Earth Refuge Legal

September 22, 2017July 19, 2022

Weight of decision

This decision holds great weight in Pakistan, as the judgment from the High Court binds the national government to further ensure implementation of national climate change policy and to enforce the fundamental rights of its citizens in the context of climate change..

Key facts

Pakistan is particularly vulnerable to the impacts of climate change, as seen recently from massive damage, death, and displacement caused by flooding. According to articles 9 (right to life) and 14 (right to a healthy and clean environment and to human dignity) of the Pakistani Constitution, citizens can turn to the courts to recognize state obligations to ensure these fundamental rights.

Under the National Climate Change Policy of 2012 (“Policy”) and the 2014-2030 Framework for Implementation of Climate Change Policy (“Framework”), the courts also have the authority to install and remove members of the Climate Change Commission (“CCC”), including relevant experts from the Ministry of Water Resources, Ministry of Climate Change, and Ministry of Inter Provincial Coordination, and to require reports from the CCC on whether citizens’ rights are properly safeguarded in the context of environmental and climate change.

Petitioner Leghari filed this case against the Federal Government of Pakistan and the Regional Government of Punjab, alleging that the impacts of climate change, and a lack of action from the government, violated his rights as a citizen. In particular, Leghari alleged that failure to implement the national Policy and Framework on climate change threatened his livelihood as an agriculturist, given his economic dependency on access to clean water, energy, and food.

Previous instances

Previous cases in Pakistan (Tiwana v. Punjab [PLD 2015 Lahore 522] and Zia v. WAPDA [PLD 1994 SC 693]) established that national and provincial environmental laws should be enforced consistent with international principles of environmental law, including respect for fundamental rights and proper execution of environmental impact assessments.

Summary of holding

The Court first recognized that climate change in Pakistan has led to heavy flooding and droughts, threatening citizens’ fundamental rights to water and food security, especially the most vulnerable in the country. It then held that the government had not taken sufficient action to implement its climate change Policy or Framework, despite notable progress by the CCC. Nonetheless, the Court dissolved the CCC, and future authority to coordinate implementation of the national Policy and Framework was vested in a Standing Committee on Climate Change, to “act as a link between the Court and the Executive . . . to ensure that the Policy and the Framework continue to be implemented.”

The Court agreed with Leghari that their authority to intervene was connected with the rights to life and human dignity “under articles 9 and 14 of the Constitution,” especially with respect to his right as a citizen to access clean water: “Climate Justice and Water Justice go hand in hand.” Moreover, the Court’s decision referenced “international environmental principles of sustainable development, [the] precautionary principle, environmental impact assessment[s], inter[-] and intra-generational equity[,] and [the] public trust doctrine” among the mechanisms used to justify its ruling.

Potential takeaways for future climate migration litigation

Leghari is a relatively successful example of a citizen directly asserting their rights in court against a national government in the context of climate change. The High Court’s willingness to hear such a rights-based claim and respond with a substantive policy change order should be of interest to future litigators bringing national cases related to climate mitigation or adaptation.

While the policy changes mandated by the Court may or may not bring Pakistan into compliance with its own climate change Policy or Framework, advocates should note that, in a country already frequently devastated by the impacts of climate change, the High Court asserted a muscular role for itself in coordinating executive and legislative actions, including via the creation of a new Standing Committee to enforce fundamental rights in the context of climate change. In doing so, the Court seemed especially moved by rural citizens’ dependence on clean and consistent water sources, a perennial environmental issue in Pakistan. In mobility-related cases, then, it may be wise to assert claims with reference to environmental hazards already well-recognized in a given jurisdiction.

AV (Nepal) [2017] NZIPT 801125, 26

Date: 22 September 2017

Court: New Zealand Immigration and Protection Tribunal

Citation(s): [2017] NZIPT 801125, 26

Short summary

Appellants, suffering from PTSD, claimed that they could not return to Nepal due to fear induced by the deadly 2015 earthquake. The Tribunal denied them leave to remain as they had not suffered from persecution resulting from actions of the State and did not meet the definition of a refugee under the 1951 Refugee Convention.

Summary by: Lucas Robinson

December 13, 2016February 14, 2022

Weight of decision

The New Zealand Immigration and Protection Tribunal (NZPT) is an independent judicial body that was established under § 127 of the Immigration Act 2009. The Tribunal has jurisdiction to hear appeals against immigration and refugee decisions made by State bodies. As appealing to the High Court can only be made on a point of law, the NZPT decisions carry substantial weight in domestic law.

Key facts

Appellants, a married Nepalese couple, appealed the decision made by a refugee and protection officer that they were not to be granted refugee status in New Zealand. They argued that following the April 2015 earthquake in Nepal, they had been diagnosed with post-traumatic stress disorder (PTSD) and feared the prospect of returning to Kathmandu. The earthquake rendered their home unhabitable and for a period of time they slept in tents. However, although they partly repaired their home, evidence was offered that they often slept on the veranda due to the fear of aftershocks. Appellants argued that they both felt much safer residing in New Zealand where their son and his family had been granted residence status and had purchased a home. Additionally, the Appellants’ General Practitioner gave evidence indicating that the wife did in fact suffer from PTSD and that both of the Appellants suffered from physical injury on account of the earthquake, which had left them in chronic pain for some time.

Summary of holding

The Tribunal determined that the relevant tests were set out in the Immigration Act 2009 under § 194(1)(c). Namely, it must be found that appellants are refugees under the 1951 Refugee Convention, protected persons under the 1984 Convention Against Torture, or protected persons under the 1966 International Covenant on Civil and Political Rights (ICCPR) to receive asylum.

In regard to the 1951 Refugee Convention, it was necessary for the Appellants to show, as per Article 1A(2), that “owing to a well-founded fear of being persecuted,” they were unable to return to Nepal on account of their “race, religion, nationality, or membership of a particular social or political group”. The Tribunal followed the view in DS (Iran) [2016] NZIPT 800788, that “being persecuted” required serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection. Additionally, a fear of being persecuted is established as well-founded when there isa real, as opposed to a remote or speculative, chance of it occurring (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). The Appellants acknowledged that they did not fear the Nepalese state itself, but rather the fear of future earthquakes and the prospect of returning to Kathmandu without the support of their children. In light of this, the Tribunal cited AF (Kribati) [2013] NZIPT 800413, a case that set out whilst natural disasters could involve human rights issues, the definition set out in the 1951 Refugee Convention still had to be satisfied.

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Paposhvili v. Belgium, [2016] ECHR 1113 (13 December 2016)

Date of judgement: 13 December 2016

Court: European Court of Human Rights

Citation(s): Paposhvili v. Belgium – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)) [2016] ECHR 1113 (13 December 2016)

Short summary

The Grand Chamber of the European Court of Human Rights (ECtHR) memorably reshaped its Art. 3 case law on the expulsion of seriously ill migrants in leaving behind the restrictive application of the high Art. 3 threshold set in N v. the United Kingdom Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008, and pushed for a more rigorous assessment of the risk of ill-treatment.

Summary by: Claudia Broadhead

October 21, 2016May 9, 2022

Categorisations

Private v State, International Law, Refugee Law, Civil Rights Law, Migration and Health, Right to Family, Issues in Litigation, Evidence Admissibility

Weight of decision

The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 2 and 3 of the European Convention on Human Rights (ECHR).

Key facts

The applicant, a Georgian national facing removal from Belgium due to criminal activity, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. The applicant claimed that, if removed to Georgia, he would be unable to access adequate medical treatment and was therefore at risk of ill-treatment in violation of his rights under Art. 3 ECHR (prohibition of torture or inhuman or degrading treatment or punishment), and accelerated death in breach of his right to life under Art. 2 ECHR. The applicant also argued that his removal to Georgia in conjunction with a ten-year ban on re-entering Belgium would result in separation with his family, who had leave to remain in Belgium.

Previous instances

The Fifth Section Chamber judgment of April 2014 held that the applicant’s removal would not encroach upon his Art. 3 or Art. 8 (right to private and family life) rights under the ECHR. The case was later referred to the Grand Chamber, and the applicant died pending these proceedings. The applicant’s family continued proceedings before the Grand Chamber of the ECtHR.

The ECtHR found that there would have been a violation of Art. 3 and 8 ECHR if the Applicant had been removed to Georgia without the Belgian authorities having assessed the risk that he faced from removal in light of the information concerning the state of his health and the existence (or lack thereof) of appropriate treatment in Georgia.

Summary of holding

The ECtHR held that the severity of ill-treatment under Art. 3 must attain a minimum level and that the suffering flowing from a natural occurring illness may be (or risks being) exacerbated by treatment, whether flowing from conditions of detention, expulsion, or other measures for which the authorities could be held responsible.

The ECtHR highlighted that since its decision in N v. the United Kingdom, an extremely high threshold (exceptional circumstances) had been set when applying Art. 3 to seriously ill persons. Indeed, only those close to death appear to be covered by the provision. In this case, the ECtHR determined that Art. 3 is triggered where “the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (para. 183). The ECtHR recognised here that the application of Art. 3 only to persons close to death had deprived those whose condition was less critical, but who were still seriously ill, from “the benefit of that provision” (para. 181).

In ensuring that Art. 3 is respected, the ECtHR went on to highlight that appropriate procedures need to be put in place to allow the individual to adduce evidence of the potential risk upon return to the country of origin, and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. Thus, the applicant is not obliged to present clear proof that they would be exposed to proscribed treatment.

The authorities should assess whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. So, states must assess the impact of removal upon the individual by comparing their health prior to removal and how it would evolve after transfer.

Factors to be considered in this assessment include whether the care is generally available in the receiving State, whether it is sufficient and appropriate in practice for the applicant’s treatment, and whether the individual will actually have access to this care and these facilities in the receiving State. This includes considerations relating to costs, existence of social networks and distances to access the relevant treatment.

Potential takeaways for future climate migration litigation

Threshold for breach of Art.3 ECHR. The ECtHR established in N v. United Kingdom that removing a non-national suffering from a serious illness to “a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case” (para. 42). The case set a very high threshold to finding breaches of Art. 3 where the issue was attributable to the State’s lack of resources to deal with a naturally occurring phenomenon.
- By contrast, in the case at hand, the ECtHR left behind the restrictive application and pushed for a more rigorous assessment of the risk of ill-treatment.

Practice access to treatment. The judgement does not simply discuss whether adequate treatment is generally available in the receiving State but, crucially, whether the treatment would be accessible to the person concerned, addressing practical as opposed to theoretical access to sufficient care.

Beauboeuf v. Canada

Date: 21 October 2016

Court: Immigration and Refugee Board of Canada (Immigration Appeal Division)

Citation(s): 2016 CarswellNat 8691 

Short summary 

A 71-year-old Haitian applicant successfully appealed a refusal letter denying her permanent residency in Canada. While she was originally denied a visa because of the potential for her health conditions to cause excessive demand on health or social services in Canada, she demonstrated compelling humanitarian and compassionate grounds that warranted special relief. A major element of her humanitarian and compassionate claim was the devastation ensuing from the 2010 earthquake in Haiti.

Summary by: Erin Levitsky

October 20, 2015November 23, 2022

Weight of decision 

This decision is not binding on Canadian courts because it comes from a tribunal. It is persuasive, however, and the fact that it is an appeal decision gives it greater weight.

Key facts

The appellant, Yamiley Beauboeuf, and her husband were both born in Haiti and are both citizens of Canada. They have two sons who are also Canadian. The family lives in Ottawa.

Following the devastating earthquake in Haiti in 2010, Beauboeuf’s mother, Rose Marie Yolaine Napoléon came to visit her family in Canada and never left. Beauboeuf and her husband co-sponsored Napoléon for permanent residence (PR) as a member of the family.

Previous instances

In October 2012, Napoléon received a procedural fairness letter containing the opinion of a medical officer who determined that her medical condition—diabetic illness complicated by chronic kidney disease—might cause excessive demand on health or social services in Canada. Napoléon provided additional submissions and documents but Citizenship and Immigration Canada (CIC) ultimately issued a refusal letter in April 13 refusing her PR citing the same concern, pursuant to § 38(1) of the Immigration and Refugee Protection Act (IRPA). Beauboeuf appealed the decision.

Summary of holding

Rather than contest the legal validity of the refusal letter, the appellant argued there were “sufficient humanitarian and compassionate considerations, taking into account the best interests of the children directly affected by the decision and the other relevant circumstances of her case” (¶ 3) to justify special relief pursuant to ¶ 67(1)(c) of the IRPA. The Minister argued the threshold for relief based on humanitarian and compassionate grounds was not met.

The Immigration Appeal Division (IAD) allowed the appeal, holding that while the refusal letter was legally valid, the humanitarian and compassionate considerations put forward were sufficient to warrant special relief.

The IAD considered several factors to determine whether humanitarian and compassionate considerations were sufficient, including:

“(i) the relationship of the sponsor to the applicant and the strength of that relationship; (ii) the reasons for the sponsorship; (iii) the overall situation of both the sponsor and the applicant; (iv) the family support in Canada; (v) the existence of dependency as between the applicant and the sponsor; (vi) the best interests of any children directly affected by the decision; and (vii) the objectives of the IRPA” (¶ 5).

The IAD considered the fact that the main reason Beauboeuf sponsored her mother was to keep her alive. It held that being deported would be akin to a death sentence, as dialysis, the medical treatment she required, was not available in Haiti.

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AF (Tuvalu) [2015] NZIPT 800859

Date: 20 October 2015

Court: New Zealand Immigration and Protection Tribunal

Citation: [2015] NZIPT 800859

Short summary

This case was heard before the New Zealand Immigration and Protection Tribunal. It is an appeal against the decision taken by a refugee and protection officer to deny refugee status or protected person status to the appellant, a 25-year-old man of Tuvaluan nationality who had been served with a deportation order. The appellant based his appeal on the claim that he had a real chance of being persecuted if returned to his country of nationality in relation to an infringement of his right to work and of his right to safe drinking water. The appellant also claimed that his deportation to Tuvalu would be a violation of his daughters’ rights under the 1989 Convention on the Rights of the Child. The Tribunal dismissed the appeal on the ground that the appellant could reasonably access clean drinking water and reasonably attempt to gain employment in Tuvalu.

Summary by: Lucas Robinson

June 4, 2015February 14, 2022

Weight of decision

The New Zealand Immigration and Protection Tribunal is an independent judicial body and has jurisdiction to hear appeals against deportations, refugee claims, and other immigration decisions. A decision from the New Zealand Immigration and Protection Tribunal can be reviewed by the High Court only if an appeal is made on a point of law. In that sense, the New Zealand Immigration and Protection Tribunal’s decisions carry substantial weight in New Zealand domestic law.

Key facts

The appellant was a citizen of Tuvalu, who was 25 years old at the time of the hearing. In 2003, he moved to New Zealand with his mother. This event forced him to drop out of school in Tuvalu. He has been living in New Zealand since then and never went back to school. In 2008, he married a New Zealand citizen and they had two daughters together. Between 2008 and 2014, the appellant was convicted of multiple offences/crimes in New Zealand. As a result, in July 2014, the appellant was served with a deportation order. In December 2014, the appellant submitted a claim to be recognised as a refugee or as a protected person. A refugee and protection officer denied his claim. This case is the appeal against the aforementioned refusal.

The appellant appealed the decision on three grounds. First, the appellant fears returning to Tuvalu because of the lack of employment opportunities. Indeed, he fears that the government of Tuvalu will discriminate against him due to his criminal convictions and lack of formal education, therefore violating his right to work. Second, the appellant claims that, if returned to his country of nationality, he would not be able to exercise his right to access safe drinking water due to the effects of climate change. Third, the appellant claims that his deportation to Tuvalu would violate his daughters’ rights under the 1989 Convention on the Rights of the Child.

Previous instances

In July 2014, the appellant was served with a deportation order as a result of his convictions for crimes he committed between 2008 and 2014. His attempt to get this deportation order revoked was unsuccessful. Facing deportation, the appellant submitted an application to be recognised as a refugee or protected person. A refugee and protection officer declined to grant the appellant’s application.

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AD (Tuvalu) [2014] NZIPT 501370-371

Date of judgement: 4 June 2014

Court: Immigration and Protection Tribunal of New Zealand

Citation(s): [2014] NZIPT 501370-371

Short summary

The appellants, spouses from Tuvalu who resided in New Zealand unlawfully were granted residence visas following a humanitarian appeal against their deportation. It was deemed unduly harsh to deport the appellants when considering the best interests of their children and their ties to the country. Climate change was not a determinative issue for the Tribunal, but it was acknowledged that effects of climate change constitute a broad humanitarian concern.

Summary by: Erin Gallagher

June 4, 2014January 1, 2024

Weight of decision

Decisions of the Immigration and Protection Tribunal of New Zealand bear significant weight in the country, especially due to the nature of the appeal (humanitarian grounds).

Key facts

The appellants were a husband and wife from Tuvalu who made humanitarian appeals against their deportation from New Zealand under the Immigration Act 2009.

They had left Tuvalu because the effects of climate change and overpopulation were making life increasingly difficult. Their home islands were particularly vulnerable to inundation due to rising sea-levels causing coastal erosion that made it arduous to grow crops.

The wife lost her job when the school she taught at closed due to lack of funding. The appellants lost two babies at late stages of pregnancy, which they attributed to lack of comprehensive medical services in Tuvalu.

The couple arrived in New Zealand in 2007 holding visitor visas. The husband was twice rejected for a work permit, and further rejected for a residence visa, and was thus unlawfully resident. The couple went on to have two children who were both born in New Zealand.

Previous instances

The appellants lodged claims for asylum, but the Tribunal dismissed this in the first instance (AC (Tuvalu) [2014] NZIPT 800517-520) after finding that the appellants did not fulfil the definition of a refugee under the 1951 Refugee Convention: any adverse conditions they faced in Tuvalu did not arise by reason of their race, religion, nationality, membership of a particular social group, or political opinion.

Summary of holding

In their appeal, the appellants claimed that if they were deported to Tuvalu, they would be separated from the husband’s side of the family who were all living in New Zealand. They further claimed that they would be at risk of suffering the adverse impacts of climate change.

The Tribunal had to decide whether the combination of separation from family and risk of exposure to the adverse effects of climate change amounted to exceptional circumstances of a humanitarian nature that would then allow the family to remain in New Zealand.

The grounds for granting a humanitarian appeal against liability for deportation are:

There are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported; and
It would not in all the circumstances be contrary to the public interest to allow the appellant(s) to remain.

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AC (Tuvalu)

Date: 04 June 2014

Court: New Zealand: Immigration Protection Tribunal

Citation: AC (Tuvalu) [2014] NZIPT 800517-520

Short summary

A family appealed their immigration cases to New Zealand’s Immigration and Protection Tribunal, claiming their rights to life and protection would be violated if returned to Tuvalu because of climate change impacts. The Tribunal dismissed their claims, finding that they could not meet their evidentiary burden in qualifying as protected persons, nor in demonstrating that the government of Tuvalu failed to meet its duty to address the known effects of climate change on its populace.

Summary by: Keri Pflieger

October 17, 2013October 31, 2023

Weight of decision

The Immigration and Protection Tribunal is an expert forum administered by the New Zealand Ministry of Justice. It primarily assesses immigration and protection claims under New Zealand’s Immigration Act 2009, which codifies the Refugee Convention (§ 129), Convention Against Torture (§ 130), and the ICCPR (§ 131). The Immigration and Protection Tribunal’s decisions hold significant weight in New Zealand. Decisions may only be appealed to the domestic High Court on issues of law.

Key facts

The Appellants were a Tuvaluan family (husband, wife, and two children) living in New Zealand who appealed the denial of their immigration cases and sought protected person status under New Zealand’s Immigration Act 2009.

The husband and wife each noticed the effects of climate change in Tuvalu, including increased land inundation, sea level rise, difficulties growing food, coastal erosion, and droughts. Prior to their departure from Tuvalu, they lost two late-term pregnancies, one of which they attributed to the quality of medical care in Tuvalu.

The husband and wife left Tuvalu for New Zealand in 2007, after the husband’s family home was demolished and the wife’s workplace shut down from insufficient funding.

The husband expressed fear for his family’s safety if returned to Tuvalu, due to minimal employment opportunities and lack of access to clean drinking water free from contamination. In addition to sharing her husband’s concerns, the wife also feared the quality of medical care facilities and availability of medicine access for her children, sea level rise’s negative effects on vegetation growth, and not having pathways to land ownership.

Previous instances

In November 2012, Appellants applied for refugee and/or protected person status. However, their claims were dismissed on 17 March 2013 by the Refugee Status Branch. Appellants appealed this dismissal under § 194(1)(c) of the Immigration Act 2009 with the Immigration and Protection Tribunal on 03 April 2014. This case, AC (Tuvalu), is the Tribunal’s assessment of that appeal.

AC (Tuvalu) is a joint appeal issued contemporaneously with AD (Tuvalu) [2014] NZIPT 501370-371. Under that appeal, appellants challenged deportation on humanitarian grounds under § 194(5) & (6), and § 196(6) & (7) of the Immigration Act 2009 to prevent separation of the husband’s family living in New Zealand. Appellants succeeded under that appeal.

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Washington Environmental Council v. Bellon

Date: 17 October 2013

Court: United States Ninth Circuit Court of Appeals

Citation(s): Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1141-46 (9^th Cir. 2013)

Short summary

Washington state residents and non-profits sued the Washington State Department of Ecology over its failure to regulate greenhouse gas emissions in accordance with the Clean Air Act. The Court of Appeals vacated the District Court below and held that Plaintiffs failed to show standing under Article III of the U.S. Constitution by failing to establish causation for and the redressability of their injuries.

Summary by: David Cremins

June 25, 2013October 17, 2022

Weight of decision

The ruling by the Circuit Court of Appeals holds precedential authority in the Ninth District (Washington, Oregon, California, Nevada, Idaho, Montana, Hawaii, and Alaska) and persuasive authority in other U.S. Circuits.

Key facts

Washington State has five oil refineries subject to regulation under § 202(a) of the Clean Air Act (CAA) and is required by the Environmental Protection Agency (EPA) to develop a State Implementation Plan (SIP) to define greenhouse gas (GHG) emission limits (known as National Ambient Air Quality Standards [NAAQS]) for these refineries, which accounted for about 6% of Washington’s state emissions in 2008.

Under Article III of the United States Constitution, federal courts have the power to hear “cases and controversies” between parties with an adversarial interest in a judicial ruling. Standing doctrine has been most notably developed in the context of environmental suits by the cases described below.

Previous instances

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), established that environmental plaintiffs must establish 1) a concrete, particular injury they have suffered or will imminently suffer that 2) is causally related to the (in)action of the actor they are suing and 3) that a court order could sufficiently redress their harm.

Massachusetts v. EPA held that GHGs are air pollutants subject to regulation under the CAA, a major win for environmental litigation. However, it also put in place a heightened standard for standing for non-state actors seeking to enforce EPA regulations, e.g., by promulgation of specific NAAQS in states’ SIPs.

Summary of holding

Plaintiffs’ claim (that Washington’s SIP failed to establish NAAQS that limited GHG emissions at key refineries) is not addressable by courts because they lack Article III standing. Non-profit environmental groups and individuals plausibly sustain economic, recreational, and health injuries due to CO2 pollution and attendant climate change. However, the chain of causation between these refineries’ GHG emissions and global climate change is too weak and attenuated to satisfy the second prong of the standing test. Further, any order to regulate these refineries would have a negligible effect on redressing plaintiffs’ localized injuries incurred because of global temperature rise. This is distinguishable from Massachusetts, wherein Massachusetts was afforded relaxed standing requirements due to its status as a quasi-sovereign, thereby satisfying Lujan. This “special solicitude” does not extend to these non-state litigants, and even if it did their claims would still be tenuous.

Potential takeaways for future climate migration litigation

This case demonstrates the difficulty of achieving standing before United States federal courts in cases concerning specific harms from global climate change. It is one of many cases that could demonstrate this proposition, but it is notable because it involves a liberal-leaning court refusing to enjoin a liberal state from enacting federally mandated regulation of its fossil fuel emissions.

Such standing issues may not be as prevalent in migration cases where an injury is already established, and a government agency’s action can provide a clear remedy, such as resettlement.

AF (Kiribati) [2013] NZIPT 800413

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

Link to original judgement

December 11, 2012June 22, 2022

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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Chagos Islanders v. the United Kingdom

Date: 11 December 2012

Court: European Court of Human Rights

Citation(s): Chagos Islanders v. the United Kingdom, ECHR, Application no. 35622/04 (11 December 2012)

Short summary

Former inhabitants of the Chagos Islands and their descendants brought an action to contest the U.K.’s bar on resettling the islands. The European Court of Human Rights affirmed previous judgments from U.K. courts barring the plaintiffs’ petitions for resettlement, in part due to the risks of climate change to the Islands.

Summary by: Luke Hancox