights and the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

I agree that I should have regard to those matters if I am required to make a decision under s114K(1) in relation to Mr Zaoui. Indeed, I have always been of the view that these matters should be taken into account.

I confirm that if I am required to make a decision under s 114K(1) Immigration Act 1987 in relation to Mr Zaoui I will make the decision according to law and will consider and have regard to :

The potential for Mr Zaoui to be deported if I decide to rely on the Security Risk Certificate (if it is confirmed by the Inspector-General of Intelligence and Security);

Sections 8 and 9 of the New Zealand Bill of Rights Act 1990;

Section 129X(1) Immigration Act 1987;

New Zealand’s obligations under Article 33 of the Refugee Convention (as defined in s 2 Immigration Act 19897);

New Zealand’s obligations under Articles 6.1 and 7 of the International Covenant on Civil and Political Rights;

New Zealand’s obligations under Article 3 of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

As a result of that letter, Mr Zaoui discontinued his claim against the Minister in this proceeding.

On receipt of a Ministerial direction relying on the confirmed Certificate, the Department of Labour notifies bodies dealing with the person’s cases so they can be dismissed, revokes any visas or permits, makes removal or deportation orders or arranges release from custody for those protected by s129X. No further appeal or review is permitted. The Minister is not obliged to give reasons (s114K(3)-(7)). If, however, the Inspector-General gives notice the Certificate was not properly made or the Director withdraws the Certificate or the Minister decides the relevant security criterion should not be applied or revokes a decision to rely on the confirmed Certificate or fails to make a final decision within 3 working days, the person is released from custody, immigration processes recommence and proceedings before courts and tribunals resume (s114L). The power to withdraw the Certificate, withdraw the notice or decline to use the Certificate appear in ss 114M and 114N.

All that, however, is subject to s114P which gives the person named in a Certificate confirmed by the Inspector-General a right of appeal with leave to the Court of Appeal if dissatisfied with the decision as being legally erroneous. That right of appeal must be exercised within 3 working days of notification of the Inspector-General’s decision.

Although the terms in which Part IVA is couched require later detailed examination, the overall statutory scheme is clear. The Director issues a Certificate and provides that to the Minister. The Minister has a discretion (“may rely”) whether to rely on the Certificate. If the Minister makes a preliminary decision to rely on the Certificate, everything else in relation to that person stops except any RSAA proceedings. The person is served with the Minister’s notice and has the right within 5 days of service to seek a review of the Certificate by the Inspector-General. If they do not apply for review within 5 days the Minister must make a final decision within 3 days whether to rely on the Certificate and may take other information into account. If the Minister’s decision is to rely on the Certificate all other proceedings are dismissed and the person is removed or deported or if protected by s129X released from custody. If the person applies for review of the Certificate within 5 days of service all proceedings and other processes in relation to them remain stopped while the review is in progress and they may not be removed or deported. If the Inspector-General decides the Certificate was not properly made, the person seeking the review is released from custody and normal immigration processes resume. If the decision on review is that the Certificate was properly made, the person may apply for leave to appeal to the Court of Appeal within 3 working days. Within the same period the Minister must make a final decision whether to rely on the confirmed Certificate and the same process applies as if no review had been sought. If the decision is the Certificate was not properly made or it is withdrawn or the Minister fails to make a final decision within the period allowed, the person is released from custody, immigration processes recommence as do any proceedings relating to that person.

However, it is further to be noted that where the Minister relies on the confirmed Certificate, not only must the chief executive revoke any visa or permits they hold, but a removal or deportation order must be made and the person removed or deported unless protected by s129X which reads :

129X Prohibition on removal or deportation of refugee or refugee status claimant

No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.

Since the Director only relied on Art 33.2 of the Refugee Convention (the United Nations Convention Relating to the Status of Refugees 1951 ratified by New Zealand on 30 June 1960) in relation to Mr Zaoui it is only necessary to cite that Article :

Article 33 Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding 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

Inspector-General’s review 1 : To 6 October 2003

In the lead-up to the delivery of the Inspector-General’s interlocutory decision on 6 October, there was extensive correspondence and a number of conferences as to the manner in which the review would be conducted, this being the first review since Part IVA came into force. The Director was also involved in that process. It is unnecessary to recount the detail save to note that :

On 26 May 2003 the Director listed information other than classified security information on which he had relied in issuing the Certificate and confirmed he had considered the meaning of “security” in the SIS Act in reaching his decision. As defined, “security” means protecting New Zealand from “acts of espionage, sabotage, terrorism and subversion” and from activities influenced by foreign organisations or persons which are “clandestine or deceptive or threaten safety” and impact adversely on New Zealand’s international or economic well-being. He acknowledged he had copies of open source material but declined to identify what classified security information he had or used lest he “compromise the ability of the service to protect a source of information or the fact that a source exists”.

On 8 August 2003 Mr Zaoui’s lawyers filed a lengthy memorandum with the Inspector-General suggesting what might be involved in the review and the steps the Inspector-General might take. On 26 August 2003 Mr Zaoui’s lawyers filed what they called a memorandum of opening submissions in relation to the review which referred extensively to authority discussed at this hearing, to BoRA, to the relevant international Conventions, to the 11 witnesses Mr Zaoui wished to call with a brief outline of their proposed evidence and also listed some 13 steps in the methodology for the review which senior counsel for Mr Zaoui, Mr Harrison QC, submitted the Inspector-General should follow.

On 25 August 2003 the Human Rights Commission filed comprehensive submissions in support of its application to intervene in the review.

On 16 September 2003 Ms Clark and Mr Butler, who appeared for the Attorney-General at this hearing, filed submissions on behalf of the Director to which Mr Zaoui’s lawyers replied.

2 : Interlocutory Decision

After noting the Inspector-General’s power to regulate the procedure under s114I(6) and s19 of the Inspector-General’s Act, he set out the factual history and summarised the arguments for Mr Zaoui: Part IVA and s6 of BoRA entitled him to the protection of ss8, 9 and 27(1) of BoRA as did New Zealand’s international law obligations under Art 33(1) of the Refugee Convention, Art 7 of the International Covenant on Civil and Political Rights (ICCPR) and Art 3 of the Convention against Torture (CAT). After reference to s114C(6) and authority, he noted the submission that those arguments would lead to the conclusion that the Certificate for Mr Zaoui was not properly made.

The interlocutory decision then went on to record the Director’s submission that his role under Part IVA was confined to assessing the security risk Mr Zaoui posed and accordingly none of the international human rights instruments were relevant to the review (though relevant to the Minister’s decision). The Director took the view that although the review looked back to the making of the Certificate to see if it was properly made, he was also under an obligation to reconsider the matter if new information came to light.

After citing Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at paras 81-92, 122 and Secretary of State for the Home Department v Rehman [2002] 1 All ER 122, 141, the Inspector-General then noted (para 18) that those cases were about deportation, a question with which neither the Director nor the Inspector-General were concerned, because :

The decision at this stage is the propriety of the security Certificate. The credibility of the information and its appropriate classification and its application to the person in question. … The Director’s decision and consideration is focused on the security questions, the threat or danger to security of New Zealand. The IGIS is equally limited to that focus.

Then, after accepting that “there has to be a careful scrutiny of the material which was before the Director”, the Inspector-General observed (para 19) :

That scrutiny is not limited to the date of the Certificate. It must follow from the use of the present tense in reference to credibility of the material and its application to the Applicant that a review must take into account at least information that the applicant may bring forward. Indeed the fact that he is given the opportunity to be heard and call evidence in his support reinforces that continuing scrutiny. It would be vain if the opportunity to give evidence had both real meaning or effect on the review performance. [sic.].

Then, after commenting on right to take account of evidence inadmissible in Court, the Inspector-General, in one of the passages principally in contention, said (paras 21/22) :

That said what is classified information as defined which was taken into account cannot be disclosed to the applicant or any body. The IGIS is entitled to receive it and to question the Director and his officers as to its credibility and application to the applicant but this is the area where the Bill of Right BORA 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 the security of New Zealand as a whole.

The classified information as defined and as recognised and acknowledged by the IGIS will not be disclosed to the applicant or his Counsel. They will not have any opportunity to make representations about it. The IGIS will review it and giving it consideration will weigh it with the other information which is known to the applicant and which he furnishes to the IGIS.

The Inspector-General then said he would take the RSAA’s decision into account as its finding of refugee status and the application of Art 1F was binding. He could take account of other findings in the RSAA judgment, observing that the weight to be given those matters must be tempered by the fact that the RSAA did not have access to classified information, had no power to consider threats to the security of New Zealand under Arts 32 and 33 of the Refugee Convention, and the material before the RSAA was not subject to cross-examination or rebuttal which (para 24) “is it seems the likely course of the hearing before me as to the evidence … on behalf of the applicant”.

He then turned to the Human Rights Commission’s application, summarised the submissions for and against its intervention including a repetition of Ms Clark’s submission for the Director that the human rights instruments were irrelevant to the task of the Director or the Inspector-General. Declining the Commission’s application, the Inspector-General observed (para 28) in another contested passage :

As I have already indicated my view is that the general issues of international jurisdiction are beside the point. My review is as 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 the applicant. The deportation issue is for the Minister. I am bound to protect the security matters and thus debar the applicant from being aware of them.

The Inspector-General then recounted the Director’s summary of the grounds on which he made the Certificate (para 30):

This summary is as follows:

Mr Zaoui’s Belgian and French criminal convictions;

the repeated decisions of the Belgian tribunals/courts to decline Mr Zaoui refugee status;

the decision of the Swiss Executive to expel Mr Zaoui from Switzerland;

classified security information providing background to those decisions;

classified security information relating to the period after Mr Zaoui left Switzerland;

classified security information being reports on materials in Mr Zaoui’s possession on arrival and interviews conducted with him in New Zealand;

classified security information being an evaluation of the above material …

On the basis of the foregoing, the Director of Security made a Security Risk Certificate, relying on subsection (c) of the definition of “security” in s2(1) of the New Zealand Security Intelligence Service Act: - the protection of New Zealand from activities within or relating to New Zealand that are (i) influenced by any foreign organisation or any foreign person; and (ii) are clandestine or deceptive, or threaten the safety of any person; and (iii) impact adversely on New Zealand’s international well-being or economic well-being.

He then moved to Mr Harrison’s proposed 13 step methodology for the review with which, he said (para 31) “Ms Clark in essence agrees”. At this hearing it was submitted the Inspector-General over-stated that position. There was also disagreement as to the point the Inspector-General had reached in following the proposed methodology. He did say that parts of the methodology were relevant to the “questions which are now to be dealt with”, namely :

31… that of the decision as to what is the relevant classified security information, as defined and relied on by the Director and what other information ought to be disclosed to the applicant. …

The methodology is too long to reproduce in full, but may be summarised. Steps 1-10 would all require the Director to identify each item which was the source of “classified security information” and other information relied on in making the Certificate, provide other information to the Inspector-General as to the oral briefing, whether the Director still regarded the information as credible and identifying what reasons led him to conclude that Mr Zaoui was a threat to national security or a danger to this country. Step 11 would require the Inspector-General then to give Mr Zaoui all the information relating to the credibility and accuracy of the non-classified security information plus identifying the reasons for the conclusion that Mr Zaoui was a threat to national security or a danger to the country “together with such further information obtained by the Inspector-General in the course of his inquiries as fairness requires to be disclosed” in terms of the memorandum of opening submissions. Those, while accepting that “classified security information” was protected from disclosure, asserted that gave no reason that “absolutely no information at all as to the substance of the allegations or concerns which underlie the Certificate should be provided to the person so vitally affected” and that “basic fairness requires that Mr Zaoui be provided with sufficient information to enable him to address, in a fully informed way, all those aspects of an Inspector-General’s review which are encompassed in s114I(4)”. Step 12 was to advise Mr Zaoui if the Inspector-General decided “classified security information” relied on by the Director was not properly so classified, and step 13 then provided

13 Moving forward to the ultimate assessment by the Inspector-General of the credibility of both the classified security information and the non-classified information relied on by the Director – an assessment required to be conducted only after hearing from Mr Zaoui and having regard to the evidence which he will tender – it should generally be possible to differentiate, in relation to that information, between fact and opinion. While factual information can be assessed for “credibility” in terms of s 114B(1)(b), opinion as such cannot be so assessed – or alternatively, cannot be evaluated in the same way as alleged facts;

The Inspector-General then described the actions he had taken to cover steps 1, 2, 4 and, effectively, 3. He proposed to postpone steps 5, 6 and 7 involving investigations into the credibility of the classified security information until he had heard Mr Zaoui’s case (para 34) though directing non-classified information relied on by the Director in making the Certificate be made available to Mr Zaoui. Finally, the Inspector-General said that although the Director in his further advice on the definition of “security” seemed to assert that Mr Zaoui posed a threat and danger to the security of New Zealand on both international well-being and economic well-being grounds, his discussion with the Director suggested such was not the case. He suggested the Director should clarify the position and in so doing should give further detail of what aspects of the definition of “security” were applicable to Mr Zaoui.

On 7 October 2003 counsel for the Director filed a memorandum on that topic saying :

1 “ … the Director of Security made a Security Risk Certificate, relying on subsection (c) of the definition of “security” in s2(1) of the New Zealand Security Intelligence Service Act: - the protection of New Zealand from activities within or relating to New Zealand that are (i) influenced by any foreign organisation or any foreign person; and (ii) are clandestine or deceptive, or threaten the safety of any person; and (iii) impact adversely on New Zealand’s international well-being or economic well-being.”

…

the Director confirms that all aspects of the definition of “security” quoted above are relied upon except “activities … that impact on New Zealand’s … economic well-being.”

3: Director’s evidence

In an affidavit filed in this proceeding, the Director said that most of the allegations made against Mr Zaoui are “reflected in the convictions and decisions” (referred to in para [38]). To provide a summary of the classified security information and the allegations on which it is based beyond what had been provided would risk identifying the sources and methods by which it was obtained and risk failing to observe restrictions on its use. That in its turn would prejudice future capacity to obtain the information, would limit the SIS’s access to classified information from abroad and would prejudice national security. Those propositions were challenged in affidavits filed on Mr Zaoui’s behalf by persons experienced in United States and Australian security matters.

He went on, however, to say that SIS concerns about Mr Zaoui did not relate to his activities in Algeria and the SIS has had no contact with Algerian authorities about Mr Zaoui. It had been concerned only with his activities since he left that country.

Summary of parties’ positions

Mr Zaoui’s basic proposition is that the Inspector-General’s review will be conducted in breach of the principles of natural justice if permitted to proceed on the present basis because he has received inadequate particulars as to the security risk he is alleged to present and the factual assertions underlying the Director’s assessment that he is such a risk.

Secondly, he asserts the Inspector-General is wrong in law in declining to take account in the review of BoRA and the international human rights instruments. He accordingly submitted that the issues to be addressed were whether the principles of natural justice apply to the review; whether the Inspector-General erred in law in holding that Mr Zaoui was not entitled to a summary of the allegations against him derived from “classified security information”; whether he erred in law in failing to consider whether it was legally possible, consistent with Part IVA, to provide the information sought as to the nature of the threat he poses to national security, the grounds to regard him as a danger to the security of New Zealand in terms of Art 33.2 of the Refugee Convention and the nature of that danger plus the substance of the factual allegations against him relied on in making the Certificate and whether the Inspector-General erred in law in holding his focus should be limited to the refugee deportation security criteria.

The Crown’s position is that refugee matters and security matters are statutorily separate with neither overlapping into the other’s arena. Accordingly, the international human rights instruments have no application to the review other than if and when the Minister comes to consider whether to make a final decision to rely on the confirmed Certificate. And she has already indicated an intention to take that dimension into account if that position arises.

The Crown also took the view the Court has no jurisdiction to deal with the proceedings because of the privative provisions of s19(9) of the Inspector-General’s Act and that, in any case, because the review process is not concluded, the proceeding is premature. The Crown also challenged the Court’s power to make the declaration of inconsistency Mr Zaoui seeks.

The Inspector-General, through counsel, offered to provide any assistance sought but otherwise abided the decision of the Court. Mr Harrison suggested it was odd that the Director, not the Inspector-General, invoked s19(9).

The Human Rights Commission took the position, generally supportive of Mr Zaoui, that it was of prime importance to New Zealand, a long-term adherent to fundamental human rights values, that we be seen as maintaining international human rights standards to the maximum extent compatible with national and international security.

Section 19(9) of the Inspector-General’s Act: a privative clause?

The Crown asserts s19(9) of the Inspector-General’s Act deprives this Court of jurisdiction to hear this case. If correct, the subsection will, of course, bring this proceeding to an end. It is therefore convenient to address this threshold question first.

The subsection reads :

(9) Except on the ground of lack of jurisdiction, no proceeding, report, or finding of the Inspector-General shall be challenged, reviewed, quashed, or called in question in any Court.

Section 19(9) is imported into the review by s114I(6)(b) “with any necessary modifications”. Ms Clark submitted the security purpose of Part IVA mandated a narrow interpretation of the phrase “lack of jurisdiction”.

She also submitted granting judicial review at this stage of the review was inconsistent with the expedition with which matters under Part IVA must proceed and that if the Inspector-General confirms the Certificate Mr Zaoui – but not the Crown – can appeal to the Court of Appeal on grounds similar to those raised in this case. She also submitted the Inspector-General’s status as a former High Court Judge was sufficient safeguard for Mr Zaoui’s interests so judicial review was unnecessary and a restricted view of the availability of that form of proceeding was consistent with Part IVA and other sections of the Act.

Amplifying those submissions, she acknowledged that courts have interpreted privative clauses as not preventing judicial review for errors of law including breaches of natural justice but submitted that, here, s114I(6)(b) necessarily modifies s19(9) to make it a jurisdictional demarcation clause requiring restrictive interpretation relying on Anisminic Ltd v The Foreign Compensation Commission [1969] 1 All ER 208. Acknowledging that the House of Lords there held a privative clause ineffectual against a void determination, she nonetheless relied on the observation of Wilberforce LJ (as he then was at 243-244) that a tribunal’s authority is to be derived from considering its empowering legislation and Bulk Gas Users Group v Attorney-General [1983] NZLR 129, 133 where Cooke J (as he then was) opined that the necessity of defining what questions of law were remitted to the tribunal’s conclusive decision, is “a matter of statutory interpretation”. However that observation is immediately preceded by the following (ibid) :

… It is generally accepted in New Zealand that an Act may empower an authority to decide a question of law conclusively and that a privative clause of this kind will then protect the authority's decision even though an error of law (in the opinion of the Court) may be apparent on the record: Attorney-General v Car Haulaways (NZ) Ltd [1974] 2 NZLR 331.

But it is clear that such a clause does not apply if the decision results from an error on a question of law which the authority is not empowered to decide conclusively, even though in carrying out its functions it will have to form a working opinion on the question. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 is the leading modern case and more recently the judgment of the Privy Council in South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 is to the same effect.

It is further clear that courts of general jurisdiction will be slow to conclude that power to decide a question of law conclusively has been conferred on a statutory authority or tribunal.

Ms Clark also drew attention to Hawkins v Minister of Justice [1991] 2 NZLR 530, 536 where Richardson J (as he then was) observed that the power to exercise statutory discretion is assessed according to the nature and subject matter of the decision when “set in its broad legislative context” which involves consideration of the object of the grant of the power and the role of the body entrusted with it. She also relied on Fulcher v Parole Board (1997) 15 CRNZ 222, 245 for Thomas J’s view that despite the fact that “privative clauses are approached guardedly, if not aggressively, by the courts” there is “scope for the Court to manifest deference to the determinations of tribunals and administrative bodies on questions of law including the interpretation of their governing statute” though he, too, said he would “root the deference in the process of statutory interpretation”.

In considering the appropriate interpretative approach, Ms Clark submitted issues such as those raised by Mr Zaoui were considered by Parliament which considered Part IVA to strike the appropriate balance between deportation and humanitarian concerns and between the interests of the State and individual rights ((1998) 572 NZPD 12789; (1999) 575 NZPD 15499; (1999) 576 NZPD 15499; (1999) 576 NZPD 15625, 15756, 15760). Accordingly s19(9) should be interpreted restrictively. In that last reference the then Opposition spokesperson on immigration, now the Minister, said :

Although I was pleased that the right to be heard in person by the inspector-general was confirmed in this Bill, I have residual nervousness about the lack of information the residence or asylum seeker will have to work on. It is a rule of natural justice that people should know the charges that have been made against them. This is a departure from the rule of natural justice, and Ministers will have to demand robust information before they accept such a Certificate.

Ms Clark next turned to the s114I(3) requirement for the review to be conducted with “all reasonable speed and diligence” and to a number of other provisions in the Act and Part IVA providing short time limits and requiring processes to be conducted speedily to found a submission that the availability of judicial review ran counter to that theme.

That, too, was the thrust of her submission that the availability of appeal to Mr Zaoui alone on confirmation of the Certificate on grounds similar to those arising in judicial review indicated the review process should be restricted. She relied on Peters v Davison [1999] 2 NZLR 164, 181 where the joint judgment of Richmond P, Henry and Keith JJ held :

Error of law is a ground of review in and of itself; it is not necessary to show that the error was one that caused the tribunal or Court to go beyond its jurisdiction. The effect of the House of Lords’ decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 as interpreted in O’Reilly v Mackman [1983] 2 AC 237 at p 278, and in R v Lord President of the Privy Council, ex parte Page [1993] AC 682 at p 701, is in general to render redundant any distinction between jurisdictional and non-jurisdictional error of law.

And in Bulk Users Group (supra at 136) it was observed that a factor in deciding whether judicial review was available was whether the decision was appealable on questions of law. In the immigration area she submitted the availability of alternative remedies led to the refusal of review proceedings in R v Secretary of State for the Home Department ex parte Swati [1986] 1 All ER 717, 723-724, an approach followed in New Zealand in the Accident Compensation area (Accident Compensation Corporation v Wellington District Court [2001] NZAR 265, 271).

She pointed to a number of provisions where the Act limits or debars review proceedings as indicating a restrictive approach to judicial review of the Inspector-General should be adopted. They included s114H(4) debarring review proceedings in respect of the Certificate or the decision to make it and s146A providing a special regime for judicial review proceedings under the Act.

In response, Mr Harrison also referred to Bulk Gas Users Group and South East Asia Fire Bricks (supra at 369-370) where the Privy Council held that ouster provisions “must be construed strictly” and will not be affected if the tribunal has acted without jurisdiction. In O’Regan v Lousich [1995] 2 NZLR 620, 626-627 Tipping J held :

Parliament grants the decision maker the power to decide on the footing that the power is to be exercised lawfully (ie correctly in law), fairly (ie according to the rules of natural justice, if applicable) and reasonably (ie within the bounds of reason – the Wednesbury principle). If the decision maker goes wrong in law, acts unfairly or makes an unreasonable decision, the decision is regarded as having been made ultra vires and thereby the decision maker exceeds his or her jurisdiction.

In O'Reilly Lord Diplock said that if a decision maker, whose jurisdiction is limited by statute, mistakes the law, he has asked himself the wrong question, ie a question into which he had no power to inquire. Thus it was a question which he had no jurisdiction to determine. …

On this basis the question is not whether the decision maker has made a wrong decision but whether he has inquired into and decided a matter which he had no right and therefore no jurisdiction to consider. This analysis was developed in cases where the decision maker had made an error of law. In doing so he had made a wrong decision and thereby asked himself the wrong question. If the decision maker acts unfairly it is not a case of asking himself the wrong question. It is rather that the power to decide is given on the implicit basis that it will be exercised fairly. Parliament gives no power to decide unfairly and therefore by doing so the decision maker exceeds his powers. His decision is therefore ultra vires and outside his jurisdiction. Similarly, if a decision is unreasonable in the relevant sense it is ultra vires and in excess of or outside the decision maker's jurisdiction.

The process of reasoning whereby a person misdirecting himself in law was said to have asked himself the wrong question can now be simplified into saying that a power to decide is given on the basis that it must be exercised on the correct legal basis. … Thus we are back to the proposition with which I started, namely that if a decision maker goes wrong in law, acts unfairly or makes an unreasonable decision he will have acted ultra vires and in excess of jurisdiction.

It is, of course, perfectly possible for Parliament to provide, if it chooses, that the decision of a particular decision maker shall not be impugned on certain bases or indeed on any basis. With most types of tribunal and decision maker there is a presumption that Parliament does not intend the decision to be conclusive irrespective of errors of law, unfairness or unreasonableness: …

Mr Harrison submitted s19(9) was enacted after the decision in Bulk Gas Users Group and the section should be interpreted conformably. But if the suggested errors by the Inspector-General are made out, that, clearly, in terms of the authorities, amounts to a “lack of jurisdiction” to continue to conduct the review in breach of natural justice and on a legally erroneous basis. Any confirmation of the Certificate in those circumstances would not be a “proceeding report or finding”. Since the Inspector-General is subject to correction for error of law by the Court of Appeal if the Certificate is confirmed, Mr Harrison submitted it could not have been Parliament’s intention to exclude judicial review of his ruling if such was legally erroneous.

He also submitted an effect of BoRA s27(2) was to mandate a restrictive interpretation of privative clauses. (“A Bill of Rights for New Zealand” White Paper 1985 para 10.172 p110; Joseph Constitutional and Administrative Law in New Zealand 2nd ed 2001 para 20.7.3 p768).

Those authorities show courts nowadays approach privative clauses presuming Parliament intended decision-makers’ findings not to be immune from review if the decision has not been reached on the correct legal basis. That can arise if it is not legally correct, not in accordance with applicable rules of natural justice or subject to Wednesbury unreasonableness. If the Inspector-General’s decision on Mr Zaoui’s review is incorrect in any such sense it will be reached with “lack of jurisdiction” as the authorities define the phrase and accordingly s19(9) will be inapplicable.

Construing the Inspector-General’s jurisdiction as a matter of statutory interpretation, an exercise undertaken later in this judgment, it would not be straining the Act to suggest his position is unique in New Zealand law. In that light, the provisions of the Act and the authorities on which the Crown relies are of less persuasiveness. Judicial review may be debarred or limited by other provisions of the Act but these relate to different functions. Judicial review is debarred for the making of a Certificate but that is at a different stage of the process. There is an appeal to the Court of Appeal on a point of law should the Certificate be confirmed, but that, too, is at a different stage of the process. Ms Clark relied on the status of the Inspector-General but that is a mark of the sensitivity of the material which must be reviewed. And even judges can be subject to judicial review.

There is more weight in Ms Clark’s reliance on the expedition with which actions under Part IVA are required to occur. That provides some indication that judicial review should be excluded but the contrary argument is that, even if judicial review slows the review process, it is much to be preferred that the process proceeds on the correct legal basis than that it risks requiring to be repeated.

For all those reasons the conclusion must be that s19(9) does not oust the jurisdiction of the court in judicial review proceedings to correct errors of law in the forecast procedure to be undertaken during the review process. The Court accordingly declines to accept that submission on behalf of the Crown.

The judicial review is premature?

Ms Clark submitted hearing a judicial review proceeding at this relatively early stage of the Inspector-General’s review was premature. The interlocutory decision was not “ripe” for review and review will be unnecessary should the Inspector-General decline to confirm the Certificate. Further review proceedings might be brought at later stages. The review proceeding only arose because, at Mr Zaoui’s request, the Inspector-General issued an interlocutory decision as to how he intended to conduct the review. It was too early, she submitted, to decide whether any errors of law will prove material in the sense of affecting the decision (Peters v Davison (supra) at 189).

She relied on an article “Prematurity and Ripeness for Review” by Prof Beatson (“The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade” (1998) p221) where the learned author first posed the question whether a final decision must be awaited or whether review proceedings can be brought for legal error “for instance in relation to an interlocutory matter”. In a sub-part entitled “Preliminary and Interlocutory Decisions” the following appears (at 227) :

This is the one area in which reference is often made to ‘prematurity’ when considering the scope of the supervisory jurisdiction. So, for example, attempts to review interlocutory decisions concerning the reception of evidence, the disclosure of information, adjournments, or other aspects of the conduct of the proceedings have generally been unsuccessful.

In reply, Mr Harrison relied on a wealth of New Zealand authority to the effect that inquiries and other decision-making processes can be reviewed for interlocutory or preliminary decisions (eg Fitzgerald v Commissioner of Inquiry Into Marginal Lands Board [1980] 2 NZLR 368, The Marginal Lands Board Commission of Inquiry into Fitzgerald Loan [1980] 2 NZLR 395). Mr Harrison made the point that the Judicature Amendment Act 1972 s4(1) expressly refers to judicial review of “proposed” exercise of statutory power. In Peters v Davison itself, Mr Harrison submitted the Court of Appeal made clear there was no objection to judicial review at an interlocutory stage. Indeed, in the joint judgment to which reference was earlier made (supra at 183) there was a section headed “Judicial Review During the Course of the Inquiry” and the joint judgment said that “underlying these judicial interventions during the course of Commissions of Inquiry is the obvious public interest that Commissions of Inquiry be conducted in accordance with the law”.

Mr Harrison submitted that the interlocutory rulings will have a significant effect on the review and, if wrong, must be regarded as amounting to material errors of law. The prospect of repeated reviews, he submitted, was far-fetched and, in any event, were further errors made, it was only right they be corrected.

Having reflected on all those matters, the view must be there is no basis to conclude that the judicial review proceeding should not continue because it is not “ripe”. With respect to the English position as discussed in Professor Beatson’s article, there is ample authority to the effect that in New Zealand interlocutory decisions or rulings made during the course of exercising or proposing to exercise statutory power are amenable to judicial review at that point. There is every good reason for that view: if legal error can be corrected at that stage it lessens the chance of legal error undermining the final decision. There is express statutory power to review “proposed” exercises of statutory power.

The Crown’s objection on this ground to the review proceeding continuing is not made out.

Neither of the bases for halting the review proceedings at this stage having been made out, it is appropriate to turn to the merits of the case.

Interpretation of s114I : 1 : General

Section 114I obviously being pivotal to the review it is appropriate to consider the matter in increasing levels of generality commencing with s 114I itself with the sections imported into it, then construing it in the context of Part IVA, then considering the section within the context of the balance of the Act, then considering it within other statutory contexts including BoRA and finally seeing it within the context of the international human rights instruments. Counsel’s submissions can conveniently be dealt with as part of the discussion at each stage.

2: Section 114I and the sections imported into s114I

Counsel did not greatly focus on the wording of s 114I, but there are a number of matters which arise from its terms.

In the first place, the Inspector-General’s process is described as a “review” of the Certificate. It is not an “appeal” nor a “rehearing” nor any other similar term. That might suggest the Inspector-General’s role is confined to a largely mechanical reconsideration of the Director’s making of the Certificate having regard to the information on which it is based, its credibility and whether the person named falls within the relevant security criterion.

However reflection indicates that construction is untenable if for no other reason than that the Inspector-General has all the powers under the Inspector-General’s Act and, in particular, s 19(4) applies. That gives persons in the position of Mr Zaoui the right to present their case, call witnesses and be represented by counsel. In addition, subs (5) empowers the Inspector-General to take account of “any relevant information” that is not classified. When the Inspector-General has both the obligation and the power to receive so much additional information, it must follow that his process is not confined to a mechanical review only of the information which underlay the making of the Certificate.

A second reason for reaching that conclusion is that s114I(4) makes it the Inspector-General’s function on review to consider whether the certificate was “properly” made. Indeed Parliament used the word “properly” three times in subs(4). It is noteworthy that Parliament did not use words such as “validly” or “correctly”. “Properly” means “in a proper manner” or “as it ought to be” (Oxford English Dictionary 2nd ed. Vol. XII p639). That further suggests a discretion available to the Inspector-General on review.

A third reason is that all parties accept that the process of the review will be affected if information is received since the making of the Certificate which is relevant to Mr Zaoui or the credibility of information relied on becomes suspect. The use of the word “is” in ss114D(1)(b) and 114I(4)(b) (c) makes clear the review is an ongoing process. That confirms review is not a mechanical reassessment of information on which the Director relied on making the Certificate.

All of that may be understandable given the broad terms of the definition of “classified security information” and thus whether a particular person may be a threat to the security or international relations of this country. Further, in relation to the credibility of that information, evidence shows this is an area where information can be unreliable, second - (or more) hand and can even be misinformation deliberately disseminated.

In that regard, although the procedure for conducting the review was proposed by Mr Zaoui’s advisors, largely consented to by the Crown and adopted by the Inspector-General, it is noteworthy, that, in essence what it proposes in Steps 1-10 is the provision to the Inspector-General of all information available to the Director before he made the Certificate, classified and non classified, relevant to the certificate and irrelevant, credible and accurate or not and all the reasons which led the Director to conclude when providing the Certificate that Mr Zaoui’s continued presence in New Zealand constituted a threat to national security or a danger to the security of this country. It is not until after step 10 that the Inspector-General is to provide Mr Zaoui with information, both that relating to credibility, accuracy and security and that required by fairness including the Inspector-General’s conclusion that certain information was not classified security information. It is only in performance of step 13, the last step proposed on Mr Zaoui’s behalf, that his evidence and material is to be considered in a final assessment of both the classified and non classified security information for credibility.

With respect to all those involved in the process to date, that procedure would appear to be defective and not to accord with Part IVA in general and s 114I in particular.

The Inspector-General’s fundamental function in conducting a review under s 114I is to determine whether the Certificate was “properly made or not”. There are two statutory paths to which of those conclusions is ultimately chosen.

The first is in terms of s 114I. But in order to explain the statutory power under that section, it is necessary to revert to the Director’s initial provision of the Certificate to the Minister under s 114D. A careful reading of that section shows the process by which a Certificate must be made is:

The Director must first hold “classified security information” as defined in s 114B relating to a non-New Zealand citizen about whom decisions may be made under the Act and which he is satisfied is credible under s 114I(1)(b); and

The “classified security information” must also relate to a “relevant security criterion” as defined in s 114C which if applied to the individual would mean they fell within that criterion.

In Mr Zaoui’s case the making of the Certificate meant the Director must have been satisfied on both those matters and therefore concluded Mr Zaoui came within s 114D(4)(6) namely that he constituted a threat to national security under s 72 – the only section relied on - and as a result there were reasonable grounds for regarding him as a danger to the security of New Zealand under Article 33.2 of the Refugee Convention.

When applied to s 114I, it is apparent that the first statutory path to the Inspector-General’s conclusion that the Certificate was “properly made or not” is to check whether both limbs of the Director’s actions in making the Certificate were proper in the sense of considering whether the “classified security information” on which the Director relied was “properly” regarded as coming within the definition in s114B and was credible and, secondly, whether Mr Zaoui, a person named in the Certificate, was “properly” covered by the relevant security criterion as defined in s114D. In considering compliance with this statutory path, the only difference between the assessments undertaken by the Director and by the Inspector-General is the discretion connoted by the triple use of “properly” in s114I.

Introducing the term “properly” in s1141 – particularly in relation to the Inspector-General’s ultimate task in deciding whether the Certificate was “properly made or not” – must mean both that the Inspector-General must reconsider whether the information was “properly” regarded as “classified security information” and whether when a “relevant security criterion” is applied to an individual in the light of the information, that person is “properly” covered by the criterion and that the information is credible having regard to its sources and nature and relevant to that criterion. In undertaking that reconsideration the Inspector-General must have regard to the information and evidence provided by the individual pursuant to the second statutory path to the ultimate decision.

That second statutory path stems from s19 of the Inspector-General’s Act and in particular from the person’s right to be heard, right to give and call evidence and right to be represented by counsel. Those are not empty rights. They guarantee “fairness” (s114A(c)). The Inspector-General is required to take all that material into consideration though the weight he gives it is for him. It bears upon and must have the capacity to influence the discretion vested in the Inspector-General in reaching his ultimate decision as to whether the Certificate was “properly made or not”.

The fallacy in the review process proposed by Mr Zaoui’s advisors, consented to by the Crown and adopted by the Inspector-General, is that it largely sees the two statutory paths to the decision whether the Certificate was “properly made or not” as running in series rather than in parallel.

In deciding whether the “classified security information” underlying the security risk Certificate was “properly” so to be regarded and was credible, the Inspector-General must take account of all the information received by him through both statutory paths relevant to that question. In deciding whether Mr Zaoui was “properly” covered by a “relevant security criterion”, again the Inspector-General must consider all information furnished to him through both statutory paths in deciding that question. In deciding whether the Certificate was “thus … properly made or not” (emphasis added) the Inspector-General must consider all the information furnished to him through both statutory paths in reaching his conclusion.

And, while the Inspector-General’s function in reviewing whether the Certificate was “properly made or not” is not an adversarial one in the traditional partisan sense, in evaluating the “classified security information” and its credibility and evaluating whether a “relevant security criterion” properly relates to Mr Zaoui, then, as fairness requires, up to the limit of the statutory bar on divulgment in s114B, he must be entitled to know what that “classified security information” is, why the Director regarded it as credible, why it was thought relevant to a security criterion, and what underlay the Director’s conclusion that he was properly covered by a “relevant security criterion”, that is to say why the Director concluded he constituted a threat to national security or a danger to the security of New Zealand in terms of Article 32.2 of the Refugee Convention.

The conclusion to be drawn from that analysis is that Mr Zaoui, the Crown and the Inspector-General have all been working under a methodology proposed for the review which fails to focus appropriately on the prime question the Inspector-General must determine, namely whether the Certificate was “properly made or not”. Because the methodology essentially requires consideration of all matters underlying the Certificate before evidence, information and submissions from Mr Zaoui and on his behalf, the process has not focused, first, on a right fundamental to fairness and natural justice, namely Mr Zaoui’s right to know what is alleged against him to the maximum extent not prohibited by Part IVA and giving full effect to the natural justice right conferred by s19 of the Inspector-General’s Act and s27(1) BoRA to call or give evidence and be represented by counsel. To the extent the interlocutory decision does not reflect those rights, the Inspector-General has been led into error of law by the parties’ essential adoption of the methodology.

If the interpretation Mr Zaoui puts on the Inspector-General’s interlocutory decision is correct, then Mr Zaoui is entitled to relief, though not precisely in the form sought. The form of relief will be considered at the end of this judgment.

It has already been observed (para [64]) that the Inspector-General’s role is unique. He expressed it as “quasi-judicial” (para 28). Doubtless it is, but when one party, Mr Zaoui, is proposed not to be given any of the underlying information on which his right to review arose and when the right of the Director to participate in the review is challenged and when, as a result, the right of either to, as it were, know of and meet the case against him is absent, the role of the Inspector-General is plainly far from a normal judicial role. In essence, if the review proceeds as currently proposed, it seems the Inspector-General will have two bodies of information, each prepared without reference to or in ignorance of the contents of the other, unable to be measured or challenged by the other, and he is required on that material to determine whether the Certificate against Mr Zaoui was properly made. A difficult role indeed and one which should be eased by Mr Zaoui having access to the information about him which underlay the making of the Certificate to the maximum extent allowed by law.

3: Section 114I in the context of Part IVA

The scheme of Part IVA was set out earlier. One of its fulcrum provisions is s 114A, the Objects section.

Mr Harrison submitted Part IVA is linked to a number of other provisions of the Act, to the international human rights instruments and jurisprudence and to BoRA in a way which entitles Mr Zaoui to the information summary and to the natural justice he seeks. He particularly relied on s 114A(c)(d) and developed a detailed analysis of Part IVA in support. He submitted significant omissions from Part IVA were powers of deportation or removal and the Inspector-General’s review was a substitute for Court review of the merits of the Certificate. That, he submitted, meant the review should be on the merits in light of all evidence and material adduced and with “fairness” and “individual” rights (s114A(c) (d)) being accorded maximum possible weight in the balance between public interest and individual rights. In that, he relied on the explanatory note to the Immigration Amendment Bill 1998 which said (p iii) the “immigration decision-making process and fairness generally require that the individual concerned has access to any information held about them” and the Bill establishing a “special security process to allow for such ‘classified security information’ to be considered in immigration decisions without putting the classified nature of that information at risk while ensuring that the rights of the individual are protected through a process of independent scrutiny” (ibid). The explanatory note also spoke of s 114A providing a “balance” between protecting classified information and the rights of individuals (p xli). He noted the report from the Social Services Select Committee on the Bill, including introduction of measures to ensure refugee applications be determined before removal (p vi) and the substitution in s 114I(4)(b) of “credible” for “accurate” and “reliable”. He also relied on the inclusion of an express right to be heard (p vii) in “this context which involves a delicate balance between the public interest on the one hand and the rights of the individual on the other hand”.

Ms Clark relied on the provisions debarring disclosure of “classified security information” to found a submission that the making of a Certificate is principally to inform the Minister that the Director is satisfied that the person constitutes a threat to national security. So the Certificate is properly regarded as a platform for further action and is without other significance. She submitted the focus of the Inspector-General’s review is on the making of the Certificate not what happens following confirmation. That is correct as far as it goes but does not directly bear on the review process itself or matters the Inspector-General must take into account. She did, however, emphasise the limited nature of a review in terms of s 114I and thus the limited scope of the hearing. Having regard to that, she submitted BoRA, the international human rights instruments and the international jurisprudence were all irrelevant.

Ms Clark did, nonetheless, submit that although the review was to determine whether there were grounds for the initial making of the Certificate, whether grounds still existed for maintaining it and whether new information provided a further basis for the Certificate at the time of the review suggested the review process could be “iterative” as more information came to hand. It was to be expected that in those circumstances the Inspector-General would modify his procedure. She went so far as to include, in a list of 11 what she termed available procedural protections, “provision for a written summary of the allegations against the individual” which she submitted arose out of s19(8) of the Inspector-General’s Act. Mr Harrison said that is not something which Mr Zaoui has received, whether under s 19(8) or at all, and, as he said in reply, with the addition of the word “comprehensive” that is exactly what Mr Zaoui and his advisors have long been seeking. Were the Inspector-General as opposed to the Crown to adopt Ms Clark’s list of procedural protections, one branch of the case would likely be rendered redundant.

Ms Clark’s submissions in relation to the human rights dimension, both generally and in the context of Part IVA, focused principally on the Director’s role. She accepted that in principle the Director’s acts engage BoRA, either by his being part of the Executive branch of government or by his acts being done in the performance of a public function (s 3(a) (b) BoRA), but the Director denies he is bound by the human rights dimension. His role is confined to security matters and assessing an individual’s security risk. Since the Director’s role under s 114C(6) was, in Mr Zaoui’s case, assessing whether there were reasonable grounds for regarding him as a danger to the security of New Zealand in terms of Article 33.2 of the Refugee Convention, Ms Clark submitted that nothing in Part IVA required the Director to investigate matters such as possible torture if Mr Zaoui is refouled. Those are the province of the Minister. While that may well be true, it, again, is of no great assistance in assessing the Inspector-General’s role. That role, she submitted, is limited to determining whether the Certificate was properly made. That in its turn involves considering whether Mr Zaoui posed a security risk. She submitted the Inspector-General’s role was to approve or not the use of security information or its proposed use and informing the Minister that the named person meets a relevant security criterion so the Minister can have the basis to make immigration decisions in respect of that person. The Inspector-General, she submitted, is the “expert security watchdog”. That too, has a certain weight in terms of statutory interpretation but overlooks the Inspector-General’s obligation to hear Mr Zaoui’s evidence, hear his witnesses as to his “record, reliability and character”, hear the submissions made on his behalf by counsel and receive such other evidence as he thinks fit. Those provisions must be given appropriate weight in bearing on the central review question whether the Certificate was properly made, even though up to now that material would be put before the Inspector-General without Mr Zaoui knowing the contents of the “classified security information” leading to the Certificate.

As earlier mentioned s 114A is significant in the construction of Part IVA and s 114I in particular.

A close reading of s 114A shows that Parliament effected a careful balancing of state and individual rights. Sub-paras (a) (b) are a statutory recognition that classified information is held by the SIS which is relevant to immigration matters and there is a public interest in protecting that information.

Sub-clauses(c)(d) are the pivot. They recognise public interest requires classified information to be used for immigration purposes (not just Part IVA matters) but “equally that fairness requires some protection for the rights of any individual affected”. The use of the qualifier “some” is instructive. Plainly not all individual rights are to be protected. The use of the word “fairness” is also instructive. It indicates the process must be fair within the limited protection for individual rights. And it is to the extent of “fairness” that some protection is accorded to individual rights affected by the use of classified information for immigration purposes. The use of the word “equally” is also instructive. Parliament did not chose a formulation such as “by way of balance” or similar. “Equally” strongly indicates that the use of classified information and an individual’s rights should be held, if not in equipoise – the use of “some” indicates perfect balance may be unachievable – then certainly to such an extent that use of the information for immigration purposes and the protection of affected individuals’ rights can be said to satisfy the “fairness” and “equally” requirements.

The “balance” – not, be it noted, “equally” in s114A(d) – between public interests and individuals’ rights is said to be achieved by allowing someone with the qualifications and standing of a former High Court Judge to consider the information and approve its proposed use. That, in combination with s114I and s 19(4)(5) (6) (8) of the Inspector-General’s Act clearly gives the Inspector-General power to permit classified information to be used, that is to say, in this case used by being given to Mr Zaoui so as to enable the Inspector-General to perform his function under s114I(4) of deciding whether the Certificate was properly made. Section 114A thus focuses on the use of classified information in performing that function: while it may limit the information which can be given to Mr Zaoui, it does not limit the material he may put before the Inspector-General to assist him in reaching his decision.

Sub-clauses(e) and (f) have two functions. The use approved by the Inspector-General of classified information is limited in the sense that it will not open up further avenues under the Act. The second is that removal or deportation of individuals under the Act follows immediately on conclusion of the statutory procedures, particularly of those who pose a security risk. It is only the former function which can affect the present proceeding and then only in a restricted sense.

So it follows that what Mr Zaoui seeks by way of a summary of the “classified security information” held in relation to him is not prohibited by s114A. Indeed, to the extent his rights are affected by the information his rights are entitled to “some” protection, protection to the extent of “fairness” and in a manner which satisfies the test of “equally” in the manner discussed.

The balance of Part IVA must be construed conformably with s 114A. In particular, although the Inspector-General is empowered to approve the proposed use of classified information which affects Mr Zaoui’s rights, that use and disclosure is limited by the definition of “classified security information” in s114B. So information which in the opinion of the Inspector-General – substituted for the Director –is within both s114B(a) and (b) cannot be divulged to Mr Zaoui. However, that “classified security information” can be bowdlerised so as still to comply with the definition of “classified security information” that “cannot be divulged” but is still informative as the basis for the Certificate. That would appear to be indicated if not required by the “fairness” and “equally” requirements of s 114A(c). Evidence suggested overseas jurisdictions achieve that objective in their summaries of “classified security information”.

As far as it relates to Mr Zaoui the definition of “relevant security criteria” in s114C(4)(6) and the strong terms of s 114F make clear that whether a Certificate has been properly issued in the sense of complying with an appropriate security criterion and the effect of the issue of such a Certificate is a serious matter for the individual named. The gravity of those matters may be taken as indicating that, to the extent permissible, Mr Zaoui should know what is raised against him in order to try to rebut it by material he is entitled to put before the Inspector-General and thus ensure the rigour of the process of deciding whether the Certificate was properly made. That is also supported by Mr Zaoui’s entitlement to information and the other significant rights in s 114H(2).

Those rights are also buttressed by the Inspector-General’s obligation to give written reasons for a decision to confirm or not. It is noteworthy that the views just expressed as to Mr Zaoui’s entitlement to information are also indicated by the limitation on the reasons in s114J(4). They must be provided to the extent they do not prejudice the “classified security information”.

If the Certificate is confirmed then, subject to the appeal on a point of law in s 114P and the Minister’s discretion concerning reliance under s 114K, persons in Mr Zaoui’s position are then to be dealt with swiftly and in accordance with the objects in s 114A(e)(f).

Therefore, seeing s 114I in the context of Part IV particularly s114A, there is nothing to prevent Mr Zaoui receiving an appropriately worded summary of “classified security information” which affects him but which complies with the statutory prohibitions on disclosure, and nothing to say that natural justice has no application to him. Indeed, for the reasons discussed, the legislative indicia favour him, particularly in relation to the summary.

4: s114I in the context of the Act

The principal thrust of Mr Harrison’s submissions on this aspect of the matter, were first, that other provisions of the Act indicated that Part IVA and the review should be regarded as invoking the Refugee Convention and its supporting jurisprudence and Mr Zaoui’s position should be assessed in that regard. In that respect, Mr Harrison pointed to the fact that the Immigration Amendment Act 1999 inserted a new Part VIA into the Act, including s 129A which says the object of that Part is to provide a statutory basis “by which New Zealand ensures it meets its obligations under the Refugee Convention”. Mr Harrison particularly relied on s 129X earlier cited and made the point it was not subject to Part IVA. As Mr Zaoui has been accorded refugee status in New Zealand he is entitled under s 129X not to be deported from this country, including by means of Part IVA, until his deportation is permitted in terms of the listed Articles in the Refugee Convention. In that, he relied both on the terms of the statute and on Attorney-General v Refugee Council of New Zealand Inc. [2003] 2 NZLR 577, 632 where Glazebrook J (para [190]) said that Part IVA’s purpose “can be seen as reinforcing s 129X and putting it beyond doubt that s 129X applies to Part IVA”. Mr Harrison relied on other passages from Refugee Council and Attorney-General v E [2003] 3 NZLR 257 to found a submission that it was appropriate in immigration matters for statutes to be read conformably with New Zealand’s international obligations particularly under the Refugee Convention (see E at 259 para [7], 265 para [33], 270 para [44], Refugee Council at 591 para [28], 601-602 paras [73] [74], 610 para [103], 612 para [111] and concerning the UNHCR guidelines, 637-638 para [215], 646-647 paras [255]-[257], and saying the Act should be interpreted consistently with BoRA where there are no contrary legislative indications (650 paras [271]-[272])). Since Mr Zaoui enjoys refugee status and his current position is protected by s 129X, it is unnecessary to consider those passages in detail save to note they indicate the Act should be interpreted conformably with the international human rights instruments and BoRA.

Mr Harrison submitted the definitions of “relevant security criteria” showed increasingly stringent matters to be considered. The most stringent applied to refugees so, he submitted, a review of the Certificate relating to Mr Zaoui, a refugee facing torture or death if deported, were more stringent than other persons to whom the Act applied. Accordingly, whether or not those criteria were properly applied to him should be more rigorously examined. That in its turn indicated Mr Zaoui was entitled to the information he sought. He submitted the Inspector-General was wrong to rule out the potential for Mr Zaoui’s deportation. He pointed to the fact that s 114C(6) reproduced the test in Art 33 of the Refugee Convention leading to a submission that the applicability of that criterion to Mr Zaoui should be assessed by reference to New Zealand’s adherence to the Convention.

Ms Clark’s response was that those submissions underplayed the term “threat to national security”, decisions on which had a significant policy element. That led to courts’ traditional deference to the Executive on such an issue (Rehman).

There can be no dispute that to the extent mandated by the statutory provisions, Mr Zaoui’s position should be assessed conformably with the Refugee Convention. The difficulty he faces is the extent to which the statute, Part IVA in particular and s114I especially, limit the applicability of those instruments. The decision must be that though they inform construction of Mr Zaoui’s rights and in particular the right not to be deported or refouled unless the Refugee Convention permits because he is protected from deportation under s 129X, so far as Mr Zaoui is concerned, Part IVA and, in particular, s 114I focus on a consideration as to whether the Certificate relating to Mr Zaoui was “properly” made in light of the information on which it was based and the material Mr Zaoui is entitled to place before the Inspector-General. The Refugee Convention is relevant but only of secondary relevance in those respects. The balance of the Act is of little assistance in this case as it deals with a number of distinct matters.

5: s 114I in the context of BoRA

Counsel for Mr Zaoui strongly invoked ss 8, 9 and 27(1) of BoRA in support of both major aspects of his case. Those sections read:

8. Right not to be deprived of life – No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

9. Right not to be subjected to torture or cruel treatment – Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

…

Right to justice – (1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

It was also submitted that, potentially, Mr Zaoui’s position might engage freedom of thought, conscience and religion, freedom of expression, manifestation of religion and belief, freedom of peaceful assembly and freedom of association (BoRA ss13-17).

It was submitted the Inspector-General was bound by BoRA because that Act binds “any person… in the performance of any public function, power or duty conferred or imposed on that person… by… law” (s3(b)).

Recognising that any threat to Mr Zaoui’s life and any possibility of his being subjected to torture or cruel treatment only arises were he deported, it was submitted on his behalf that BoRA was engaged nonetheless, that Part IVA should be interpreted consistently with BoRA (s 6) and the Inspector-General’s review should be conducted either “in accordance with” or “having regard to” the international human rights instruments (see eg Neilsen v Attorney-General [2001] 3 NZLR 433, 441 paras [33] [34], Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, 16 para [16]).

In submitting Mr Zaoui’s treatment would breach BoRA were he to be deported because of the possibility of torture and death were he returned to Algeria, Mr Harrison strongly relied on Suresh where the appellant, a refugee from Sri Lanka and an alleged member of the Liberation Tigers of Tamil Eelam a terrorist organisation whose members were said to be subject to torture by the government of Sri Lanka, was declared to be a danger to the security of Canada. The appellant had presented submissions and evidence to the Minister whose decision it was but had not been provided with a copy of the immigration officer’s memorandum and given no opportunity to respond to it. The unanimous decision of the Supreme Court summarized its findings as follows (paras [3]-[6] pp12-13) :

3 The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.

4 On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society – liberty, the rule of law, and the principles of fundamental justice – values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.

5 We conclude that to deport a refugee to face a substantial risk of torture would generally violate s.7 of the Charter. The Minister of Citizenship and Immigration must exercise her discretion to deport under the Immigration Act accordingly. Properly applied, the legislation conforms to the Charter. We reject the arguments that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague and that ss.19 and 53(1)(b) of the Act violate the Charter guarantees of free expression and free association, and conclude that the Act’s impugned procedures, properly followed, are constitutional. …

6 Applying these conclusions, we find that the appellant Suresh made a prima facie case showing a substantial risk of torture if deported to Sri Lanka, and that his hearing did not provide the procedural safeguards required to protect his right not to be expelled to a risk of torture or death. This means that the case must be remanded to the Minister for reconsideration. …

Section 7 of the Canadian Charter of Rights and Freedoms, though somewhat differently phrased from s 8 BoRA, nonetheless invokes “principles of fundamental justice”.

As counsel for Mr Zaoui submitted, the effect of the decision was to include procedural safeguards such as those for which Mr Zaoui contends into Canadian immigration law. In large measure that conclusion was reached, not just because of the Charter, but also because of the international human rights instruments to which Canada had acceded. Importantly, Suresh makes clear that even though refugees may be under no risk of torture or death in the country which has accorded them refugee status, their deportation by that country to other states where they may face torture and death is not just in breach of the international human rights instruments but is also in breach of provisions such as s8 BoRA.

Noting that the “enquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law” (at 31 para [46]), the judgment continued (at 32 paras [47] and [49]) :

Determining whether deportation to torture violates the principles of fundamental justice requires us to balance Canada’s interests in combating terrorism and the Convention refugee’s interest in not being deported to torture. Canada has a legitimate and compelling interest in combating terrorism. But it is also committed to fundamental justice. The notion of proportionality is fundamental to our constitutional system. Thus we must ask whether the government’s proposed response is reasonable in relation to the threat. …

…

49 The inquiry at this stage is whether, viewed from a Canadian perspective, returning a refugee to the risk of torture because of security concerns violates the principles of fundamental justice where the deportation is effected for reasons of national security. …

The Court then turned to consider whether s 7 was engaged at all given torture was proscribed in Canada and concluded in reliance on an extradition case that (at 35 para [54]) :

… that the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection.

They then held (at 37 para [59]) that the provisions of the Immigration Act and the Charter could not be considered in isolation from the international norms which they reflect. Then, after reviewing ICCPR and CAT the Court noted (at 43, para [70]) that “Article 33 of the Refugee Convention appears on its face to stand in opposition to the categorical rejection of deportation to torture in the CAT” but concluded (at 44 paras [72]-[73]) :

In our view, the prohibition in the ICCPR and the CAT on returning a refugee to face a risk of torture reflects the prevailing international norm. Article 33 of the Refugee Convention protects, in a limited way, refugees from threats to life and freedom from all sources. By contrast, the CAT protects everyone, without derogation, from state-sponsored torture. Moreover, the Refugee Convention itself expresses a “profound concern for refugees” and its principal purpose is to “assure refugees the widest possible exercise of … fundamental rights and freedoms” (Preamble). This negates the suggestion that the provisions of the Refugee Convention should be used to deny rights that other legal instruments make universally available to everyone.

Recognition of the dominant status of the CAT in international law is consistent with the position taken by the UN Committee against Torture, which has applied Article 3(1) even to individuals who have terrorist associations. …

The relevant Canadian legislation included the “danger to the security of Canada” exception as found in s 114C(6)(a) and Article 33.2 of the Refugee Convention. The Court’s conclusion as to the meaning of that phrase was (at 50-51 paras [88]-[90]) :

… to insist on direct proof of a specific threat to Canada as the test for “danger to the security of Canada” is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security.

While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s.53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while “danger to the security of Canada” must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.

These considerations lead us to conclude that a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious”, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.

The Supreme Court then turned to whether the Canadian deportation proceedings were constitutionally valid first holding (at 62 para [115]) that fundamental justice and fairness involved consideration of the statute against the nature of the decision made, the procedures to be followed, the place of the decision in the statutory scheme, the importance of the decision to the individual, legitimate expectations of the person challenging the decision and the choice of procedure by the agency concluding (at 63 para [116]) that the “nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards”. The nature of the scheme, however, needed strong procedural safeguards to allow (at 63 para [117]) “for meaningful participation by the person involved”. Suresh’s position as a refugee was considered highly significant in relation to the importance of the right affected (at 63 para [118]) as “the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s 7”.

Finally, in relation to the procedures chosen by the Inspector-General, the following passage was submitted as relevant to Mr Zaoui’s case (at 64-5 paras [120]-[123]) :

… In this case, the Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s.53(1)(b) decision. As noted above, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister’s choice of procedures since Parliament has signalled the difficulty of the decision by leaving to the Minister the choice of how best to make it. At the same time, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who if deported may face torture and violations of human rights in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit.

Weighing these factors together with all the circumstances, we are of the opinion that the procedural protections required by s.7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under s.53(1)(b) – that is, none – and they require more than Suresh received.

We find that a person facing deportation to torture under s.53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual … Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the material she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. …

Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minster where issues as to its validity arise. …

(See also at 66 and 67 paras [126]-[127]).

Counsel for Mr Zaoui submitted that Suresh should be applicable in New Zealand, a nation party to the same human rights instruments and, it was suggested, with BoRA provisions more explicit than the Charter, if only because the Charter contains nothing comparable with s 27(1). The Suresh approach - interpreting domestic law to conform with the Charter and international law norms - reflects New Zealand’s position and accordingly in the context of the review Mr Zaoui was entitled to assert a right not to be subjected to a real risk of death or torture were he to be deported. It was further submitted that Mr Zaoui was entitled to the protection of New Zealand’s obligations in international law. The s 114C(6)(a) refugee deportation security criteria of reasonable grounds for regarding Mr Zaoui as a danger to the security of New Zealand required both proof of a very serious danger to New Zealand’s security grounded on objectively reasonable suspicion based on evidence and a balancing of such danger against the rights and protections afforded Mr Zaoui under BoRA and international law.

Procedurally international human rights law as discussed in Suresh demonstrated a requirement for Mr Zaoui to be provided with sufficient information to enable him to challenge the Certificate including a summary of the Director’s conclusions without breaching the definition of “classified security information”.

The Crown’s approach was somewhat different. Accepting that natural justice was a flexible concept the content of which varies according to the nature of the body and the kind of decision it makes against the background of relevant legislation (Lloyd v McMahon [1987] 1 AC 625, 702-3 per Lord Bridge of Harwich) the Crown approach was that, in matters involving national security, natural justice is restricted by the circumstances, relying on R v Secretary of State for the Home Department, Ex Parte Cheblak [1991] 1 WLR 890, 902 that :

Nevertheless the exercise of the jurisdiction of the courts in cases involving national security is necessarily restricted, not by any unwillingness to act in protection of the rights of individuals or any lack of independence of the executive, but by the nature of the subject matter.

That meant, the Crown submitted, that once the Inspector-General regarded the classified security information on which the Director relied as being properly so regarded, the s 114B(1) obligation not to divulge the information automatically arose. Even so, the Director had provided a summary sufficient, in his view, to meet the modified natural justice requirement and, having seen both the information and the summary, the Inspector-General had ruled he was able to proceed to the next stage of the review –why he considered that information and its sources to be credible – a process halted by the present proceedings. Steps 5 to 13 remain to be taken.

Mr Harrison’s reply characterized the Crown position as a leap from the inability of the subject of the Certificate to compel access to classified security information to a conclusion that nothing derived from or relating to the classified security information can be supplied as a matter of natural justice. He made the point that nowhere did the Crown spell out what modifications to natural justice Part IVA required and submitted the Inspector-General never addressed whether a summary of the allegations against Mr Zaoui was legally required or necessary in natural justice terms.

The conclusion must be that BoRA is of material assistance to Mr Zaoui’s position. Not only does he have the right to natural justice in s27(1) but, if Suresh is to be followed in this country, should Mr Zaoui’s deportation be considered, ss8 and 9 BoRA would assist him. He is at no risk of torture or death in New Zealand but he can credibly claim to be at risk of torture or death were he to be deported either directly or indirectly to other states.

However, given the Inspector-General’s review is not directly concerned with deportation, ss8 and 9 of BoRA have limited relevance. s27(1) is, however, significant in relation to the Inspector-General’s review both in underpinning procedural safeguards appearing in s19 of the Inspector-General’s Act and the conclusion that Mr Zaoui is entitled to the summary he seeks of the information underlying the Certificate to the extent consistent with the definition of “classified security information”.

6: s114I in the context of the Refugee Convention

New Zealand is a party to the Refugee Convention. It relevantly defines a “refugee” as one who :

Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group of political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …

The RSAA held Mr Zaoui to come within that definition and accordingly found him to be a “refugee”.

However, even refugees may be deported under the Convention under Art 32.1 and Art 33 earlier cited.

Additionally, Mr Zaoui’s position as a refugee is protected by s129X. Irrespective of anything else, he may only be deported from this country if Articles 32.1 or 33.2 so permit.

In that regard, the Court of Appeal’s remarks in E considered in para [111] apply to this aspect of this case.

Further protection for Mr Zaoui if his deportation is to be considered is the fact that “expulsion measures against a refugee should only be taken in very exceptional cases and after due consideration of all the circumstances” (UNHCR Executive Committee Conclusion No 7 1977 “Expulsion”), a stance strongly supported by leading texts in the area. They include Goodwin-Gill (The Refugee in International Law, 2nd ed 1996, p143) which says “the principle of non-refoulement has crystallized into a rule of customary international law, the core element of which is the prohibition of return in any manner whatsoever of refugees to countries where they may face persecution” (emphasis in original) and Lauterpacht and Bethlehem (“The Scope and Content of the Principle of Non-refoulement” in Feller Tűrk and Nicholson, “Refugee Protection in International Law” para 132, p125) who say “there is now an absolute prohibition on refoulement where there is a real risk that the person concerned may be subjected to torture or cruel, inhuman or degrading treatment or punishment” (see also paras 52, 53, p107 and their summary, para 144 p127-128).

Mr Harrison submitted that, in combination, s129X, Part IVA, Articles 32.1 and 33 meant any proposed deportation of a refugee should be approached consistent with New Zealand’s obligations against non-refoulement. He argued Mr Zaoui could not be regarded as a “danger to the security of the country in which he is” or as a “danger to the security” of New Zealand relying, too, on the observations of Feller Tűrk and Nicholson (op cit pp12-13) that “refoulement must be the last possible resort” to eliminate danger. Again, he relied on the discussion in Suresh concerning the test to be applied to whether a refugee was a danger to the security of the host country.

Those arguments are persuasive but this judicial review does not involve deportation. Such will only arise if the Certificate is confirmed, any appeal is dismissed and the Minister decides after taking the international human rights instruments and all other material into account, that Mr Zaoui should be deported because s129X does not protect him and Articles 32.1 and 33.2 permit his deportation. All that can be said at this stage is that all the matters discussed indicate that in deciding whether the Certificate was “properly made or not” the Inspector-General may consider it appropriate to subject the “relevant security criterion” aspect of his consideration to rigorous examination.

7: s114I in context of other international treaties and conventions

Counsel for Mr Zaoui also sought support in the Universal Declaration of Human Rights, Articles 3 and 5 of ICCPR, Articles 6.1 and 7 and CAT Article 3 of which prevents refoulement where there are “substantial grounds for believing that [a person] would be in danger of being subject to torture”. Those articles of ICCPR and the whole of CAT are non-derogable on grounds of public emergency or terrorist threat (ICCPR Article 4.2 CAT Article 2.2). Reference was also made to UNHCR jurisprudence and publications of the UN Human Rights Committee together with Australian and Canadian authority on deportation exposing a person to torture (ARJ v Australia Communication 692/1996, 6 February 1996, GT v Australia Communication 706/1996, 4 November 1997, C v Australia Communication 900/1999, 23 November 1999 and Kahn v Canada Communication 15/1994, 15 November 1994).

Jurisprudence under the European Convention on Human Rights has, it was submitted, also prevented deportation even when attempted on grounds of threats to national security. Recent legislative amendments in New Zealand mirrored those international instruments. Reference was particularly made to the definition of “security” in the SIS Act and the provisions of the Terrorism Suppression Act 2002 which creates a number of new criminal offences, some extra-territorial, and augments existing powers to ban suspected terrorist organisations and associated entities in reliance on “classified security information”. Particular stress was laid on the process of designating such organisations together with the expiry and extension of designations including (s38(3)(4)) where, if the information in support of such applications includes “classified security information” and the designated entity participates in the proceeding, this Court, must “approve a summary of the information” presented by the Attorney-General unless it would involve disclosure likely to prejudice the classified security information and “on being approved by the court … a copy of the statement must be given to the entity concerned”.

It was submitted that all those provisions, both international and domestic, support the view that Mr Zaoui’s position and rights on the review should be construed conformably with the international covenants. In particular, if an approved summary of “classified security information” can be provided to a designated entity under the Terrorism Suppression Act 2002, there is no reason not to provide Mr Zaoui with a similar summary in relation to the Inspector-General’s review. There is considerable force in those submissions.

It is also helpful to consider the authorities on which counsel for Mr Zaoui principally relied.

In Chahal v United Kingdom (1996) 23 EHRR 413 Mr Chahal was a Sikh separatist leader detained in custody as a threat to the national security of the United Kingdom. Although the refusal of his asylum application was quashed by the High Court, the Home Secretary maintained the refusal and began deportation proceedings. Mr Chahal claimed deportation to India would expose him to a real risk of torture or inhuman or degrading treatment, his detention pending deportation was too long and he had no effective domestic remedy. His appeal to the European Court of Human Rights was upheld, the Court holding (p456-457 paras [79] [80] [82]) that even in modern times where States take steps to protect themselves from terrorist violence, the “Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment irrespective of the victim’s conduct”. That also applied in expulsion cases where the State has a responsibility to safeguard that person against ill-treatment and accordingly no question of the threat to national security of the host State arises. It is also of note that the Court observed that the procedure by which Mr Chahal’s detention was reviewed could not be regarded as that of a “Court” as he was not entitled to legal representation and (p468 para [130]) he “was only given an outline for the grounds of notice of intention to deport” and that in Canada (para 131 p469):

… there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.

Chahal was discussed in Rehman, though, since Chahal, the law in England had changed and a Special Immigration Appeals Commission (“SIAC”) had been set up chaired by a person who holds or has held judicial office plus an immigration judge and a third member with experience of national security matters. The gist of the decision disallowing Mr Rehman’s appeal may, with respect, best be taken from the speech of Lord Slynn of Hadley (at 129-130 paras [15] and [16]) :

[15] It seems to me that Mr Rehman is entitled to say that ‘the interests of national security’ cannot be used to justify any reason the Secretary of State has for wishing to deport an individual from the United Kingdom. There must be some possibility of risk or danger to the security or well-being of the nation which the Secretary of State considers makes it desirable for the public good that the individual should be deported. But I do not accept that this risk has to be the result of ‘a direct threat’ to the United Kingdom as Mr Kadri has argued. Nor do I accept that the interests of national security are limited to action by an individual which can be said to be ‘targeted at’ the United Kingdom, its system of government or its people as the commission considered. …

[16] I accept as far as it goes a statement by professor Grahl-Madsen in The Status of Refugees in International Law (1966):

‘A person may be said to offend against national security if he engages in activities directed at the overthrow by external or internal force or other illegal means of the government of the country concerned or in activities which are directed against a foreign government which as a result threaten the former government with intervention of a serious nature.’

That was adopted by the commission but I for my part do not accept that these are the only examples of action which makes it in the interests of national security to deport a person. It seems to me that, in contemporary world conditions, action against a foreign state may be capable indirectly of affecting the security of the United Kingdom. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations, whatever the objectives of the terrorist, may well be capable of reflecting on the safety and well-being of the United Kingdom or its citizens. The sophistication of means available, the speed of movement of persons and goods, the speed of modern communication, are all factors which may have to be taken into account in deciding whether there is a real possibility that the national security of the United Kingdom may immediately or subsequently be put at risk by the actions of others. To require the matters in question to be capable of resulting ‘directly’ in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defence but democracy, the legal and constitutional systems of the state need to be protected. I accept that there must be a real possibility of an adverse affect on the United Kingdom for what is done by the individual under inquiry but I do not accept that it has to be direct or immediate.

Mr Zaoui’s counsel referred to a number of other authorities in international jurisdictions which they submitted bore on the question. They included R (Ullah) v Special Adjudicator [2003] 1 WLR 770 and Ajouaou and A, B, C, and D v Secretary of State for the Home Department (Appeals SC 1, 6, 7, 9 and 10, 2002, 29/10/2003 before the SIAC) in the United Kingdom, Al-Nashif v Bulgaria Application (50963/99, 20 September 2002) in the European Court of Human Rights, Re Charkaoui [2003] FCJ 1119 (15 July 2003) in the Federal Court in Canada, Director General Security v Nashmy Obed Sultan [1998] 1548 FCA (1 December 1998) in the Federal Court of Australia and Kiareldeen v Ashcroft 273F, 3d 542 (10 September 2001) in the US Court of Appeals for the Third Circuit. It is not intended to discuss those cases in detail. No disrespect is intended to counsel’s industry but the cases all deal with issues of national security, continued detention and deportation, none of which are directly in point at this stage of Mr Zaoui’s case though Kiareldeen is illustrative of the care required in drafting summaries pursuant to statutory requirements of classified security information to be given to those facing deportation. Such summaries had been given to Mr Kiareldeen and the information had been suitably limited but, that notwithstanding, the judgment (which was on costs) notes (at 548) that, even so, Mr Kiareldeen had been able to deduce that one of the FBI’s informants was his former wife.

Naturally, this was the area on which the Human Rights Commission made full submissions, urging recognition of the safeguards for refugees built into the international human rights instruments and international practice. Its leading counsel, Mr Hesketh, said the Commission’s concern was that fears about national security do not provide opportunities for States to broaden the grounds on which refugees can be excluded or narrow procedural protections. He submitted a robust human rights regime is internationally recognised as the most effective bulwark against terrorists (General Comment No.29 States of Emergency Art 4). He, too, pointed to the refugee protection provisions earlier discussed in ICCPR, CAT and the Refugee Convention and submitted that international human rights criteria adopted by New Zealand should be observed in Mr Zaoui’s case both in fairness to him and because of possible effect on New Zealand’s international reputation for the treatment of refugees.

Mr Hesketh pointed to this country’s enduring adherence to human rights from its being one of the original signatories to the 1948 Universal Declaration of Human Rights through its establishment of the Human Rights Commission in 1977 – an internationally early commitment to such a body – down to BoRA.

Mr Hesketh took the Court carefully through of the applicable articles of the Universal Declaration, ICCPR with particular reference to Article 4 and General Comment No29, CAT and the Refugee Convention. In relation to the last he submitted the Convention bar on refoulement other than in limited circumstances and the consequences of refoulement for refugees all made it important that the rules of natural justice be fully observed.

In relation to the Certificate, Mr Hesketh submitted that Part IVA and s19 of the Inspector-General’s Act indicated, on proper analysis, that the review process should involve much more than simply reconsidering the material underlying the Certificate’s issue. He submitted that, procedurally, natural justice required that a person against whom such a Certificate has been issued should have access to materials sufficient to enable them to answer the allegations.

Proper analysis of Part IVA and the s19 of the Inspector-General’s Act led too, he submitted, to the conclusion that the review should involve much more than simple reconsideration of the material underlying the Certificate itself particularly through s114A(c)(d). Consistent with the Commission’s overall view, he cautioned against too broad an interpretation of “classified security information” and “national security”.

He also pointed to Article 13 of ICCPR which permits expulsion from a state only for “compelling reasons of national security” and requires reasons to be given for the expulsion and independent review.

He submitted the Inspector-General should interpret what is meant by “classified security information” very narrowly so that as much information as possible is available to the person to whom it relates.

He pointed to processes adopted in other jurisdictions whereby credibility of classified security information and legitimate security concerns were balanced against substantial procedural justice (Chahal) and submitted that, here, the Inspector-General as part of regulating his own procedure might establish a panel to assist with specific expertise in the appropriate areas or appoint counsel.

Mr Hesketh also referred extensively to BoRA and pointed out that the UN Human Rights Committee speaking of Article 6 of ICCPR has said that if a State extradites a person where there is a real risk that his or her rights under the covenant will be violated in another jurisdiction, the State itself may be in violation of the covenant.

In relation to s27(1) of BoRA, Mr Hesketh helpfully drew attention to the recent decision in R (Q) v Secretary of State for the Home Department [2003] EWCA CIV 364. Dealing with asylum seekers, the English Court of Appeal said (para [71]) the “importance of ensuring that the system is fair to applicants, as well of course as to the public interest, seems to us to be of particular importance” and went on to note that States cannot undermine procedural fairness merely by asserting national security and terrorism are involved.

The Crown’s response to the submissions on the human rights dimension were that here, too, they all underplayed the “threat to national security”. National security involves a large element of policy, hence courts commonly defer to the Executive in such areas. Rehman, Ms Clark submitted, was an example. The House of Lords and Court of Appeal were critical of SIAC’s narrow approach to the issue of “national security” and the degree of deference shown to the Secretary of State’s discretion and accordingly remitted the case to the SIAC for reconsideration in accordance with their Lordships discussion of “national security” as set out in the passage from the speech of Lord Slynn earlier cited.

While the international human rights covenants were, of course, binding on New Zealand, it was submitted their provisions must yield to the terms of Part IVA. In addition, the authorities to which Mr Zaoui and the Commission had referred had to be seen against their different legislative backgrounds and in particular the different ways in which other countries have balanced protecting classified security information against safeguarding individual rights. A cautious approach should therefore be taken in relying on such authority. Other countries’ approach to their security may be more urgent than New Zealand so other countries responses should not be invoked wholesale here. If the balance were thought to be incorrectly struck in Part IVA, the remedy is through Parliament not the Courts.

There is force in Ms Clark’s submission. Countries comparable with New Zealand in other ways have reacted differently to the New Zealand reaction in enacting Part IVA. It follows that direct translation of overseas procedures to New Zealand would be inappropriate if for no other reason than that statutory rights and obligations differ.

Yet, in struggling to reconcile their obligations under the international human rights covenants with national security concerns in a world plagued by more prevalent terrorism, other countries – including countries which have actually been subjected to terrorist attacks – have nonetheless found ways and adopted procedures which do not exclude those thought to be threats to security from procedural safeguards designed to ensure that, in a limited way, they can meet and challenge what is alleged against them through procedures which comply in as full a measure as possible with natural justice. For the most part, overseas experience such as that reviewed in the authorities and the affidavits filed on Mr Zaoui’s behalf provides for:

Review by an independent functionary of unquestioned integrity;

The provision of summaries of classified information to the person concerned shorn of matter likely to identify source or proscribed from disclosure.

Procedural fairness in the sense of the right to call evidence and present a case in opposition.

These seem consistent themes in countries comparable with New Zealand. Two of the three already apply in this country. There seems no reason why the third should not apply. Certainly, Part IVA and s114I do not forbid it.

Relief: Declaration of Inconsistency

It will be apparent from what has been said that the appropriate conclusion is that Mr Zaoui is entitled to relief, much, but not precisely, in the form he seeks. However, before discussing that, it is appropriate to turn to the relief which he seeks by way of a declaration that Part IVA is wholly or partly inconsistent with BoRA.

Mr Butler, junior counsel for the Crown, presented extensive submissions arguing that no court has jurisdiction to make a declaration that an act of Parliament is inconsistent with BoRA; that the cases which appear to contemplate such a remedy, when properly analysed, do not propose a declaration of inconsistency but rather an indication of the Court’s view that a particular provision may run counter to BoRA; and that even if the Court had jurisdiction to make such a declaration, this was an inappropriate case.

It is not intended to deal with Mr Butler’s argument at length. The main reason for taking that view is that this Court is bound by decisions of the Court of Appeal which, while not actually making a declaration of inconsistency, nonetheless clearly conclude jurisdiction exists. The cases include Moonen (supra at 16-17, paras [17]-[20]) where the Court of Appeal set out a five-step test for determining inconsistency with BoRA including a final step in which clearly indicate courts may issue a declaration of inconsistency. The Court of Appeal declined to revisit the question in the second Moonen case (Moonen v Film and Literature Board of Review [2002] 2 NZLR 754) though stressing (at 760, para [14]) that “other approaches” are available. And in R v Poumako [2000] 2 NZLR 695 the majority gave serious consideration to making a declaration of inconsistency with BoRA (at 703 para [43] per Richardson J, Gault and Keith JJ, at 710 para [68] per Henry J) and Thomas J would have made a formal declaration (at 770 para [107]. (See also R v Pora [2001] 2 NZLR 37, 58 paras [85] [86]).

The second reason is the Court agrees that, even if relief by declaration of inconsistency is available, this is not the appropriate case in which to make it. The remedies discussed elsewhere are adequate for Mr Zaoui’s purposes. Contemplating a declaration of inconsistency, were it thought appropriate, would require consideration of each section or sub-section in Part IVA with careful consideration of each as to compliance with BoRA. This would be an extensive and difficult exercise unlikely to result in the entire Part being declared inconsistent. The general structure of Part IVA may not be inconsistent with BoRA even if some individual provisions may warrant that finding, either expressly or by implication, more from what they do not forbid. Declarations of inconsistency may be open (“Judicial Declarations of Inconsistency – A New Weapon in the Bill of Rights Armoury?” Butler [2000] NZ Recent Law Rev 43, 59-60) but would normally be regarded as remedies of last resort. In this case other findings sufficiently protect Mr Zaoui without need to invoke such a remedy.

Accordingly, the application for a declaration of inconsistency is declined.

Result

The relief sought by Mr Zaoui is a declaration that the Inspector-General’s “procedural” ruling is unlawful, in breach of ss8, 9 and 27(1) of BoRA, ultra vires and invalid in holding that BoRA, fairness and the principles of natural justice were inapplicable to a review of the Certificate; that because “classified security information” could not be disclosed it was not lawfully or practically open to order a written summary of the allegations to be provided to Mr Zaoui; and that it was not possible in law to provide Mr Zaoui with information sought as to the basis for the Director’s conclusion that he was a threat to national security. In relation to the “substantive” ruling, again the relief sought was that the ruling was unlawful, in breach of ss 8 and 9 of BoRA, ultra vires and invalid in concluding that BoRA was inapplicable to the review of the Certificate and the scope of the review was limited to the applicability of the “relevant refugee deportation security criteria” and that it was in error of law having regard to the potential adverse consequences for the plaintiff of being deported that the Inspector-General was not required to have regard to the human rights dimension.

Put more shortly, in essence what Mr Zaoui seeks is, first, a summary of the allegations underlying the Certificate without breaching a prohibition on the disclosure of “classified information” in s114B and, secondly, a declaration that the Inspector-General’s view that the international human rights instruments and jurisprudence are irrelevant to the Inspector’s function under s114I was legally incorrect.

Before trying to formulate the relief to be granted, it should be observed, for the reasons appearing throughout this judgment :

s114I and s19 of the Inspector-General’s Act support Mr Zaoui’s entitlement to the relief he seeks;

Part IVA, particularly s114A, also support Mr Zaoui’s entitlement to the relief he seeks;

BoRA, particularly s27(1), is relevant to the Inspector-General’s review and supports Mr Zaoui’s entitlement to the relief he seeks;

The Refugee Convention and international jurisprudence and writings relating to it all, as might be expected, strongly support Mr Zaoui’s entitlement to the relief he seeks;

ICCPR, CAT and the other international human rights instruments and commentaries on them reviewed in this judgment also, as might be expected, strongly support Mr Zaoui’s entitlement to the relief he seeks.

When all that material uniformly points to the same conclusion, there is every reason to grant Mr Zaoui the relief he seeks, providing it can be achieved within the statutory limitations discussed in the judgment, particularly the definition of “classified security information” which “cannot be divulged” to him.

Therefore, all of the matters discussed in this judgment lead to the conclusion that :

s114I in combination with s19 of the Inspector-General’s Act do not debar :

the provision to Mr Zaoui of a summary of the allegations against him which underlie the making of the Certificate provided that information does not breach the definition of “classified security information” which “cannot be divulged”. BoRA, natural justice, s114I and s19 of the Inspector-General’s Act and Part IVA mandate the provision of such a summary consistent with overseas practice.

The right of a person charged – or subject to a Certificate - to know at least the outline of the allegations against them and the basis on which they are made is one of the most fundamental tenets of natural justice and should be implemented in Mr Zaoui’s case as far as is possible consistent with the definition of “classified security information”.

Apart from the limitation that evidence called by Mr Zaoui – as opposed to evidence given by him – must relate to his “record, reliability and character”, there is no statutory limitation on the evidence and submissions which he is entitled to put before the Inspector-General for consideration as part of the determination whether the Certificate was “properly made or not”. That involves simultaneous consideration of material provided pursuant to the two statutory routes to that decision discussed in the judgment. Having regard to the history of this matter to date, it will undoubtedly involve reference to the international human rights instruments and international human rights jurisprudence.

It is for the Inspector-General to decide what relevance and weight he accords the international human rights instruments and international human rights jurisprudence but having regard to the discussion on s114I, Part IVA, the balance of the Act, BoRA in particular, the international human rights instruments and the international human rights jurisprudence, the comment by the Inspector-General (para [28]) that the “general issues of international jurisprudence are beside the point”, cannot be a correct statement of the position.

The actual form of the orders to be made is now a matter for consultation between counsel with a view to their agreeing on the wording. Leave is reserved to apply further in the event they cannot agree.

Mr Zaoui’s application for a declaration of inconsistency is declined.

The Crown’s defences based on s19(9) being a privative clause and the review being brought prematurely are both dismissed.

If costs are an issue between these parties, this would seem incontestably to be a proceeding for which costs on a 3C scale should be ordered but if the parties are unable to agree, memoranda may be filed with that for the plaintiff within 35 days of the date of delivery of this judgment and that from the Crown within 42 days with the parties certifying, if they consider it appropriate so to do, that the court can resolve all questions of costs without a further hearing.

WILLIAMS J

Signed at ……2:03pm this……19th……..day of………December………...2003

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