‘Refugee’ case

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Friday, December 20, 2013

ONE of the magistrates of the Auckland High Court whom I had a chance to work with, Justice John Priestley, retired this week. Balanced and fair, the judge wrote one of his final decisions in a case that I managed and distributed to media outlets throughout the world, which found it timely and of general interest.

The case of Ioane Teitiota vs. The Chief Executive of the Ministry of Business Innovation and Employment (CIV-2013-404-3528) released on November 26 was an appeal from the decision of the Immigration and Protection Tribunal. The appellant is a citizen of Kiribati, an island group in the southwest Pacific Ocean, who was denied refugee status in New Zealand having lived illegally after his work permit expired.

He questio­n­­ed the tribunal’s decision in denying his claim for refugee status. His primary argument to be declared as a refugee was due to climate change that has caused natural disasters, environmental degradation and water and food deprivation to Kiribati. He believed that if he returned to his country, he and his family would suffer serious harm.

The primary submission of appellant was that a person who established his way of life is seriously impaired by warfare or climate change should be entitled to the protection of the 1951 Convention relating to the Status of Refugees, supplemented by the 1967 Protocol, and incorporated into the New Zealand domestic law by virtue of the Immigration Act 2009.

Justice Priestley wrote a three-page introduction in his decision on the origin of “refugee.” He cited the New Shorter Oxford English Dictionary definition as “a person driven from his or her home to seek refuge, especially in a foreign country, from war, religious persecution, political troubles, natural disaster, etc.”

He adapted the Tribunal’s conclusion that “people fleeing natural disaster cannot…obtain protection outside their country under the Refugee Convention. In his analysis, he pointedly said the application before Him was “misguided.” While appreciating the effort of the appellant, through his lawyer, in his novel and optimistic submissions, the judge said that “they are unconvincing and must fail.”

He went to say that “(o)n a broad level, were they to succeed and be adopted in other jurisdictions, at a stroke, millions of people who are facing medium-term economic deprivation, or the immediate consequences of natural disasters or warfare, or indeed presumptive hardships caused by climate change, would be entitled to protection under the Refugee Convention.”

If Justice Priestley favored the appellant, not only would the latter’s family be benefitted but also inhabitants of nations who suffer from the effect of climate change, and that would include the Philippines where disasters are a way of life.

He would have been lauded by millions in disaster-prone countries, but of course, that would have been unfair to countries such as New Zealand who will be made responsible for “climate change refugees.”

The good judge was fair and balanced in his judgment. The task of addressing the dangers of climate change belongs to legislators and not the court.

Published in the Sun.Star Cebu newspaper on December 21, 2013.


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