Date: 25 June 2013
Court: New Zealand Immigration and Protection Tribunal
Citation(s): AF (Kiribati) [2013] NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013
Short summary
Sea level rise and storms in Kiribati did not create a claim to protection under the Refugee Convention, the Convention Against Torture, or the International Covenant on Civil and Political Rights. These environmental disasters may create circumstances in which persecution can occur, and that persecution might give rise to a protection claim.
Summary by: Joseph Lavelle Wilson
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Weight of decision
This is the decision of an administrative tribunal and holds moderate weight within the jurisdiction.
Key facts
AF, a citizen of Kiribati, requested protection and/or refugee status from the government of New Zealand after changes to his home country’s environment caused by sea level rise associated with climate change.
Kiribati is a small nation in the Central Pacific Ocean made up of 33 atolls. The tribunal reviewed evidence regarding the situation in Kiribati. A 2007 National Adaptation Programme of Action filed by Kiribati under the United Nations Framework Convention on Climate Change provided a bleak picture of the impact of sea level rise on the islands of Kiribati. According to the programme the maximum height of the atolls is three-four meters above sea level, flooding and erosion are rife, and the primary source of potable water for most people in Kiribati – lenses of freshwater floating on seawater at the centre of some atolls – is at increasing risk of saltwater intrusion from storm surges.
AF’s testimony about his life in Kiribati was also reviewed by the tribunal. He was born in the 1970s on a small islet north of Tarawa, the main island and capital of Kiribati. He moved to Tarawa after finishing his schooling. In the early 2000s, more people from other atolls began moving to Tarawa, resulting in overcrowding and conflict. Flooding and erosion worsened over time, causing significant hardship to AF and his family. Eventually AF moved to New Zealand where he made his claims for protection.
Summary of holding
Although climate-based claims to protection may be possible, in this case the tribunal found that there was no evidence to support AF’s claim that he had a well-founded fear of persecution on the basis of a protected ground, and so his claims to protection were dismissed.
Important judgement points:
- AF’s evidence about the situation in Kiribati was accepted: The tribunal found that the South Tarawa area of Kiribati was struggling to carry its population due to the compromising effects of population growth and urbanization which were exacerbated by sudden onset environmental events (storms) and slow-onset environmental processes (sea level rise).
- Internally displaced people cannot meet the requirements of the Refugee Convention: AF submitted that he was an internally displaced person, and that this grounded a right to claim refugee status in New Zealand. The tribunal found that the Guiding Principles on Internal Displacement referred to by AF in his argument were a soft-law instrument not relevant to AF’s situation, as he was by definition no longer internally displaced.
- Persecution within the legal definition of ‘refugee’ requires human agency: The tribunal rejected AF’s formulation of ‘refugee’ as one that was broader than the legal concept of ‘refugee’, which it confirmed requires some aspect of human agency in terms of persecution on one of the five protected grounds. At the same time, the tribunal stated that this doesn’t mean environmental degradation could never create pathways into the Refugee Convention jurisdiction.
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