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Tag: NewZealand

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Ioane Teitiota decision, CCPR/C/127/D/2728/2016

Date of judgement: 23 September 2020

Court: United Nations Human Rights Committee

Citation(s): CCPR/C/127/D/2728/2016; Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016

Short summary 

In its first ruling on a complaint by an individual seeking asylum from the effects of climate change, the United Nations Human Rights Committee found that states may not deport individuals who face climate change-induced conditions that violate the right to life.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision 

This decision is significant in that it is one of the first to acknowledge climate change-induced conditions as drivers of asylum claims. The Committee is responsible for holding states to account for upholding the International Covenant on Civil and Political Rights, however, its decisions are not binding. 

Key facts

The applicant sought asylum (and in the alternative, to be regarded as a protected person) on environmental grounds and argued that this was within the scope of the 1951 Refugee Convention. 

Further, the applicant contended that deportation back to Kiribati would violate Art. 6 (the right to life) of the International Covenant on Civil and Political Rights. The applicant sought determination by the Committee on the basis that he had exhausted all available domestic remedies (para. 8.3), a fact not disputed by the State party. 

New Zealand’s primary arguments surrounded the lack of evidence put forth by the applicant to support the argument that there was an imminent risk to his right to life, and that the claim should be deemed inadmissible. 

The Committee was asked to determine whether New Zealand had breached its obligations under the ICCPR by deporting the applicant back to Kiribati on the basis that the evidence did not support a finding that the applicant would face the risk, or would likely face the risk of arbitrary deprivation of life upon his return to Kiribati. 

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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

Link to original judgement

Click here to open the case in PDF format

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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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

Click here to open the case in PDF format

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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Refugee Appeal No. 76374

Date: 28 October 2009

Court: New Zealand Refugee Status Appeals Authority

Citation: Refugee Appeal No. 76374

Short summary  

A refugee applicant from Burma claimed to have a well-founded fear of persecution by her home government because of her involvement with groups adverse to the government’s interests and aiding cyclone victims. She was granted asylum in part due to her disaster relief assistance activity. 

Summary by: Lucas Robinson

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision holds moderate weight in New Zealand with respect to cases in which an individual is persecuted for their political opinion as expressed via assistance following a climate disaster.  

Key facts 

The applicant was a woman from Rangoon/Yangon, Burma/Myanmar with children. She was a self-employed businesswoman until she went to New Zealand. While in her home country, the applicant became part of the pro-democracy movement. She helped Buddhist monks communicate about the situation in Burma during the late 90s into the 2000s. She would arrange the meetings and help the monks get to the location of the meetings. The applicant was also tasked with exchanging money on the black market multiple times.  

When Burma was hit by Tropical Cyclone Nargis in 2008, the applicant had to get more money from the black market to buy food rations and other disaster relief materials. The applicant assisted in distributing the disaster relief materials. 

The applicant moved to New Zealand in late 2008 and began speaking with family through videochat. While in New Zealand, associates of the applicant were arrested and given harsh sentences for their political activities. Also, while taking to her sister on video-chat, the applicant learned the government was arresting people who helped with disaster relief and that the government was inquiring about her.  

Previous instances

 The applicant was denied refugee status at her initial hearing because of a lack of well-founded fear of persecution. 

Summary of holding

The main issues presented were: Does the appellant-applicant have a well-founded fear of being persecuted? And, if so, is that fear recognized under the Refugee Convention?  

The appeals court found that the applicant had a well-founded fear of persecution because of the documented unjust punishments of other members of groups she belonged to. In particular, the government’s demonstrated interest in the applicant, and the likelihood she would suffer an unjust arrest and punishment if returned home, constituted this well-founded fear. Further, the court found that the applicant’s political opinion – one ground for relief under the Convention – encompassed her actions in aiding disaster relief efforts. As such, the applicant was granted refugee status.

By failing to take all these factors into consideration, the Prefect disregarded Provision 11 in its decision to deport Mr. Sheel.  

Potential takeaways for future climate migration litigation 

  • This case involves an individual who feared return to her home because of state persecution of individuals who assisted in disaster relief. It therefore shows how a government’s response, or lack thereof, to a natural disaster can indirectly trigger a ground for refugee protection. 
  • The Burmese government actively rejected support from outside entities for disaster relief after the cyclone. The government then began to punish those who tried to provide disaster assistance themselves, opening the door for claims of political opinion persecution in the context of climate disasters.  
  • The appeals court did not address whether suffering from the cyclone itself, and the government’s lack of adequate response, might constitute persecution, but, as in other cases in the region, the answer likely would have been no under the Refugee Convention.  
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