The Application of Article 1F of the Refugee Convention in New Zealand: Current Issues

Abstract

This paper has been deliberately discursive in its approach to identifying and discussing current issues in the application of article 1F. In this sense, it has mirrored its source material. The 1F clauses are a complex synthesis of domestic and international law, of substance and procedure, of concern for the protection of human rights and concern to shun and punish suspected criminals and safeguard states from their presence. The issues it raises are doctrinally complicated; this is exacerbated by the frequently esoteric nature of the legal issues under consideration, and, stacked on top of each other in jurisprudence as they were in Tamil X, these issues can be practically difficult to isolate and resolve. The deconstructionist stance of this paper has been in response to these difficulties. Notwithstanding, the discussion of each specific issue has revealed several lessons of general application. After a slow start, article 1F has become an increasingly important, and increasingly litigated, part of the Refugee Convention. Certain forms of exclusion, namely participation in joint criminal enterprises producing international crimes and acts contrary to the purposes and principles of the UN, are at the forefront of this increase. Most importantly, both first-instance decision-makers and judges on appeal must be adaptive to developments in international law insofar as they affect the application of the clauses. This applies across each of the clauses, from pinpointing the relevant legal tests for secondary participation in international crimes, to ascertaining the true purposes and principles of the United Nations. The author hopes the guidance proves useful for the resolution of the (increasing number of) 1F appeals.