The Supreme Court of New Zealand Friday dismissed the appeal of the government seeking rejection of the refugee status of an Eezham Tamil who was captaining a ship carrying arms to the LTTE. The court in its judgement said: “At all relevant times the Tamil Tigers was an organisation having the goals of self-determination for Tamils and securing an independent Tamil state in northeast Sri Lanka. The principal objective was to induce the government of Sri Lanka to concede such political change. These characteristics made the Tamil Tigers a political organisation notwithstanding its use, at times, of proscribed methods of advancing its cause. That much is not in dispute”.
“The appeal is dismissed. The respondent’s application for recognition of refugee status is remitted to the Refugee Status Appeals Authority for consideration in accordance with the Court of Appeal’s order. Costs are reserved and counsel may submit memoranda if necessary,” said the judgment of the court Friday.
The New Zealand government earlier rejected the refugee status applications of three persons from the ship and two of them were already sent out of the country. Only the captain decided to challenge. The Appeal Court’s decision was in his favour, but the government appealed against it in the Supreme Court.
The government side in its arguments cited Indian court decisions on similar cases. They were not acceptable to the New Zealand Supreme Court.
New Zealand has not banned the LTTE.
Eezham Tamils in New Zealand made a strong appeal in 2000 against a ban proposal of the LTTE, on the grounds of the Preamble of the Universal Declaration of Human Rights that says: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.
A Parliamentary Select Committee of New Zealand appointed for the purpose decided to drop the ban proposal.
The benefit of the struggle of New Zealand Tamils in 2000 is now reaped in the Supreme Court Judgment, says A Theva Rajan, a veteran Tamil activist in New Zealand, who is also a member of the Transnational Government of Tamil Eelam.
Full text of the media release issued by the Supreme Court of New Zealand on Friday follows:
27 August 2010
MEDIA RELEASE – FOR IMMEDIATE PUBLICATION
THE ATTORNEY-GENERAL (MINISTER OF IMMIGRATION) v TAMIL X AND REFUGEE STATUS APPEALS AUTHORITY SC 107/2009 [2010] NZSC 107
PRESS SUMMARY
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.
The Supreme Court, in a unanimous decision, has dismissed an appeal by the Attorney-General against a Court of Appeal judgment which held that the respondent, a Sri Lankan citizen who arrived in New Zealand in 2001, was eligible to claim refugee status. The Refugee Convention excludes from refugee status persons in respect of whom there are serious reasons for considering that they have committed a crime against humanity or a serious non-political crime.
The respondent had been chief engineer on a cargo vessel owned by the Liberation Tigers of Tamil Eelam (Tamil Tigers) during a voyage in which it was transporting munitions and weapons to Sri Lanka for their use. The Refugee Status Appeals Authority found that, before the ship embarked, the respondent knew of the nature of the cargo, its destination and of many atrocities committed by the Tamil Tigers during the civil war in Sri Lanka. The voyage concerned ended when the vessel was intercepted by the Indian Navy and escorted towards Chennai. Before reaching that port it was scuttled by those on board, some of whom were Tamil Tigers soldiers. An Indian Court convicted the respondent and other crew members of criminal charges arising from this event.
Judgement by the Supreme Court of New Zealand
The Crown argued in the Supreme Court that the respondent’s involvement in the voyage made him complicit in the atrocities committed by the Tamil Tigers, so that he had committed crimes against humanity as an accomplice. As well, his involvement in the sinking of the vessel was a serious non-political crime. The Crown’s submission was that each aspect of his conduct disqualified him from being recognised as a refugee under the Refugee Convention and New Zealand law.
The Supreme Court has decided that it was not shown that the respondent’s supportive activities were actually linked to any atrocities committed by the Tamil Tigers. This was because the armaments which he helped transport did not reach the Tamil Tigers as they went down with the ship. Accordingly, it was not established that any crime against humanity had been committed to which the respondent was an accomplice. Furthermore, any crime committed in relation to the sinking of the vessel was of a political nature which did not disqualify the respondent from holding refugee status under the Convention.
Media Release by the Supreme Court of New Zealand
The Supreme Court has referred the respondent’s application for refugee status back to the Appeals Authority for consideration of whether he meets the general requirements of the Convention and New Zealand law to be recognised as a refugee.
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