New Zealand’s Immigration and Protection Tribunal recently considered a “climate change refugee” case under its relatively new jurisdiction, which includes protection under the ICCPR as well as the Refugee Convention.
The appellant in AF (Kiribati)  NZIPT 800413 hoped to stay in New Zealand with his family, citing the deteriorating conditions in his home island of Kirabati. This Pacific island has a long history of habitation and also invasion from other islands such as Tonga or Fiji, but from the 18th century onwards was under British and imperial influence, as a result of which – as much as of its geography – it has connections to New Zealand. New Zealand’s refugee and protection regime is relatively generous in operation, but it can generally afford to be so. New Zealand is more distant from everywhere than is usually appreciated – three or four hours from Australia by aeroplane – and, with its Advance Passenger Screening, it rarely sees any arrivals without a visa or visa waiver. Nevertheless, it does accept visitors and workers from the much poorer, Pacific islands, many of whom do prefer not to return.
In AF’s case, the Tribunal Judge, B L Burson, reviewed for example a decision of the earlier Refugee Status Appeals Authority from 2000. Seven grouped appeals from Tuvalu brought largely the same result. The appellants had nothing left in their country, which was sinking. Nevertheless, held Mr Joe of the Refugee Status Appeals Authority, they were not within the Refugee Convention but were “unfortunate victims … of the forces of nature”. Mr Burson’s later, closer discussion did not displace that.
Mr Burson first reviewed copious country information, establishing that employment, housing, health and even the supply of fresh drinking water in Kiribati are deteriorating as the sea gradually encroaches further on an already-overcrowded island. But the Kiribatians’ misery does not bring them within the parameters of New Zealand’s international obligations. The submission that the persecution necessary for a successful refugee claim does not require human agency, whether from the state or tolerated by it, was rejected as brought from a non-legal source and not applying in the IPT. Mr Burson did discuss the potential overlap between environmental degradation and persecution, as for example obtained with the Marsh Arabs of Iraq, but AF’s situation fell short of denial of his core human rights and did not bring him protection as a refugee or under the ICCPR’s guarantees against “arbitrary deprivation of life”. Kiribati had taken no steps to deny the conditions of life to AF or his family, and moreover the risk to them was not “imminent”. The IPT left AF with only the hope – but it is a hope – that if given notice of liability for deportation, he might succeed in an alternative line of argument, under New Zealand’s humanitarian rules, which prevent deportation if it is “unjust or unduly harsh” (s 207 Immigration Act 2009).
Refugee Convention jurisprudence has broadened to include women and gay people as identifiable refugee categories, but “persecution” remains central. The potential of other treaties to assist the wider range of climate change “refugees” remains to be seen – for example whether and how the Convention on the Reduction of Statelessness will be invoked for the bereft inhabitants if and when these islands finally disappear.
Dr Caroline Sawyer is a Senior Lecturer at the Faculty of Law, Victoria University of Wellington