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AF (Kiribati) | Teitiota v The Chief Executive of Ministry of Business, Innovation and Employment - decision

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AF (Kiribati) | Teitiota v The Chief Executive of Ministry of Business, Innovation and Employment - judgment

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Mr. Teitiota came to New Zealand from Kiribati in 2007 and remained after his permit expired in 2010. After being apprehended following a traffic stop, Mr. Teitiota applied for refugee status under s 129 of the Immigration Act 2009 and/or protected person status under s 131. The basis for Mr. Teitiota’s application was that his homeland, Kiribati, is facing steadily rising sea water levels as a result of climate change, and that over time, the rising sea water levels and associated environmental degradation will force the inhabitants of Kiribati to leave their islands.

A Refugee and Protection Officer declined Mr. Teitiota’s application. Mr. Teitiota then appealed against the Officer’s decision to the Immigration and Protection Tribunal. While the Tribunal accepted that Mr. Teitiota’s concerns about Kiribati and its future were justified, it dismissed his appeal, holding that he was neither a refugee within the meaning of the Refugee Convention nor a protected person within the meaning of the International Covenant on Civil and Political Rights (“ICCPR”). 

The Tribunal found that the Appellant could not be recognized as a refugee under Article 1(A)(2) of the Refugee Convention. The Tribunal found that there was no evidence that the appellant’s life would be in jeopardy due to the environmental conditions in Kiribati, or that he would be subject to any particular interpersonal threats due to disputes over land. The effects of environmental degradation were faced by the population generally, not by members of particular groups, as required by the Refugee Convention definition ([75]). 

The Tribunal also found that the appellant was not a protected person under the ICCPR. The appellant failed to establish that there was a sufficient degree of risk to his life or that of his family at the time of the decision. Since the Kiribati government is active in international negotiations about climate change, and is cognizant of and trying to ameliorate the threats posed to its population, there is no indication the appellant will be “arbitrarily deprived” of his right to life pursuant to Article 6 of the ICCPR ([88]). 

Mr. Teitiota then sought leave from the High Court to appeal against the Tribunal’s decision on a question of law, identifying six possible questions of law. The High Court declined the application, holding that none of the six questions raised an arguable question of law of general or public importance. The High Court did note that, as correctly recognized by the Tribunal, there is a complex inter-relationship between natural disasters, environmental degradation and human vulnerability, and that “sometimes a tenable pathway to international protection under the Refugee Convention can result” ([27]). 

Mr. Teitiota sought leave from the Court of Appeal to appeal to the High Court. That application was also refused, with the Court of Appeal finding that none of the six questions were sufficient to justify the grant of leave. The Court of Appeal did note that “no-one should read this judgment as downplaying the importance of climate change. It is a major and growing concern for the international community. The point this judgment makes is that climate change and its effect on countries like Kiribati is not appropriately addressed under the Refugee Convention” ([41]). 

Subsequently, Mr. Teitiota sought leave to appeal to the Supreme Court of New Zealand against the Court of Appeal’s decision. The Supreme Court agreed with the lower courts, finding that in the particular factual context of this case, the questions identified did not raise an arguable question of law of general or public importance ([12]). The Supreme Court did note that both the Tribunal and High Court had emphasised that their decisions 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 that the Supreme Court’s decision “should not be taken as ruling out that possibility in an appropriate case” ([13]). 

Note: Refer also to the United Nations Human Rights Committee Views adopted on Teitiota Communication (https://climatecasechart.com/non-us-case/un-human-rights-committee-views-adopted-on-teitiota-communication/).