AW (Kiribati) v A REFUGEE AND PROTECTION OFFICER [2023] NZHC 1806

AW (Kiribati) v A REFUGEE AND PROTECTION OFFICER [2023] NZHC 1806 [11 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-002428[2023] NZHC 1806UNDER the Immigration Act 2009 and Rule 20.3 ofthe High Court RulesIN THE MATTER OF an application for leave to appeal underSection 245 of the Immigration Act 2009BETWEEN AW (Kiribati)ApplicantAND A REFUGEE AND PROTECTIONOFFICERRespondentHearing: 31 May 2023Appearances: D J Allan for ApplicantA J Ewing and S M Perera for RespondentJudgment: 11 July 2023JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 11 July 2023 at 3:30 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy Registrar..Counsel/Solicitors:D J Allan, HamiltonJane Walker, HamiltonCrown Law, Wellington[1] AW is a citizen of Kiribati who has been resident in New Zealand since 2008.He faces deportation following his conviction and imprisonment for serious offendingin New Zealand against another Kiribati citizen. AW seeks leave to appeal the decisionof the Immigration and Protection Tribunal (the Tribunal) declining AW's appealagainst a decision of a Refugee and Protection Officer declining AW refugee status orprotected person status.1 AW's claims to refugee and protected person status werebased principally on the risks he would face from the impacts of climate change ifrequired to return to Kiribati.[2] AW says the Tribunal made errors of law which raise issues of general or publicimportance that warrant proper consideration on appeal.[3] The Solicitor-General, on behalf of the Refugee and Protection Officer,opposes leave to appeal. The Solicitor-General says the Tribunal correctly understoodthe law and applied it to the facts. Accordingly, no seriously arguable question of lawand no issue of general or public importance arises.AW's grounds of appeal[4] AW's grounds of appeal evolved from those stated in his Notice of Applicationfor Leave to Appeal and his Notice of Appeal, both dated 25 November 2022.[5] In written submissions filed before the hearing, AW's counsel, Mr Allan, saidAW's grounds of appeal were that the Tribunal:(a) did not correctly apply its decision in BG (Fiji) and failed to assessAW's predicament in a principled and objective way;2(b) failed to decide whether the Convention relating to the Status ofRefugees (the Refugee Convention) should extend to claims based onsocio-economic deprivation and climate change; and1 AW (Kiribati) [2022] NZIPT 802085.2 BG (Fiji) [2012] NZIPT 800091.(c) failed to decide whether Article 6 of the International Covenant on Civiland Political Rights (ICCPR) should extend to refugee claims based onsocio-economic deprivation and climate change.[6] At the hearing before me on 31 May 2023, the first ground of appeal evolvedinto the ground that the Tribunal breached natural justice by failing to give notice ofan intention to make adverse findings of fact despite acknowledging the constraintson AW's ability to adduce evidence relevant to those findings.[7] Because no notice of this amended ground had been given in advance of thehearing, I gave leave to the Solicitor-General to file a memorandum on this questionafter the hearing. A memorandum opposing leave to appeal based on this ground wasduly filed on behalf of the Solicitor-General.Basis on which leave to appeal may be granted[8] Section 245(1) of the Immigration Act 2009 provides that a party to an appealbefore the Tribunal who is dissatisfied with any determination of the Tribunal as beingerroneous in point of law, may, with the leave of the High Court, appeal to the HighCourt on that question of law.[9] Section 245(3) provides that, in determining whether to grant leave to appeal,the Court must have regard to whether the question of law involved in the appeal isone that by reason of its general or public importance or for any other reason ought tobe submitted to the High Court for its decision.Definition of "refugee" in Refugee Convention[10] Article 1A(2) of the Refugee Convention, as amended by the Protocol relatingto the Status of Refugees, provides that a refugee is a person who:owing to well-founded fear of being persecuted for reasons of race, religion,nationality, membership of a particular social group or political opinion, isoutside the country of his nationality and is unable or, owing to such fear, isunwilling to avail himself of the protection of that country; or who, not havinga nationality and being outside the country of his former habitual residence, isunable or, owing to such fear, is unwilling to return to it.Other relevant provisions of Immigration Act 2009[11] Section 125 of the Immigration Act relevantly provides:(1) Every person who seeks recognition as a refugee in New Zealandunder the Refugee Convention must have that claim determined inaccordance with this Act.(2) Every person who seeks recognition as a protected person in NewZealand must have that claim determined in accordance with this Act.(3) Every question as to whether a person should continue to berecognised as a refugee in New Zealand or as a protected person inNew Zealand must be determined in accordance with this Act.[12] Section 129 provides that a person must be recognised as a refugee inaccordance with the Act if he or she is a refugee within the meaning of the RefugeeConvention. Further, a person who has been recognised as a refugee cannot bedeported from New Zealand except in certain circumstances that do not apply in thepresent case.[13] Section 131 provides that a person must be recognised as a protected person inNew Zealand under the ICCPR if there are substantial grounds for believing that he orshe would be in danger of being subjected to arbitrary deprivation of life or crueltreatment if deported from New Zealand. The section also provides that a person mustnot be recognised as a protected person under the ICCPR if he or she is able to accessmeaningful domestic protection in his or her country. A person who has beenrecognised as a protected person cannot be deported from New Zealand except incertain circumstances that do not apply in the present case.[14] Section 207 provides that the Tribunal must allow an appeal against liabilityfor deportation on humanitarian grounds only where it is satisfied that there areexceptional circumstances of a humanitarian nature that would make it unjust orunduly harsh for the appellant to be deported from New Zealand, and that it would notin all the circumstances be contrary to the public interest to allow the appellant toremain in New Zealand.[15] Section 226 provides that it is the responsibility of an appellant to establish hisor her claim, and the appellant must ensure that all information, evidence, andsubmissions that he or she wishes to have considered in support of the appeal areprovided to the Tribunal before it makes its decision.[16] Section 228 provides that, when considering an appeal, the Tribunal may seekinformation from any source. However, the Tribunal is not obliged to seek anyinformation, evidence, or submissions further to those provided by the appellant andthe Minister, the chief executive, or a refugee and protection officer (as the case maybe), and may determine the appeal or matter only on the basis of the information,evidence, and submissions provided by those persons.The Tribunal decision[17] The Tribunal recorded that AW claimed to have a well-founded fear of beingpersecuted or to be in danger of being subject to another qualifying form of harm onthe following grounds:3(a) he would be at risk of being killed or seriously harmed in a revengeattack by the family of the victim of AW's offending in New Zealand;(b) he would be at risk of suffering a level of socio-economic deprivationamounting to being persecuted or to degrading treatment; and(c) overlapping with the second ground, his safety and well-being wouldbe adversely impacted by climate change in ways amounting to beingpersecuted or to arbitrary deprivation of life or cruel treatment.[18] The Tribunal recorded that:[3] The principal issues to be determined are whether the appellant's fearof a revenge attack is well-founded and, if so, whether effective protectionwill be available to him so as to reduce the risk of such an attack to below thereal chance threshold; whether the appellant's anticipated socioeconomicpredicament in Kiribati can amount to being persecuted or degradingtreatment; and whether the risk to the appellant's safety and well-being due tothe adverse impacts of climate change amounts, in law, to being persecuted,or to arbitrary deprivation of life or cruel treatment and if so, whether the riskof these harms arising reaches the requisite standard of risk.3 AW (Kiribati)¸ above n 1, at [2].[19] The Tribunal recorded that it had provided information about Kiribati tocounsel in the course of the appeal, that counsel made closing submissions at theconclusion of the hearing and had filed further submissions and further evidence afterthe hearing.4Evidence of AW's circumstances[20] The Tribunal summarised the evidence of AW concerning his life in Kiribatibefore and after he moved to New Zealand in 2008. It said AW presented as a crediblewitness and accepted AW's account of his background circumstances. It also acceptedthat AW genuinely held subjective fears of retribution (from the family of the personagainst whom AW offended), impoverishment and risk to his safety and well-beingdue to the adverse effects of climate change.5[21] The Tribunal summarised the relevant facts as found as follows:[34] The appellant is a married man aged in his mid-50s. He has threesurviving siblings: a brother (a policeman) and two surviving sisters. Theelder of his two sisters is a teacher and is married; the other is married to apoliceman and lives in Besio on South Tarawa.[35] The appellant met his first wife in the early 1990s. They had threechildren together of which two survive; his son lives in North America whilehis daughter is married and lives with her husband in Kiribati. He is estrangedfrom both.[36] In about 2003 or 2004, following the breakdown of his first marriage,the appellant returned to live in Teaoraereke on South Tarawa. He met hissecond wife with whom he has four children. He supported his family throughpaid employment and then, using his own powered boat, by engaging in smallscale commercial fishing. He built a family home on a portion of family landowned by him under customary land tenure arrangements.[37] The appellant has been living in New Zealand since October 2008.His wife and four children are living in New Zealand as either citizens orresidents. They will not join him in Kiribati. The appellant is liable to bedeported as a result of his having been convicted in New Zealand of seriouscriminal offences. The victim is a citizen of Kiribati whose father lives nearbyto the village where the appellant's family land is located.[38] The house the appellant built is no longer available to him, nor is hisboat. The former was demolished and the latter sold to finance the family'smigration to New Zealand, his wife having obtained residence in New Zealandunder the Pacific Access Quota scheme.4 At [22] – [26].5 At [30].[39] The appellant's land is located on the ocean side of South Tarawa atolland, as at the time he emigrated to New Zealand, was without any sea walland was already being impacted by erosion.Application for refugee status[22] In accordance with the test formulated in its decision in DS (Iran),6 the Tribunalconsidered whether, objectively, on the facts as found, there was a real chance of AWbeing persecuted and, if so, whether there was a Refugee Convention reason for thatpersecution.[23] The Tribunal summarised relevant information concerning:(a) Policing in Kiribati – in relation to which it recorded that Kiribati has afunctioning Police force.7(b) Socio-economic conditions in Kiribati – in relation to which it noted:8(i) the population pressures in Kiribati which are expected toincrease in South Tarawa;(ii) the reliance of the Kiribati economy on income from fisheries;(iii) the maintenance of a Kiribati sovereign wealth fund; and(iv) the levels of state and customary practices of social protection,and the breaking down of the latter.(c) The Pacific hazard-scape, which is characterised by a variety of hazardtypes and, in the case of climate-related hazards, an increasingfrequency and intensity. The Tribunal noted that AW's village wasassessed as being of "medium" risk in terms of sea-level rise.96 DS (Iran) [2016] NZIPT 800788 at [213].7 AW (Kiribati)¸ above n 1, at [50].8 At [51] – [61].9 At [62] – [69].(d) Climate-change impacts and adaptation measures in Kiribati, in relationto which it recorded, among other things, that:10There is no question that Kiribati is impacted by the adverse effectsof climate-change, which exacerbates pre-existing development-related risks to the population's well-being. This does not mean, however, that no meaningful action to effectivelyaddress climate-change-related risks has occurred. Countryinformation establishes that the successive governments of Kiribatiare acutely aware of the risks and are taking a range of short, mediumand long-term actions to ameliorate risks to the population throughinterventions at the legislative, policy and operational levels.[24] In a section headed "Application to the facts", the Tribunal recorded constraintson AW's ability to obtain and adduce relevant evidence as follows;[86] Due to the appellant's incarceration, he has faced constraints on hisability to obtain up-to-date information on key matters, such as the physicalcondition of his land, or the willingness and ability of members of his extendedfamily to provide him with support in Kiribati. These particular difficultiesfaced by the appellant are compounded by structural communicationconstraints. As noted in the 2022 UN Country Assessment at p31:Kiribati remains one of the least connected countries in the world, wheremuch of the population either has no access to Information andCommunication Technologies (ICT) or, even if it lived within range of theexisting, often unreliable networks, is unable to afford the service. Untilrecently, about 40% of the population relied entirely on public access(radio, satellite-based telecentres). In 2017, Internet users only represented15% of the population. Rapid growth has situated household Internet accessat 48% in 2018.[87] While mindful of the appellant's overarching statutory responsibilityto establish his claim, the Tribunal has, to the extent possible, made allowancefor his inability to make relevant inquiries.Tribunal findings in relation to AW's situation under Refugee Convention[25] The Tribunal noted that AW had not been made aware of any specific threat tohim from the family of the victim and found that there was no basis to conclude that,should AW make any concerns known to the Police in Kiribati, protection would bedenied to him or would be ineffective such that the risk to AW would be at the realchance level.11 Accordingly, the Tribunal did not accept AW's first ground of appeal.10 At [70] – [85], in particular [70] and [78]11 At [88].[26] AW does not challenge that aspect of the Tribunal's decision.[27] As to AW's risk of impoverishment, the Tribunal noted that the RefugeeConvention was not designed to deal with every ill that plagued the world but acceptedthat breaches of rights under the International Covenant on Economic, Social andCultural Rights (ICESCR):12 are capable of founding valid claims for refugee status, with assessmentdriven by consideration as to whether the claimant would be denied the coreminimum content of the relevant socio-economic rights engaged by the claimon a discriminatory basis.[28] The Tribunal did not accept, however, the submissions of AW's counsel thatAW would be unlawfully discriminated against and deprived by law of the ability towork because of a compulsory retirement age of 55 in Kiribati. Nor did it accept thatAW would be without any means to maintain even a subsistence lifestyle. TheTribunal accepted that AW had been absent from Kiribati for many years and wasestranged from his extended family. It also accepted AW's evidence that he did notbelieve that such support would not be forthcoming. However, it stated that this hadnot been established and stated:13While it may be that members of the appellant's extended family will not lookfavourably on him, and their ability to provide support may well itself belimited, there is no evidence before the Tribunal to establish that he will not[be] able to count on it, to the extent that he needs it, if the alternative wouldbe to leave him in a state of destitution.[29] The Tribunal said it could not be assumed that AW would be shut out oftraditional social protection mechanisms. It also did not accept that the imposition ofa compulsory retirement age of 55 was discriminatory and noted that it was not thecase that AW would be prevented from working at all given that formal employmentcomprised only 20 per cent of employment in Kiribati.14 The Tribunal stated:15The compulsory age of retirement is not a special regime but rather a generallyapplicable and non-discriminatory socioeconomic policy of a type which wasnever intended to be regarded as cruel, inhuman or degrading treatment,12 At [89].13 At [92].14 At [92] – [95]15 At [96].whether this be as an element of 'being persecuted' or as a stand-alone aspectunder the Tribunal's protected person jurisdiction.[30] With respect to the risk posed by climate change, the Tribunal noted that nospecial rules applied to cases of this kind, that the ordinary standard of risk applied,that claimants did not need "to establish any 'super-heated' risk over and above thatof the general population" and that it was irrelevant that a claimant's position mightbe shared by many other people. It stated:16What is critical is whether the predicament is one to which the RefugeeConvention can, on the application of ordinary principles, respond to.[31] The Tribunal accepted that AW would, in Kiribati, be exposed to the adverseeffects of climate change. It also accepted AW's evidence that, at the time he leftKiribati in 2008, his land was already suffering from erosion, and he genuinely fearedthat he would be unable to use it to sustain himself. However, while the Tribunalaccepted that AW's land would not have been immune from erosion in the interveningyears, there was no direct evidence to establish that the land would have been erodedto the point of no utility. Accordingly, the Tribunal held there was no sufficientevidential basis for it to infer that the land had passed the point of habitability or wasnearing that threshold.17[32] The Tribunal summarised the risks of climate change to AW as follows:[128] While giving full weight to the expected upward trajectory of adverseclimate change impacts on Kiribati in the coming years, there is no sufficientlycompelling evidence before the Tribunal to establish that existing and futureclimate change adaptation and disaster risk reduction measures by thesuccessive governments in Kiribati, acting in cooperation with theinternational community, international organisations and civil society andalongside ongoing sustainable development projects and programming, willnot reduce the risk that the appellant's international human rights will bebreached (whether including a right to life with dignity or not), to below thereal chance standard.[33] The Tribunal found that AW's predicament did not amount to "beingpersecuted" as set out in DS (Iran) and held that, for these reasons, AW did not have awell-founded fear of being persecuted in Kiribati. In the light of that finding, the16 At [99].17 At [117].Tribunal concluded that it was not necessary to address the issue of whether there wasa reason under the Refugee Convention for any such persecution.18Tribunal's findings in relation to Convention Against Torture[34] The Tribunal held that, for the same reasons given in relation to the claim underthe Refugee Convention, AW was not at risk of being subjected to severe mental orphysical pain or suffering for any of the prescribed purposes with any of the prescribedinvolvement of a public official. Accordingly, AW was not recognised as a protectedperson under the Convention Against Torture.[35] AW does not challenge that aspect of the Tribunal's decision.Tribunal's findings in relation to ICCPR[36] The Tribunal found, in the light of the information as a whole, that it had notbeen established that Kiribati had failed, or would fail, to take steps to protect the livesof its citizens from known environmental hazards such that AW would be in dangerof being arbitrarily deprived of his life.19 The Tribunal further found that there was noevidence before it to establish that AW belonged to a section of the Kiribati populationin respect of which the Government of Kiribati had implemented policy measures orfailed to discharge positive obligations in response to past natural disasters amountingto cruel treatment.20 Accordingly, it held that AW was not in danger of being arbitrarilydeprived of life or subjected to cruel treatment and was not a recognised protectedperson in New Zealand under the ICCPR.21Submissions of counsel[37] Mr Allan submits that it is in the interests of justice to grant leave to appealbecause it is arguable that the Tribunal made three errors of law (as set out at [5] and[6] above) that are of general and public importance. More generally, Mr Allansubmits that there is a lack of legal certainty about whether refugee claims based on18 At [129] – [131].19 At [139].20 At [140].21 At [144].socio-economic deprivation and climate change should more properly be consideredunder the separate humanitarian jurisdiction of the IPT. Mr Allan also refers to theHigh Court's decision in Teitiota v Chief Executive of the Ministry of BusinessInnovation and Employment.22 He notes that, when declining leave to appeal in thatdecision, Priestly J had observed that, given the complex inter-relationship betweennatural disasters, environmental degradation and human vulnerability, sometimes atenable pathway to international protection under the Refugee Convention can result.Mr Allan notes that the Court of Appeal did not comment on that aspect of Priestly J'sdecision when it also declined leave to appeal.23 He submits that there should beclarity on the circumstances where such a pathway may arise.[38] It appears that the specific grounds of appeal may have been advanced for thepurpose of seeking appellate level consideration of those broader questions.[39] In response, counsel for the Crown, Ms Perera and Ms Ewing, submit that thelaw regarding the relevance of climate change and socio-economic breaches to thedetermination of refugee status has been settled by the decisions of the High Court andCourt of Appeal in Teitiota and by the Tribunal's decision in BG (Fiji) and had beencorrectly applied by the Tribunal in this case. Crown counsel submit that the Tribunalcorrectly understood that denial of socio-economic rights can found valid claims forrefugee status but, on the facts of this case, had correctly held that AW could notestablish that a denial of his socio-economic rights would support a finding that AWhad been "persecuted". It had also found that AW could not establish that the risksposed by climate change to AW amounted to persecution.Analysis[40] AW's application for leave to appeal fails to take into account the clearguidance provided by the Court of Appeal in Teitiota on the assessment of applicationsfor refugee status based on the impacts of climate change.22 Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC3125, [2014] NZAR 162 at [27].23 Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2014] NZCA173, [2014] NZAR 688.[41] Teitiota also concerned an applicant from Kiribati seeking refugee status basedon the impacts of climate change. In its decision, the Court of Appeal stated:24The short point is that the effects of climate change on Mr Teitiota, and indeedon the population of Kiribati generally, do not bring him within the [Refugee]Convention. That is the position even if the most sympathetic, ambulatoryapproach permissible to interpreting the Convention is taken. The Conventionis quite simply not the solution to Kiribati's problem.[42] The Court of Appeal went on to find that:(a) In Mr Teitiota's case, there was no suggestion of persecution, let aloneon any of the five grounds set out in art 1A(2) of the RefugeeConvention;25 and(b) There were two confirmations that climate change was generallyhaving the same effect on all the people of Kiribati.26[43] In summary, the Court of Appeal found that, even on a generous approach tothe interpretation of the Refugee Convention, the effects of climate change that applyto the population of Kiribati generally do not bring an applicant within the RefugeeConvention.[44] Given the encompassing scope of that finding, it is clear that there would haveto have been some significant change in circumstances in Kiribati since the Court ofAppeal's decision, or something significant and particular to AW's circumstances andrelevant to the grounds in art 1A(2) of the Refugee Convention, before AW could haveany realistic prospect of succeeding with a claim to refugee status based on the effectsof climate change in Kiribati. As I said to Mr Allan at the hearing, there is nothing inthe case advanced on behalf of AW that brings him anywhere close to establishing avalid claim to refugee status, notwithstanding the socio-economic disadvantages thatAW may face if returned to Kiribati.24 At [21].25 At [22].26 At [23].[45] Taken at its strongest, AW's evidence about his own circumstances is that hemay be unable to obtain paid employment because of the mandatory retirement age inKiribati, that the land on which he used to live on South Tarawa may have eroded andmay not be habitable, and that he may not be able to rely on family members or widercommunity support. Even if all those matters were proven, that would not establishthat AW is a refugee.[46] I doubt aspects of AW's evidence. In particular, I doubt that the mandatoryretirement age extends beyond the public sector, in which it appears AW has neverworked. However, even assuming that all of the contentions advanced by or on behalfof AW were factually correct, they would not establish that AW is at risk of sufferingpersecution based on race, religion, nationality, membership of a particular socialgroup or political opinion – that is, on any of the five grounds in art 1A of the RefugeeConvention on which a claim for refugee status must be based.[47] As described above, the Tribunal assessed AW's appeal against the refusal ofrefugee status principally on the basis of whether AW faced a risk of "persecution" ina factual sense. Having found that he did not face such a risk, the Tribunal found itunnecessary to consider whether there was a reason under the Refugee Convention forany such persecution.[48] Given the Court of Appeal's decision in Teitiota¸ a more direct route toassessing AW's claim for refugee status would have been to consider whether there isanything in AW's circumstances that takes him outside the scope of the Court ofAppeal's finding that the effects of climate change on the population of Kiribati do notof themselves bring an applicant for refugee status within the scope of the RefugeeConvention.[49] Plainly there is not. In most respects, AW's situation is no different from thatof any other person in Kiribati of a similar age whose land has been affected by sea-level rise and erosion. The one distinguishing consideration in AW's case is thepossible social opprobrium and isolation he may face because of his offending inNew Zealand. That does not amount to persecution, either generally or in a RefugeeConvention sense.[50] For these reasons, the Tribunal's findings of fact that were adverse to AW'sinterests could have no consequences for the outcome of AW's right to refugee status.Those findings, which related principally to whether AW's land remains habitable andwhether AW will be able to earn a living because of the mandatory retirement age inKiribati, are not relevant to whether AW faces persecution in a sense contemplated bythe Refugee Convention. Accordingly, whether or not the Tribunal had an obligationto give notice of an intention to make such adverse findings of fact could have nobearing on the result of AW's appeal.[51] In addition, the Tribunal was under no natural justice obligation to give noticeof an intention to make such adverse findings of fact before making its decision. It isclear from s 226 of the Immigration Act that AW bears the responsibility ofestablishing his claim and of ensuring that all evidence he wished to have consideredwas provided to the Tribunal. That statutory responsibility subsists, whatever AW'scircumstances. The Tribunal recognised the constraints on AW and took those intoconsideration. That does not alter the fact, however, that it is for AW to present theevidence and for the Tribunal to make its decision on the basis of the evidencepresented.[52] AW's situation is no different from that of the appellant in BV v Immigrationand Protection Tribunal whose similar claim for a breach of natural justice wasrejected by the Court of Appeal.27 AW was represented by counsel. He based his caseon alleged socio-economic deprivation and the effects of climate change. He knewthat those questions would be a focus of the Tribunal's consideration, that the Tribunalwould be likely to make factual findings on those questions and that those findingscould be adverse to his interests. In addition, he was able, through his counsel, to filefurther submissions and evidence after the hearing. No issue of unfairness arises.[53] I am satisfied, therefore, that this ground of appeal is not seriously arguable.It does not raise questions of general or public importance. There is no other reasonwhy that question ought to be submitted to the High Court.27 BV v Immigration and Protection Tribunal [2014] NZCA 594; [2015] NZAR 139 at [17] – [18].[54] This disposes of the first ground of appeal as that ground was modified at thehearing of the application for leave to appeal. For completeness, I note that the firstground of appeal as set out in Mr Allan's written submissions is also not seriouslyarguable. As Crown counsel observed, Mr Allan's criticisms of the Tribunal'sconsideration of AW's circumstances related principally to the weight the Tribunalgave to the evidence before it. The Tribunal's application of the law to the facts wasorthodox and consistent with its approach in BG (Fiji). There is no arguable error oflaw.[55] As to AW's second and third grounds of appeal, the questions before theTribunal on AW's appeal were not whether the Refugee Convention and art 6 of theICCPR should extend to claims based on socio-economic deprivation and climatechange. Rather, the questions where whether AW's circumstances, as found by theTribunal, established that if AW was returned to Kiribati he would be:(a) at risk of persecution on any of the grounds in art 1A of the RefugeeConvention; or(b) in danger of being arbitrarily deprived of life or subjected to crueltreatment.[56] The Tribunal answered both questions directly and in accordance with theRefugee Convention, the ICCPR and the Immigration Act. In the circumstances ofthis case, it was unnecessary for the Tribunal to consider the general questions ofwhether the Refugee Convention and art 6 of the ICCPR should extend to claims basedon socio-economic deprivation and climate change.[57] For these reasons, I am satisfied that the second and third grounds of appealare not seriously arguable. They too do not raise questions of general or publicimportance. There is no other reason why these questions ought to be submitted to theHigh Court.[58] As to the first of the more general considerations raised by Mr Allan, theTribunal's jurisdiction for determining appeals against deportation on humanitariangrounds are set out in s 207 of the Immigration Act. Whether a particular appellantcomes within those grounds will be for the Tribunal to determine based on the facts ofthat case. It is not appropriate on an appeal for the Court to rule generally that claimsfor refugee status based on socio-economic deprivation and climate change should beconsidered under that section rather than under ss 125 and 129.[59] What ought to have been apparent to AW and his counsel, however, is that,following the Court of Appeal's decision in Teitiota, the prospects of succeeding witha claim for refugee status based on the effects of climate change on people in Kiribati,or another country similarly affected by climate change, are not strong.[60] As the Tribunal said in its decision, the Refugee Convention was not designedto deal with every ill that plagues the world. As I said to Mr Allan at the hearing, theConvention was designed to ensure the protection of people who are refugees as thatterm is described in art 1A of the Convention. Whatever other difficulties people mayface and whatever other reasons people may have for not wanting to return to theircountry of citizenship, the Refugee Convention is not an available avenue where anapplicant is palpably not a refugee as described in art 1A of that Convention. It iscertainly not an avenue available to AW to avoid deportation.[61] As to Priestly J's observation in Teitiota about a tenable pathway from naturaldisasters, environmental degradation and human vulnerability to protection under theRefugee Convention, Priestly J himself gave examples of how such a pathway mightarise when he said, immediately after the sentence highlighted by Mr Allan:28Environmental issues sometimes lead to armed conflict. There may beensuing violence towards or direct repression of an entire section of thepopulation. Humanitarian relief can become politicised, particularly insituations where some group inside a disadvantaged country is the target ofdirect discrimination.[62] In other words, it might be that, in addition to the environmental issues a personfaces, there are other factors which, in combination with those environmental issues,amount to persecution on grounds described in art 1A of the Convention; being race,28 Teitiota v Chief Executive of the Ministry of Business Innovation and Employment, above n 22,at [27].religion, nationality, membership of a particular social group or political opinion.However, where, as in AW's case, there are no such additional Convention-relatedconsiderations, it serves little purpose to speculate on how such a pathway might beestablished.Result[63] For all these reasons, I dismiss AW's application for leave to appeal.____________________G J van Bohemen J