Ioane Teitiota V. The Chief Executive Of Ministry Of Business, Innovation
CA 50/2014  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
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
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
- 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.
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
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.
- 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.
- 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
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.
- 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
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
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
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
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.