Summary of holding
First, the Tribunal found that the appellant was not a refugee under the 1951 Refugee Convention on the basis that he did “not have a well-founded fear of being persecuted for any Convention reason” if returned to Tuvalu (¶ 87). The Tribunal assessed whether there was a real chance of persecution if the appellant were to be returned to Tuvalu and found that if the appellant “cannot find employment in the private sector and is forced to resort to subsistence living, whatever hardship that entails (including hardship caused by climate change) will not be as a result of any action (including inaction) by the state and does not constitute a sustained or systemic violation of a core human right demonstrative of a failure of state protection” (¶ 71).
As for the appellant’s right to safe drinking water, the Tribunal indicated that the issue of clean drinking water was not determined by the actual access to drinking water, but by the access to the means of obtaining clean drinking water. Therefore, as the appellant would be able to obtain clean drinking water through government-sponsored means, even if the process is difficult and inconvenient, his claim of being unable to obtain clean drinking water is unsubstantiated. In other words, “the issues relating to water potability were surmountable by individuals willing to take care to keep water uncontaminated and properly prepared” (¶ 75).
The tribunal did not consider the appellant’s claim related to his daughters. “Refugee status… is a status held by the individual. The question of whether any of the other members of the appellant’s family are to be recognised as refugees or protected persons is not before the Tribunal” (¶ 79).
For the same reasons as the ones mentioned in relation to the appellant’s refugee claim, the Tribunal found that there was no basis under the 1984 Convention Against Torture or the 1966 International Covenant on Civil and Political Rights to extend protection to the appellant.
The appeal was therefore dismissed.
Potential takeaways for future climate migration litigation
This decision articulates the conditions needed for a violation of an individual’s right to safe drinking water and for that to be considered persecution in the context of a refugee claim. The Tribunal held that the right to safe drinking water “does not require that safe drinking water comes necessarily from the tap. What is required is that a person is able to access, after whatever process is necessary, water they are able to drink” (¶ 74).
In this appeal, the Tribunal found that, while water security issues in Tuvalu, it had “not been established that Tuvalu, as a state, has failed or is failing to take steps to protect the lives of its citizens from known environmental hazards such that any of the appellants would be in danger of being arbitrarily deprived of their lives” (¶ 108).