Scoop Election 08: edited by Gordon Campbell

Gordon Campbell On The Yadegary Decision

August 15th, 2008

*****

While the release on bail of the Iranian Christian convert Thomas Yadegary is a victory in the short term – and a substantial relief for Yadegary himself – it may be the last gasp of judicial common sense before the Immigration Bill – as the Green MP Keith Locke and No Right Turn have both pointed out – snuffs out the power of the courts to grant relief in such situations, and thus by default, creates a system of indefinite detention in New Zealand.

To be sure, Yadegary’s situation poses a genuine dilemma for the state, and for our immigration processes. Yadegary is conceded by all parties to be a sincere convert to Christianity. Iran – judging by a string of recent reports, currently reserves the right to impose the death penalty for conversion from Islam, and is considering a law to make that penalty mandatory not only for converts, but for any Muslim who ‘promotes’ such conversion via the Internet.

Regardless, the New Zealand refugee determination process has consistently rejected Yadegary’s claims for protection. Since 2004, he has refused to sign the documents that would enable him to be issued a new passport, and thus be deported. The High Court and now the Court of Appeal have ruled that such continued detention in prison is in the circumstances “ exceptional.”

As they did during the Ahmed Zaoui bail proceedings, the judges compared Yadegary’s time in custody to the prison terms conferred for serious criminal offences, and released him on bail until such time as the documentation issues can be resolved. Or until New Zealand can negotiate with Iran an agreement that would make a valid passport no longer a prerequisite for someone being deported back to Iran.

It is obvious why the Crown, and the Immigration Service would be upset about the court decisions. What they fear is the encouragement for such converts to win themselves a de facto right to reside in New Zealand by simply waiting out their time in prison for a few years, and then applying to the courts for relief.

The allure of doing so can easily be exaggerated. Yadegary remains in legal limbo, unable to work, unable to plan for his future, and fearful that any time, New Zealand and Iran might stitch up a deal that could see him returned to the certainty of persecution at the very least, and to the very real prospect of execution for his religious beliefs. That is the fallacy of the argument that the likes of Yadegary – and Zaoui before him – can always end their confinement simply by catching the next plane home. In reality this is not an option, given what is waiting for them back home.

What the Immigration Bill does is come down hard on the other side of the dilemma, without resolving it. At clause 271A the Bill limits the power of the courts to grant bail to detainees, while clause 285 (2) allows for detention warrants to be rolled over for those people whose confinement hinges on some ‘ action or inaction’. Moreover, clause 285 (10) will prohibit judges from treating the period a deportee has already spent in detention as being an ‘ exceptional circumstance’ that carries weight in any decision about the granting of bail.

While that may protect the so called ‘ integrity’ of our immigration processes at one level, it does so by rendering it barbaric at another. Surely, it is unacceptable in the year 2008 to be knowingly passing a law that makes indefinite detention – for people who have committed no crime – a virtual inevitability. In essence, the authorities are cynically inviting people to end their maltreatment here, by taking their chances with the tyranny back home. Surely, New Zealand can do better than this.

No doubt, the Iranian Christian converts do pose a genuine problem for the immigration authorities. One solution would be for the Refugee Status Appeals Authority to take the evident fear of persecution felt by Yadegary and his colleagues a bit more seriously. Another alternative would be a form of house arrest with conditions, along UK lines. Keeping people locked up indefinitely – the choice that New Zealand is going for – seems the worst option available, and it ignores the experience other countries have gone through. Even the Australians, as No Right Turn has pointed out, are giving up on indefinite detention.

Special Advocates

The Immigration Bill has been reported back from select committee. In its final phases in the House, there will be room now only for tinkering with the content. The rotten core of the Bill – the widened use of secret information, and the extended powers of search, entry and detention without warrant now extended to ‘specially trained’ immigration officers ( yeah right ) – seems beyond redemption.

There is one area where some progress could still be made, if Labour manages to relocate its conscience. Labour backbenchers – such as Charles Chauvel and Russell Fairbrother ? – should be pressing for an improvement to the special advocate system, by enabling special advocates to consult their “ clients’ after the secret information has been seen.

The reason I feel hopeful is that the situation ovcrseas is in complete flux on this point – and as I describe below, the Canadian system may offer the solution. As I’ve already reported, parliamentaryselect committees in both Canada and the UK during 2007 heavily have heavily;criticized this gaping hole in the special advocate system. As far back as 2005, the UK House of Commons Constitutional Committee reported :

“We recommend that the Government reconsider its position on the question of contact between appellant and Special Advocate following the disclosure of closed material. It should not be impossible to construct appropriate safeguards to ensure national security in such circumstances and this would go a long way to improve the fairness of the Special Advocate system

We recommend, in particular, that the Government ensures that … steps are taken to make it easier for Special Advocates to communicate with appellants and their legal advisers after they have seen closed material, on a basis which does not compromise national security. This is for two reasons: first, to ensure that the Special Advocate is in a position to establish whether the charges or evidence can be challenged by evidence not available to the appellant; and second, so that the Special Advocate is able to form a coherent legal strategy with the appellant’s legal team;”

Such recommendations were repeated in the Canadian Senate Committee Report on the Anti-Terrorism Act, and in a Canadian Federal Court Service study, cited below. Currently in Canada, a constitutional case is being mounted to challenge the restrictions on communication between special advocates and clients. ( Can’t provide the link, but info is via personal communication with lawyers involved.)

It seems mystifying to me why the Bill – and the report back by select committee – have doggedly clung to the SIS party line, that it is impossible to devise a forum for contact without divulging the secret information. This risk is being willfully overstated. Frontline immigration officers will be entrusted with this secret information, to make decisions – yet Queens Counsel acting as special advocates will not be trusted to do so, lest they slip up and divulge the goods. The premises would be laughable, if the consequences weren’t so serious.

The only inference to be drawn is that New Zealand feels that it cannot allow the special advocates off the leash without incurring the displeasure of the overseas intelligence agencies on which the SIS is reliant. Should the fear of foreign intelligence agencies withdrawing access to information be allowed to set the boundaries for natural justice in New Zealand courtrooms and tribunals ? Shouldn’t this situation be of some concern to say, the Law Society at least ? One hopes this issue will be part of the discussion at the proposed Auckland University seminar on Human Rights at the Frontier’ due to take place on September 12.

To be sure, there is provision within the Bill for written communication between special advocates and the client, via the courts or the Immigration and Protection Tribunal after the secret information has been seen. This provision is in practice, almost worse than useless.

Last month for instance, eight special advocates in Britain filed a submission on “ Communication with Respondents” in Court of Appeal proceedings regarding their clients known as AE, AF, AM and AN. They concluded : “ The legal and practical constraints mean that this is a useful option only in very rare cases. It is not in practice a significant contribution to the fairness of the procedure.”

The reasons why are quite interesting. If you have to advise your opponent, and seek their permission over why you need to contact your client – you are, thereby, tipping off your legal opponent as to the possible gaps in their case, and signalling the gaps in your own case. Even in the rare cases where permission for written contact would be granted, any subsequent silence by the client on those earmarked points could be taken by the court or Tribunal as being highly significant. In our Immigration Bill at clause 238(7) it is therefore a good thing that the court or Tribunal is not required to consult with the organization originating the secret information, before allowing the written request.

Overall, the communication-in-writing method remains a clumsy and inadequate safeguard, and it is telling that none of the 8 special advocates cited above have ever used it. What about meaningful face to face contact and consultation, even after the secret information has been seen – is that really so impossible to manage, without spilling the beans ? The Canadian Senate Committee report in February 2007 thought it was entirely possible :

\ If the special advocate were able to have access to the party and his or her counsel after obtaining confidential information, we are confident that the advocate would be able to maintain the secrecy of the evidence and not disclose it.”

OK, now lets to get to the real point. Special advocates were imported into New Zealand via the UK use of them, and the UK in turn had imported them from Canada. .The irony is that the Canadian model – namely, the proceedings before the Canadian Security and Intelligence Review Committee ( or SIRC) – seems to be far more lenient on this crucial point than its imitators. As the British human rights organisation Justice has argued in filings late last month to the Court of Appeal in the same case involving the submission by the eight special advocates :

The SIRC procedure also differed substantially from the UK model, particularly in that it allowed the special advocate to maintain contact with the appellant and his lawyers ‘throughout the process’ and“: even after the former were fully apprised of the secreet information against the latter.”

That’s worth repeating – throughout the process, and even after the secret information has been seen. This reading of how SIRC operates is backed up by a recent international comparison of how the special advocate system is working. Following the judgment of the Canadian Supreme Court in the Charkaoui case, the Canadian Federal Court Service commissioned a comparative study on the use of special advocates in national security proceedings.

This study by Craig Forcese and Lorne Waldman is called Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom and New Zealand on the Use of Special Advocates in National Security Proceedings’ and was published in the Canadian Centre for Intelligence and Security Studies, August 2007. It concluded that the UK/NZ model ‘suffer[s] from a number of shortcomings, many of which do not exist in the model employed by the Canadian SIRC’ In particular, the study stressed the importance of ensuring effective communication between the special advocate and the appellant :

“Without question, it is essential that a Canadian special advocate system follow the SIRC model and permit the special advocate ongoing access to the named person throughout the proceeding …. [T]he SIRC outside counsel (legal agent) to whom we spoke was unequivocal about the importance of continuing access to the named person: even while counsel’s questions must be carefully phrased to avoid involuntary disclosure, he has seen government cases collapse based on information he could only have obtained because of this ongoing communication.

The United Kingdom and New Zealand systems that essentially bar ongoing communication with the named persons are excessive, and the justifications for them hinged on the suspicions harboured by the security services towards special advocates …. More than any other feature of the UK system, this absence of real access to the named person has undermined the credibility of the special advocate model”.

Now, I am not an expert on how the Canadian SIRC model operates. But judging from these authorities, it appears to provide natural justice provisions that New Zealand is flatly refusing to adopt in the Immigration Bill. To repeat though : in both Canada and the UK, the issue is still in flux, and eventual outcomes are uncertain.

For now though, if the over=riding worry in New Zealand about the Immigration Bill is that we have to be intransigent, lest we lose our precious access to foreign intelligence data – and if we are willing to tailor our justice system to prevent that calamity – then its worth pointing out that Canada is surviving OK, despite being more flexible.

At the very least, New Zealand should be exploring how the Canadians apparently manage to allow ‘ongoing access’ between special advocates and appellants – before we pass into our law an inferior, less humane set of procedures.

ENDS

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