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The Curious Case Of The First Climate Change Refugee

Ioane Teitiota V. The Chief Executive Of Ministry Of Business, Innovation And Employment
CA 50/2014 [2015] NZSC 107

This is primarily a New Zealand case which has also been widely known as the Climate Refugee Case because of its decision pertaining to Kiribati, a Pacific Island Nation on the application of a refugee status based on the effects of Climate Change. The Apex Court of the New Zealand ruled against the applicant's appeal when it dismissed an application for leave to appeal the decision of the previous Court of Appeal, in July 2015. This has been briefly known as the Teitiota Case.

The original petitioner of the case is Mr. Ioane Teitota [A] who earlier had moved to New Zealand along with his wife due to various climatic change conditions, from the Island of Kiribati in the year 2007.

They birthed 3 children after arriving to New Zealand but the law of the State meant, those children were not natural citizens according to the Citizenship Act of 1977. Even after the Visa of the family expired in October 2010, the family kept residing illegally and to avoid deportation in the future, A had applied for a refugee status under Part 5 of the Immigration Act 2009, which is a legislation that incorporates into the local law, the Convention Relating to the Status of Refugees, 1951.

Since, he had moved to New Zealand from Kiribati owing to the climate changes, A claimed that he was entitled to obtain the refugee title, on the basis of changes to the environment in Kiribati caused by the sea-level rise associated with climate change.

The primary and sole issue dealt with, in this case was whether the word Refugee constituted and incorporated those who were refugees by way of climate change per se? 

Procedural History, Arguments And Judgement
  1. The Immigration and Protection Tribunal
    According to the NZ Government, The Immigration and Protection Tribunal (IPT) is an independent body that hears appeals from decisions made by Immigration New Zealand, including those of refugee and protection officers within the Refugee Status Branch. The Immigration of New Zealand is part of the Ministry of Business, Innovation and Employment (MBIE).

    A appealed a decision in 2013 which the IPT had turned down. The IPT noted that the limited capacity of South Tarawa to carry its population is being significantly compromised by the effects of population growth, urbanization, and limited infrastructure development, particularly in relation to sanitation.

    The negative impacts of these factors on the carrying capacity of the land on Tarawa atoll are being exacerbated by the effects of both sudden onset environmental events (storms) and slow-onset processes (sea-level-rise). However, the IPT had also pointed out that A has undertaken what may be termed a voluntary adaptive migration and that his decision to migrate to New Zealand could not be seen as forced but rather voluntary.

    Probing into how the mechanism of persecution worked with respect to the International Refugee Law in NZ worked, the IPT mentioned that either the failure of the State in regulating its own authorities who commit violations of human rights, or the fact that the dismal failure to initiate new steps to effectively control and condense the risk of harm committed by the Non-State Actors in NZ.

    However, the IPT did mention that this requirement of some form of human agency does not mean that environmental degradation, whether associated with climate change or not, can never create pathways into the Refugee Convention or protected person jurisdiction.

    The IPT then inspected the position of the international law with respect to the refugees and other natural disasters and environmental degradation, understanding the fact that the aforementioned reasons could give birth to various human rights issues, it was still at the onus of Mr. A to have fulfilled the criteria under what was demanded by the Refugee Convention.

    The IPT eventually discovered that the evidences so submitted by Mr. A did not convince the IPT enough in the faith of in any occurring event should Mr. A return to his island of origin Kiribati are so parlous that his life will be placed in jeopardy, or that he and his family will not be able to resume their prior subsistence life with dignity.

    Also, in the lines of same investigation, there were no evidences presented to prove that Kiribati Government failed to protect its citizens due to this naturally occurred phenomenon and that the specific issue did not violate any of his livelihood in Kiribati, nor it degraded any general public's livelihood en masse. The IPT thus arrived to the conclusion that Mr. A was not a refugee under the definitions of the Refugee Convention.
  2. The High Court
    Mr. A appealed to the High Court of NZ to appeal the previous decision that was against his favour claiming against the very law that was questioning his status of being in NZ. The HC refused to grant leave to appeal, considered A's arguments to be novel and optimistic while it also found it to be unconvincing. The HC Judge opined that it was not the duty of the HC to alter the scope of the Refugee Convention and determine that the public en masse who are subjected to medium-term economic deprivation or warfare to protection or the instant consequences of natural disasters, and thus agreed to the opinion of the IPT. The Judge stated that:

    a sociological refugee or person seeking to better his or her life by escaping the perceived results of climate change is not a person to whom Article 1A(2) of the Refugee Convention applies.
  3. The Court of Appeal
    Mr. A decided to again appeal to the Court of Appeal of New Zealand against the decision laid by the High Court, again for the same reason of challenging the decision and the laws that questioned his status of being in the NZ territory as a Refugee. The CoA again held that there was nothing questionable about the decision of both IPT and the High court nor were erroneous in law and thus, declined to grant leave to appeal, citing the reason that the Tribunal rendered proper verdict referring to the facts of the instant case and the prevailing laws, well.

    Merely citing the non-acute, non-threatening condition of Kiribati and the failure to produce evidence that a lot of people were getting affected because of the same disaster, meant Mr. A did not come into the ambit of definitions under the Refugee Convention. It also stated that this would have been the position even if the most sympathetic, ambulatory approach permissible to interpreting the Convention is taken. The Convention could not be used to directly address what was the situation at Kiribati.

    The CoA further ruled that although it has every sympathy with the people of Kiribati, Mr. Teitiota's claim for recognition as a refugee is fundamentally misconceived. It attempts to stand the Convention on its head.
  4. The Supreme Court
    Mr. A decided to challenge the Court of Appeal's decision, again on the same basis, fighting for his status of refuge, at the Supreme Court of NZ, the highest Court in the State. The five-member panel of the Apex Court held that:
    in the particular factual context of this case (even with the addition of the new evidence), the questions identified raise no arguable question of law of general or public importance. The latest evidence referred to, was the Synthesis Report of the Fifth Assessment Report of November 2014 on the Intergovernmental Panel on Climate Change as well as the Original Decision of MBIE.
The Apex Court held that the lower courts inferred into the law correctly and there was nothing erroneous about it and affirmed with the Refugee Convention. It also confirmed that Mr. A was not in an immediate danger or harm as well as there is no evidence that the Government of Kiribati is failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it can.

The SC however, did note that what IPT or the HC held:
did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction and stated that this particular decision should not be taken as ruling out that possibility in an appropriate case.

Therefore, studying on this case, one position becomes clear. It is observable that whatever claims that Mr. A has raised is neither immediate nor vanquishing, as how he claims the natural phenomena to be threatening. Meanwhile his state of origin Kiribati is neither at any immediate danger as projected by Mr. A throughout the case history. It is a recurring, natural phenomena that climate change or raising sea levels could be attributed to a lot of factors outside the human's control to curb the future threats. When the index of global warming is taken into consideration, the threat of climate change, is unstoppable, consistent and inevitable.

And Kiribati being a small island is basically more prone to being relatively affected more like other small and similar islands, than the other landlocked or bigger island countries like Australia or New Zealand. These small islands are naturally at better threat comparatively but such threat is not immediate enough to call out for the justification pleaded by Mr. A.

As how the present-day international legal framework, that has gone through various revisions, updates, mutations etc., holds, there is not much safeguard against of similar fellow public en masse, that live in Kiribati, who are also faced with a similar situation of this.

This is not because the lack of concentration on the welfare of such people, but because the threat is not sensed as a vanquishing one. If we read the history on various cases on various people claiming refuge under the Refugee Convention, have tasted very little success, that too on occasions where their situations have been compelling and convincing enough for various courts to recommend changes at the international fraternity.

As the idea of Refugee Convention roots back to the League of Nations, the first ever tangible attempt to unify several states for the global welfare and collective wellness, the Office of the UN Commissioner for Refugees, was found, which still is operational till date, only to provide legal safeguard for such refugees as recognised by the Convention.

Keeping all of these in mind, to establish the wellness of the Refugees through a tangible framework of law, the Refugees Convention of the 1951 was brought into existence. However, the claims raised by Mr. A to become a refugee could be argued in a logical way, the position as it stands presently with respect to the existing definitions cannot include him unless a Court recommends the UN to amend it.

Also, the threat as raised by Mr. A to seek refuge, is also absent in the Convention regarding any climatic change factor. But this entire fiasco of the case raises a moot point as how the need for the Refugee Convention to include the situation of a refuge under real climatic conditions factor as the likes of ‘Climate Displaced Persons', that was best referred in this instant case.

There is one more framework, The United Nations High Commissioner for Refugees that was formed in 1950 in the aftermath of the second world war where millions of people were displaced and deported as a result of various states expelling large masse of people based on race, ethnicity, culture and origins.

The UNHCR's actions and motto are based on the welfare of the refugees and large islands of Australia and NZ have been the ratifying states to this Convention as early as 1951, as well as the Protocol pertaining to the Status of Global Refugees that was signed in 1967. As a signatory to the Convention, NZ has agreed to allow refugees, who qualify under the definitions of the Refugee Convention, into their State and has been complying with the same ever since their ratification.

The same Article 1 of the Convention that defines who refugees are, also highlights the fact that a State shall not send back such asylum seekers whose life are threatened at their country of origin. But there has not been an explicit mention about the case of refugees who seek asylum due to climatic changes.

It is pertinent to note that the entire case of Mr. A surrounds the issue of redefining the definition of Refugee and expand its scope to include ‘refugees due to climatic changes. So as the case has come past 3 Courts and the IPT, only one question has been principally examined, that is the refugee status of Mr. A. Nothing more has been discussed by any of the Courts.

It is also interesting to note that while the HC denied of any responsibilities as imposed on it, by any of the existing International Conventions, there was another unpolished possibility that arose, amidst the High Court deciding on the case.

The Humanitarian Concerns and the thought of progressive thinking to apprehend the future of refugee law arose and at this present point of growing concerns, it is best the International Conventions ruling on the status of Refugees, take suo motto action to redefine the scope of ‘who is a Refugee' for the betterment of the world and upholding high morals of humanitarian values, pan world. 

It may be a small case of a humble individual wanting to live in a more secure environment with the guarantee his family's life is not under subjugation. However, Mr. A was unable to prove a compelling evidence to win the case, the aftermath of the case has sure left a void to think on the actual issue that could be a common issue in a matter of 20 years from today.

While the climatic changes and threats are becoming more tangible, it is time all the associated laws also see the change alongside the varying climate conditions. Mr. A would have lost the case today due to present position of law, but has paved way for an important step to be taken, in the future. It is high time, the Courts worldwide and the Non-State Actors too act on it immediately.     

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