Rt. Hon. Helen Clark
PO Box 18888
Dear Madam Prime Minister,
We write to express our concerns with the ongoing delays in reaching a final resolution to the status of Mr. Ahmed Zaoui, an Algerian national recognized by New Zealand’s Refugee Status Appeal Authority as a refugee.
We write also to urge you to address other problems highlighted by Mr. Zaoui’s case, including concerns surrounding the reunification of Mr. Zaoui with his family, and the need for an immediate review of the legislation relating to security assessments of refugees in order to address the cause of the delays identified in Mr. Zaoui’s case. We also encourage you to reaffirm that Mr. Zaoui will not be sent to any country where he could be in danger of being subjected to torture or arbitrary deprivation of his life, or where he may be in danger of being further deported to such a country.
1. Ongoing delays in review of Mr. Zaoui’s security certificate
On March 20, 2003 the Director of the Security and Intelligence Services (SIS) issued a certificate stating that Mr. Zaoui’s continued presence in New Zealand constituted a “threat to national security,” and that there were reasonable grounds to regard him as “a danger to the security of New Zealand.” Relying upon this certificate your Minister of Immigration ordered Mr. Zaoui’s deportation.
Seven days later, Mr. Zaoui appealed this security certificate to the Inspector-General of Intelligence and Security. Today, more than 45 months after Mr. Zaoui filed this appeal, the Inspector-General’s review is yet to be completed. Although Human Rights Watch appreciates that the review process was temporarily suspended pending the appeal by Mr. Zaoui of an interlocutory decision by the Inspector-General regarding the scope and procedure of his review, we note that it has still been more than 18 months since the final decision by New Zealand’s Supreme Court on that interlocutory decision.
We note that your Solicitor-General indicated to the Supreme Court of New Zealand in December 2004 that the review of the security certificate would take only six to twelve months. Mr. Zaoui’s lawyers have expressed concerns that the review hearing may not begin until July or August, 2007. In light of these considerations, Human Rights Watch has serious concerns that the appeal remains unfinished.
Basic due process standards require the prompt and fair resolution of Mr. Zaoui’s final status. The need to provide a speedy process is particularly urgent since Mr. Zaoui is currently subject to limits on his freedom of movement, freedom to choose a place of residence, and his right to work. Since being released on bail from prison detention in December 2004, Mr. Zaoui has been required to report twice a week to the Auckland Central Police Station, to reside at the Dominican Friary in Auckland, and to observe a curfew between 10 p.m. and 6 a.m. As the Supreme Court of New Zealand has acknowledged, “Release on bail is not liberty.” Therefore, Human Rights Watch urges you to ensure that your government is doing all that it is empowered to do to ensure the speedy settlement of Mr. Zaoui’s final status, and to provide a full explanation of the causes of any ongoing delays.
2. Review of security risk legislation
Human Rights Watch is encouraged that you have committed your government to conduct a review of the relevant laws that have resulted in these undue delays in Mr. Zaoui’s case. Pointedly, you have called the existing legislation “badly flawed” and “a dog’s breakfast.” We note that in 2004, the United Nations Committee Against Torture recommended that New Zealand: “Immediately take steps to review the legislation relating to the security-risk certificate in order to ensure that appeals can effectively be made against decisions to detain, remove or deport a person, extend the time given to the Minister of Immigration to adopt a decision and ensure full respect of article 3 of the Convention [against Torture].” Nonetheless, a review of the law relating to security risks has still not been carried out. Human Rights Watch is concerned that in the meantime any legislative or structural flaws may expose future refugees arriving in New Zealand to similar periods of prolonged detention and undue delays. We urge you to promptly implement the United Nations Committee Against Torture’s recommendations, and conduct the necessary review.
3. Family reunification
Mr. Zaoui is married and is the father of four minor children. The UN High Commissioner for Refugees has recognized his wife and children as refugees in a country that is not a party to the 1951 Refugee Convention. They are, therefore, prone to the possibility of forced deportation or return. Human Rights Watch understands that the special needs of Mr. Zaoui’s 14-year-old son cannot be met in the country where they are currently living, and that he is unable to attend school. The United Nations High Commissioner for Refugees has twice recommended and requested that the New Zealand government allow the reunification of Mr. Zaoui’s family in New Zealand, but your Minister of Immigration has declined to do so.
The principle of family reunification—including the admission of “at least the spouse and minor or dependent children of any person to whom temporary refuge or durable asylum has been granted” —has been consistently recognized by international standards. The Convention on the Rights of the Child, to which New Zealand is a party, states that “applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.” The obligation to deal with family reunification requests in a “positive” manner means that New Zealand must take affirmative action to reunite Mr. Zaoui’s family. In accordance with the Convention on the Rights of the Child, and in consideration of the best interests of the children, Human Rights Watch requests that you facilitate the immediate reunification of Mr. Zaoui’s wife and children with him.
4. Absolute bar on returning an individual to face torture or death
Human Rights Watch notes that under both international and New Zealand law there is an absolute bar on returning an individual to another country when there are “substantial grounds for believing that he would be in danger of being subjected to torture” or arbitrary deprivation of life.
As noted in the Convention against Torture, for the purpose of determining whether there are such grounds, the competent authorities must take into account “all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”
Accurate assessments of the situation in Algeria, however, have been hampered by the reluctance of the country’s government to open itself to international monitoring and inspection. For example, the United Nations Working Group on Enforced and Involuntary Disappearances has been waiting six years for approval of its request for a visit. The United Nations Special Rapporteur on Torture and the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions are also waiting for authorization to conduct visits.
Human Rights Watch last visited Algeria in June 2005 and concluded that the authorities continue to use torture, especially during interrogation of security suspects, although the number of reported cases has declined since the years of intensive political strife in the mid-1990s. The vast majority of allegations of torture made during 2005 and in previous years were not investigated by local authorities. Although reports of summary executions are no longer commonplace, the security forces have killed unarmed persons in disputed circumstances.
In light of the current situation in Algeria, Human Rights Watch is encouraged by the commitment by your government not to return Mr. Zaoui to Algeria by force. Nevertheless, we urge you to resolve his final status forthwith in accordance with international legal standards.
Hon. David Cunliffe
Minister of Immigration
Inspector-General of Intelligence and Security