Summary of holding
New Zealand’s Immigration and Protection Tribunal dismissed Appellants’ appeal under [2014] NZIPT 800517-520, as it held that Appellants did not meet the protected person standard under the Refugee Convention, the Convention Against Torture, or the International Covenant on Civil and Political Rights (ICCPR). [¶ 120-121].
The Tribunal promptly dismissed Appellants’ claims under the Refugee Convention, with the acknowledgement that AF (Kiribati)’s holding applied that adverse effects of climate change and/or environmental disasters do not, on their own, rise to the level of harm that would qualify as ‘persecution’ to meet the refugee definition. [¶ 47]. The Tribunal then dismissed their claims under the Convention Against Torture, upon admission that Appellants were not claiming to be “at risk of being tortured as that phrase is defined under the Act.” [¶ 49].
The Tribunal then primarily assessed Appellants’ claims for protected person status under the ICCPR. To prove their claims, Appellants needed to either show that they belonged to a subgroup of the population intentionally targeted or neglected by the Government of Tuvalu (cruel treatment) or that the Government of Tuvalu failed to act against known hazards that would result in the arbitrary deprivation of their lives. The Tribunal did not find that the Appellants historically faced socioeconomic discrimination nor that they would be likely to in the future, thus rejecting the cruel treatment claim. [¶ 100-101]. In assessing the arbitrary deprivation of life claim, Tte Tribunal undertook a context-specific analysis of the environmental and socioeconomic conditions of Tuvalu underlying the Appellants’ claims and the actions of the Government of Tuvalu in mitigating these conditions. The Tribunal recognized that “evidence of historical failure to discharge positive duties against known environmental hazards” could be accounted for in this analysis, alongside improvements and changes in government responses and actions since taken. [¶ 69]. Here, the Tribunal reviewed the Government of Tuvalu’s conduct and found that it was taking adequate measures, both internally and with external support, to address the environmental and socioeconomic conditions at issue in this case. [¶ 102-108]. As a result, the Immigration and Protection Tribunal found that Appellants did not qualify as protected persons at risk of either cruel treatment or arbitrary deprivation of life under the ICCPR.
Potential takeaways for future climate migration litigation
- Despite not ruling for Appellants, the Tribunal in AC (Tuvalu) recognizes the capability of qualifying as a ‘protected person’ under the ICCPR in anticipation of likely cruel treatment or arbitrary denial of life caused from environmental hazards and/or the effects of climate change if returned to one’s home state.
- AC (Tuvalu) supports and further clarifies the standard set out in AF (Kiribati) that states have positive obligations and duties to protect their populace from known environmental hazards and provide humanitarian relief without discrimination. In doing so, it sets a moderately high standard for claimants to meet in demonstrating state violations of these duties and obligations. From which, its assessment focuses more on whether states have taken action to mitigate certain harm rather than the occurrence of the harm itself.
- In considering AC (Tuvalu) alongside AF (Kiribati) and AF (Tuvalu), it appears that New Zealand’s Immigration and Protection Tribunal has given climate migration claims more credibility when brought under § 131 of the Immigration Act 2009 than under § 129 or § 130. It does not seem that the Tribunal will entertain persecution or torture claims arising from climate migration claims, unless claimants belong to vulnerable community actively neglected or targeted by their state government via the effects of environmental disasters.
- Going forward, claimants in New Zealand could potentially succeed on their climate migration claims under § 131 of the Immigration Act 2009 if they are able to demonstrate: a) the historical and prolonged inaction of their state government in addressing the impacts of climate change on its citizens and b) the historical and likely future harm caused by this inaction on claimants.
- However, as seen with AD (Tuvalu), the Tribunal may be more willing to grant humanitarian appeals concerning the effects of climate change and environmental degradation under § 207 of the Immigration Act 2009 in cases where government inaction or neglect is difficult to establish.