Attorney General asks to appear before Supreme Court

The New Zealand Attorney General has applied for leave to the Supreme Court to overturn a Court of Appeal Judgment which ordered the Refugee Status Appeals Authority to reconsider a refugee application by a Sri Lankan couple.  In a follow-up memorandum,  Attorney General Chris Finlayson advised he personally wishes to appear as counsel if a hearing is granted.

Finlayson refused to comment why this extraordinary move to personally appear before the Court was deemed necessary.

In seeking to overturn the unanimous decision in X v Refugee Status Appeals Authority CA109/2008 [2009] NZCA 488, the Attorney General wishes to argue that the Authority has wide discretion to deny refugee applications and that the 1951 International Treaty requiring “serious reasons” to deny refugee status must be more loosely interpreted than what the Court of Appeal suggested was the patently evident English meaning.

It is unclear why Mr Finlayson considers this case so significant to personally appear.  The case concerns a Sri Lankan couple who applied for refugee status in 2001.  Their application was rejected by domestic refugee expert Roger Haines QC on behalf of the Authority in 2006.  The Crown application alludes to Finlayson’s meeting in London last year where he pledged to his counterparts in Canada, Australia, the U.S. and U.K. to prosecute “those responsible for genocide”, even though this charge is not at issue in this appeal.  It seems just as likely that it is a political move to defend Mr Haines’ reputation as the New Zealand legal expert and leading refugee law advocate.

The application by the Attorney General is opposed and the Supreme Court has not decided yet whether to hear the matter.

The couple, who cannot be named, came to New Zealand in September 2001.  In the early 1990’s the husband was an engineer on a ship which transported munitions for the Tamil Tigers in the long running civil war.  The ship he was on was scuttled and he faced trial in India, where he was acquitted of all charges.  In an Indian Supreme Court ruling which was criticised by every tribunal in New Zealand, the man spent 8 ½ years in an Indian prison – in part, because he did not have proper papers to be in India.

The Authority loosely relied upon the Rome Statute of the International Criminal Court which states “individual criminal responsibility” occurs when a person contributes to the commission of a crime by a group with a common purpose.  The Tamil Tigers’ were known to wage warfare indiscriminately.   Mr X was assumed guilty on the basis he worked on a ship which transported munitions which could likely be used to kill innocent civilians.

Mr X filed a judicial review application to the Auckland High Court, where Patricia Courtney J dismissed it on the grounds the denial of refugee status was open to the Authority to make.

In a 104 page judgment, the Court of Appeal overturned both decisions, and determined the Authority did not have “serious reasons” to refuse refugee status.  As the Authority applied the refugee treaty, Baragwanath J stated “it is unlikely that such a low level test could be regarded as appropriate to measure serious reasons for considering commission of a crime… Pitched so low, it might have caught members of the mercantile marine who during the Second World War manned vessels carrying explosives which the crew knew might be used in retaliatory raids on cities rather than against military targets.”

Both sides agree that a similar appeal is currently awaiting word from the House of Lords as to whether it will be heard.