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Rajabian v Chief Executive of the Department of Work and Income New Zealand


High Court Auckland CIV-2004-485-671

9 August 2004; 12 October 2004
Potter J
  
Social security - emergency benefit - eligibility depending on whether person lawfully present in New Zealand - meaning of lawfully present - Social Security Act 1964 s 74A(1)(a) and (c) - Immigration Act ss 4 and 129X - Refugee Convention Articles 23, 24 and 31

The Social Security Act 1964, s 74A(1)(c) provides that a person lawfully present in New Zealand who is awaiting the outcome of his or her application for refugee status in New Zealand may be granted an emergency benefit. By way of contrast, s 74A(1)(d) provides that a person unlawfully present in New Zealand but who has refugee status in New Zealand is entitled to receive a benefit. The Immigration Act 1987, s 4 provides that a person who is in New Zealand and who does not hold a permit is deemed for the purposes of the Immigration Act 1987 to be in New Zealand unlawfully.  As the Social Security Act does not define "lawfully present" the issue in this appeal by way of case stated was whether the Immigration Act provision assisted the interpretation of the Social Security Act.

The appellant arrived in New Zealand on 21 February 2003 on false travel documents which he had destroyed. On 3 March 2003 he applied for refugee status and a work permit. The work permit application was declined as the appellant was unable to provide formal verification of his identity. On 7 April 2003 he applied for an emergency benefit. That application was declined on 28 April 2003 on the ground that he was unlawfully present in New Zealand and therefore statutorily ineligible for an emergency benefit by virtue of s 74A(1)(a) of the Social Security Act 1964. On 11 June 2003, when the appellant was able to provide a birth certificate from his home country, he was granted a work permit. The Social Security Appeal Authority determined that the Chief Executive of the Department of Work and Income New Zealand was correct in determining that at the time of the application on 7 April 2003 the appellant was not eligible for an emergency benefit. Accordingly his appeal from the decision of the Chief Executive, which was upheld by a Benefits Review Committee, was dismissed. The Authority nevertheless stated two questions of law for the opinion of the High Court pursuant to s 12Q of the Social Security Act 1964 and Part XI of the High Court Rules. The first question was whether the Authority erred in law in determining that until a person holds a permit to be in New Zealand under the Immigration Act 1987, he is unlawfully in New Zealand for the purposes of the Social Security Act 1964 and cannot be granted a benefit. Second, whether the Authority erred in law by finding that for the purposes of Articles 23, 24 and 31 of the Refugee Convention a refugee who arrives in or remains in a territory without authorisation is unlawfully present in the host country.

Held:

1   While "lawfully present" is not defined in the Social Security Act 1964 the provisions of s 4 of the Immigration Act 1987 are available to provide the relevant definition. A permit granted under s 4 of that Act is the gateway to obtaining lawful presence in New Zealand and hence eligibility for consideration for an emergency benefit by a refugee claimant (see para [30]).

2   While s 129X(1) of the Immigration Act 1987 prohibits the removal or deportation of a refugee status claimant pending determination of the claim to refugee status, it does not render the presence of the claimant in New Zealand lawful. That must be achieved in terms of s 4 of the Immigration Act 1987 (see para [30]).

3   While s 74A(1)(d) of the Social Security Act provides that an emergency benefit may be granted to a person who actually has refugee status in New Zealand whether or not that person meets the "lawfully present" requirement, the 1993 amendment to the Social Security Act 1964 removed like exemption from refugee status claimants. Section 129X of the Immigration Act 1987 did not achieve the result of overcoming the express terms of s 74A(1) of the Social Security Act 1964.

4   If refugee status claimants who do not hold a permit under the Immigration Act 1987 are at risk of utter destitution, then that is a matter for parliament (see para [30]).

R v Secretary of State for Social Security; Ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275; [1996] 4 All ER 385 (CA) distingished.

5   While Articles 23 and 24 of the Refugee Convention specifically recognise the obligation on Contracting States to provide equal treatment with nationals, that obligation is in respect of refugees lawfully present, which status is not equated with the separate obligation on Contracting States under Article 33 not to remove or deport refugees or refugee status claimants (see para [35]).

Both questions of law stated by the Social Security Appeal Authority answered "No".

Other cases mentioned in judgment

Attorney-General v Refugee Council of New Zealand Inc
[2003] 2 NZLR 577 (CA)

Zaoui v Attorney-General (High Court Auckland, CIV2004-404-2309, 16 July 2004)

Counsel
D J Ryken  for the appellant
J S McHerron for the respondent

POTTER J

Case stated

[1] Two questions of law are stated by the Social Security Appeal Authority for the opinion of this Court pursuant to s 124 of the Social Security Act 1964 and Part XI of the High Court Rules arising from a decision of the Social Security Appeal Authority ("the Authority") dated 13 November 2003 ("the decision"). They are -

1. Did the Authority err in law in determining that until a person holds a permit to be in New Zealand or is exempt under the Immigration Act 1987 from holding a permit, he is unlawfully in New Zealand and cannot be granted a benefit under the Social Security Act 1964 unless he comes within the exceptions contained in s 74A(1)(c), (d) or (e).

2. Did the Authority err in law by finding Articles 23, 24 and 31 of the Convention on the Status of Refugees recognise that when a refugee arrives in or remains in a territory without authorisation their presence is unlawful and that authorisation to remain in a particular territory comes with seeking and obtaining authorisation to remain in the host country under that host country's immigration rules?

Amendments to case stated

[2] With the agreement of the Authority the following amendments to the case stated are made pursuant to r 724G(2) of the High Court Rules -

a) The final sentence of para 6 is amended to read -

Exceptions to the rule are contained in s 74A(1)(c) (d) and (e).

b) In para 14 the final words are amended to read -

... contained in s 74A(1)(d) or (e).

c) The final words of the first question to be answered by the High Court are amended to read -

... exceptions contained in s 74A(1)(d) or (e).

(The first question as set forth above includes this amendment).

Factual background

[3] Summarised from the facts of the case determined or accepted by the Authority, the relevant factual background is as follows.

[4] The appellant is a single man aged 18 years at the time of the decision. He arrived in New Zealand on 21 February 2003 on false travel documents which he had destroyed, as he admitted when applying for an Emergency Benefit.

[5] On 3 March 2003 the appellant applied for refugee status and a work permit. His application for a work permit was declined as he was unable to provide formal
verification of his identity.

[6] On 7 April 2003 the appellant applied for an Emergency Benefit. That application was declined on 28 April 2003.

[7] On 11 June 2003 when the appellant was able to provide a birth certificate from Iran, he was granted a work permit.

[8] The Authority decided that the Chief Executive of the Department of Work and Income New Zealand ("Chief Executive") was correct in determining that at the time of his application on 7 April 2003 the appellant was not eligible for an Emergency Benefit. Accordingly his appeal from the decision of the Chief Executive, which was upheld by a Benefits Review Committee, was dismissed.

Question 1

Section 74A Social Security Act

[9] Question 1 turns on the interpretation of s 74A of the Social Security Act 1964 which provides -

Persons unlawfully resident or present in New Zealand -

(1) A person who is -

(a) Unlawfully resident or present in New Zealand ;or

(b) Lawfully resident or present in New Zealand but only by virtue of -

(i) A visitor's permit; or

(ia) A limited purpose permit;

(ii) A temporary work permit; or

(iii) A permit to be in New Zealand for the purposes of study at a New Zealand school or university or other tertiary educational establishment -

shall not be entitled to receive a benefit ..., but the Chief Executive may grant an emergency benefit under section 61 of this Act or a special benefit under section 61G of this Act to any such person if the Chief Executive is satisfied that the person ... is either-

(c) A person lawfully present in New Zealand who is awaiting the outcome of his or her application for refugee status in New Zealand; or

(d) A person who has refugee status in New Zealand; or

(e) A person applying for a residence permit under the Immigration Act 1987 who is compelled to remain in New Zealand through some unforeseen circumstances.

(Subsections (2) (3) (4) and (5) of s 74A are not relevant to the issue before the Court).

[10] Thus a person unlawfully resident or present in New Zealand, or lawfully resident or present pursuant to a temporary permit, is not entitled to receive a benefit under the Social Security Act, but may be granted an emergency or special benefit at the discretion of the Chief Executive if the Chief Executive is satisfied that the applicant meets the criteria in paras (c) (d) or (e) of s 74A.

When is a person lawfully resident or present in New Zealand?

[11] There is no definition in the Social Security Act of "unlawfully resident or present in New Zealand" or "lawfully present in New Zealand".

[12] Must a person in the position of the appellant who has applied for refugee status in New Zealand hold a permit under the Immigration Act 1987 before he can meet the requirement to be lawfully present in New Zealand?

[13] The appellant referred to s 129X of the Immigration Act and submitted that this provision creates in respect of a refugee claimant, lawful presence in New Zealand. Section 129X provides -

Prohibition on removal or deportation of refugee or refugee status claimant -

(1) No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.

[14] The appellant argued that as the provisions of Article 32.1 and Article 33.2 of the Refugee Convention are not applicable in his case (these referring to situations where the refugee status claimant is a security risk or has committed a serious crime) then as a refugee status claimant who may not be removed or deported, it must follow that his presence in New Zealand is lawful.

[15] Otherwise, submitted the appellant, the very situation pertains for refugee status claimants in New Zealand as was described by Simon Brown LJ in R v Secretary of State for Social Security, ex parte Joint Consul for the Welfare of Immigrants [1996] 4 All ER (CA) 385 at 402, in relation to asylum seekers -

Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need to either abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs.

[16] The Crown also turned to the Immigration Act for the purpose of determining when a person is lawfully resident or present in New Zealand for the purposes of s 74A.

[17] Section 4 of the Immigration Act states -

Requirement to hold permit, or exemption, to be in New Zealand -

(1) A person who is not a New Zealand citizen may be in New Zealand
only if that person is -

(a) The holder of a permit granted under this Act; or

(b) Exempt under this Act from the requirement to hold a permit.

(2) Any person who is in New Zealand in contravention of subsection (1) of this section is deemed for the purposes of this Act to be in New Zealand unlawfully.

(3) The fact that an application for a permit has been made by or for any
person does not -

(a) Render the person's presence in New Zealand lawful; or

(b) Give the person a right to remain in New Zealand while the application is considered; or

(c) Give the person a right to apply for or be granted any other permit pending determination of the application; or

(d) Inhibit removal procedures under this Act.

[18] Under s 4 a person who is not a New Zealand citizen is deemed to be in New Zealand unlawfully unless the person holds a permit granted under the Immigration Act or is exempt from the requirement to hold such a permit. Thus, lawful presence depends on holding a permit issued under the Immigration Act.

[19] Mr McHerron contended for the Crown that because there are links both direct and indirect between s 74A of the Social Security Act and s 4 of the Immigration Act, s 4 is relevant to determine for the purposes of s 74A whether a person is lawfully resident or present in New Zealand:

Pursuant to s 74A(1)(b) a person can be lawfully resident or present in New Zealand for the purposes of s 74A by virtue of the four temporary permits listed in that paragraph, they all being permits issued under the Immigration Act (an indirect link).

Under sub-paragraph (e) there is an exemption from the requirements for lawful residence or presence for a person applying for a residence permit under the Immigration Act who is compelled to remain in New Zealand through some unforeseen circumstances (a direct link).

[20]
Mr McHerron noted that as s 74A(1)(b) stood before the Social Security Amendment Act 1993 (No 3) there was a further direct link in that eligibility for a benefit under that sub-paragraph required the Director-General to be satisfied as a pre-requisite, that the person was applying for a residence permit under s 17(2) of the Immigration Act.

[21] Accordingly, counsel submitted, because lawful residence or presence in New Zealand requires a non-New Zealand citizen to hold a permit under the Immigration Act (unless exempt), the appellant was not eligible to be considered for a benefit until 11 June 2003 when he was granted a work permit, and the Chief Executive was correct to decline him an emergency benefit on 28 April 2003.

[22] In the Crown's submission, s 129X of the Immigration Act does not convert unlawful presence into lawful presence. Under s 4 a refugee status claimant is deemed to be in New Zealand unlawfully unless he or she holds a permit or is exempt from the requirement to hold a permit. Section 129X prohibits removal or deportation of a refugee or refugee status claimant, and thereby recognises New Zealand's international obligations in relation to refugees, but does not convert a refugee claimant's presence deemed unlawful in terms of s 4, to lawful presence.

[23] Mr Ryken for the appellant argued that Parliament did not intend s 4 to operate in the way contended by the Crown in respect of the category of refugee claimant into which the appellant falls, that is a refugee claimant who has been released into the community but is not an "overstayer". He submitted that the intent and purpose of the 1993 amendments to s 74A, which limited the categories of immigrants entitled to benefits, was to exclude overstayers from eligibility.

[24] Prior to amendment in 1993, s 74A (which was inserted by the Social Security Amendment Act 1991) provided -

(1) A person who is -

(a) Unlawfully resident or present in New Zealand; or

(b) Lawfully resident or present in New Zealand but only by virtue of -

(i) A visitor's permit; or

(ii) A temporary work permit; or

(iii) A permit to be in New Zealand for the purposes of study at a New Zealand school or university or other tertiary educational establishment -

shall not be entitled to receive a benefit under this Part of this Act, but the Director-General may grant an emergency benefit under section 61 of this Act or a special benefit under section 61G of this Act to any such person if the Director-General is satisfied that the person is in the process of applying for a residence permit under section 17(2) of the Immigration Act 1987, and is either -

(c) A person applying for refugee status in New Zealand; or

(d) Compelled to remain in New Zealand through some other unforeseen circumstance.

[25] Thus prior to 1 April 1994 when the amendment to para (c) came into effect (the other amendments having come into effect on 30 June 1993), a person who had applied for a residence permit and refugee status, was entitled to be considered for an emergency benefit. Lawful presence was not a criteria.

[26] The "lawfully present" requirement in the new para (c) was added by the 1993 amendment so that a refugee claimant was required also to be "lawfully present in New Zealand".

[27] Mr Ryken referred to the address of the Hon Jenny Shipley, the then Minister of Social Welfare, on introducing the Bill to the House (Hansard at 14552) -

The amendment to s 74A in clause 17 deals with changes to allow emergency benefit payments to be paid to lawfully resident refugee applicants. Under current legislation people who have applied for refugee status in New Zealand qualify for an emergency benefit. That applies equally to people who are both lawfully and unlawfully in the country. This Bill contains a change that will allow the payment of emergency assistance to those people who are lawfully in the country and who have applied for refugee status.
 

People who apply for refugee status fall into two main groups: Those who apply for refugee status while in New Zealand on a temporary permit and while their temporary permit is still current, and those who apply for refugee status once their temporary permit has expired.

It is the second group we are concerned about. This group of people,
commonly referred to as overstayers, are unlawfully in the country when they apply for refugee status. Why should New Zealand taxpayers support people who are openly in New Zealand unlawfully? Of course they should not. Social Security legislation is clear that the assistance is available only to people who are lawfully in the country, and on the whole, those who hold permanent residential status.

Changing current legislation to pay emergency benefits to lawfully resident refugee applicants is consistent with this principle. This change is not inconsistent with New Zealand's international obligations under the Convention relating to the status of refugees. This Convention relates to refugees who are lawfully in any country.

[28] Mr Ryken submitted that Parliament's intention as stated by the Hon Jenny Shipley was clearly directed at overstayers, i.e. people who had been given a temporary permit which has expired and who then seek refugee status. While the amendment narrowed the scope of those eligible for benefits by introducing the "lawfully present" requirement, he submitted that it was not aimed at persons in what Mr Ryken described as a third group, those who have applied for refugee status but do not have, and have never had, a temporary permit. He submitted that there were only two classes of persons under consideration by Parliament, as indicated by the Minister introducing the Bill: those given a temporary permit who then claimed refugee status, and those who claimed refugee status having had a temporary permit which has expired. He contended that the appellant was in neither of those groups but in a third group, persons who have made application for refugee status (either upon or soon after entering New Zealand) but for one reason or another have been declined a temporary permit which, said Mr Ryken, could be the result either of delays or refusal by an immigration officer. In this category also are persons who are initially detained under s 128AA of the Immigration Act and (pursuant to the 2002 amendment to the Act) subsequently released from detention upon conditions, without temporary permits. They, like the appellant, cannot be removed or deported from New Zealand because of s 129X until their applications for refugee status are declined (except in situations where Article 32.1 or Article 33.2 of the Refugee Convention applies). This must, submitted Mr Ryken, create a situation where they are lawfully present in New Zealand. Parliament could not have intended by a measure directed to overstayers, to render persons in the third group without a means of subsistence while their applications for refugee status are processed.

[29] The Crown's response to this part of Mr Ryken's argument is that while somewhat clumsy, the meaning of s 74A of the Social Security Act is clear and it is unnecessary to have resort to Hansard to ascertain its meaning. Further, that while resort to Hansard shows that the 1993 amendments to s 74 were intended to exclude overstayers from eligibility for benefits, the legislation should not be interpreted to exclude other refugee claimants who are unlawfully in New Zealand. It is completely logical, in the Crown's submission, that a person in the appellant's situation should be excluded, he having entered New Zealand on false papers using a false identity and possibly having access in the initial stages to a permit available to the false identity he assumed, but applying for refugee status when that permit became unavailable to him, because either it expired or the false identity was uncovered.

Discussion and Conclusions on Question 1

[30] Generally I accept the Crown's submissions. My conclusion are -

... allow the payment of emergency assistance to those people who are lawfully in the country and who have applied for refugee status.

That focus and intent was carried forward into the 1993 amendment to s 74. The amendment is not referenced or limited to a category of persons unlawfully present because they have overstayed following the expiry of a temporary permit.
... s 129X has the effect of amending, pro tanto, s 128(5) by excepting refugee claimants from its terms (at para [9]).

Instead the Court adopted a temporal rather than a substantive limitation to accommodate s 129X in interpreting s 128(5).

Mr Zaoui is not in New Zealand lawfully unless he holds a permit granted under the Act or is exempt under the Act from the requirement to hold a permit.

This was stated to be the situation, even though Mr Zaoui has refugee status, which the Court recognised meant that he could not be removed from New Zealand unless Article 32.1 or Article 33.2 of the Refugee Convention allowed removal. The judgment was concerned with Mr Zaoui's detention under s 114O of the Immigration Act. I agree with Mr Ryken that the Zaoui case is distinguished from this case on its facts, but I do not accept his contention in further submissions that because the appellant, unlike Mr Zaoui, was in New Zealand outside detention he was therefore "permitted to be in New Zealand". As I have set out above the appellant was not "permitted to be in New Zealand" at the relevant date (7 April 2003) when he applied for an emergency benefit. At that date he did not hold a permit and he was therefore in New Zealand unlawfully. Thus while the factual situation before the Court in Zaoui was different, the principle stated in para [27] is applicable.

[31] In summary therefore I conclude that the Authority did not err in its interpretation of s 74A of the Social Security Act as it applied to the appellant.  The answer to question 1 is: "No".

Question 2

[32] In its judgment commencing at para [21] the Authority quoted Article 23 of the Refugee Convention -

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals (emphasis added)

Article 24 -

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters -

(a) ...


(b) Social Security (legal provisions in respect of employment
injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and other contingency which according to national laws or regulations is covered by a Social Security scheme), subject to the following limitations:

(i) ...

(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds in concerning allowances paid to persons who do nt fulfil the contribution conditions prescribed for an award of normal pension.

[33] The Authority also referred to Article 31 which provides in respect of refugees unlawfully in the country of refuge that the Contracting State shall not impose penalties on account of their illegal entry of presence provided they present themselves without delay to the authorities and show good cause for their illegal entry of presence.

[34]
Counsel for the appellant argued that as far as refugee claimants are concerned Articles 23, 24 and 31 are not predicated on the holding of an administrative immigration permit. Article 24 creates a general requirement to treat refugees and refugee applicants in the same way as nationals, i.e. with access to emergency benefits. His argument proceeded on the basis of his previous submission that the appellant in this case was in New Zealand lawfully notwithstanding that he did not hold a permit under the Immigration Act, which I have rejected.

[35]
It must be observed that Articles 23 and 24 specifically recognise that the obligation on Contracting States to provide equal treatment with nationals is in respect of refugees lawfully present, which status is not equated with the separate obligation on Contracting States recognised in s 129X of the Immigration Act, not to remove or deport refugees or refugee claimants.

[36] The Authority did not make any express findings in relation to Article 23 and Article 24, merely observing that further guidance could be gleaned from these Articles which recognise that the obligation by the host country to accord equal treatment to refugees arises in respect of refugees lawfully present.

[37] Article 31 of the Refugee Convention states that when a refugee arrives in or remains in a territory without authorisation the refugee's presence is unlawful, and authorisation requires presentation to the authorities of the Contracting State in whose jurisdiction the refugee is present, to have their status in the host country regularised.

[38] The Authority was correct in its finding at para [24] of its decision that -

In New Zealand a request for authorisation to remain in New Zealand is the process of applying for and obtaining a permit under the Immigration Act 1987.

[39] The answer to question two is accordingly, "No".

Result

[40] The answers to the two questions of law stated by the Authority for the opinion of this Court is in each case: "No".

Costs

[41] Wild J in a minute of 19 April 2004 determined that the proceeding was category one for costs purposes. However, I was advised that the appellant is on legal aid and accordingly no award of costs will be made.


Solicitors for the appellant: Ryken & Associates (Auckland)
Solicitors for the respondent: Crown Law Office (Wellington)