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High Court Cases
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 -
- Eligibility
for a benefit is denied to persons unlawfully in New Zealand (s
74(1)(a)) and to persons lawfully in New Zealand by virtue of one of
the temporary permits referred to in s 74A(1)(b), but a refugee may be
granted an emergency or special benefit if he is "lawfully present in
New Zealand".
- Under
sub-paragraphs (d) and (e) a person who has refugee status and a person
applying for a residence permit under the Immigration Act who is
compelled to remain in New Zealand through some unforeseen
circumstances are made exceptions to the general requirement to be
lawfully present in New Zealand.
- "Lawfully
present" is not defined in the Social Security Act but s 4 of the
Immigration Act is available to provide the relevant definition.
Section 74A links in its terms directly and indirectly with the
Immigration Act, relevantly by reference in para (1)(b) to permits
granted under the Immigration Act as a criteria for consideration for
an emergency or special benefit.
- Section
4 of the Immigration Act requires a non-New Zealand citizen to hold a
permit granted under that Act (unless exempt from the requirement to
hold a permit). Otherwise a person in New Zealand without a
permit (who is not exempt) is deemed by subsection (2) to be in New
Zealand unlawfully.
- That
the deeming provision in s 4(2) is expressed to be "for the purposes of
this Act", does not exclude its being adopted for the purposes of s 74A
of the Social Security Act when that section links to the Immigration
Act making the definition in s 4 apposite and meaningful to the
interpretation of s 74A.
- A
permit granted under s 4 of the Immigration Act is the gateway to
obtaining lawful presence in New Zealand and hence eligibility for
consideration for an emergency benefit by a refugee claimant who is
required by s 74A(1)(c) to be lawfully present in New Zealand.
- While s
129X(1), inserted into the Immigration Act in 1999 in Part VIA (which
provides a statutory basis for the system by which New Zealand ensures
it meets its obligations under the Refugee Convention - the Convention
Relating to the Status of Refugees 1951), prohibits removal or
deportation of a refugee or refugee claimant, it does not render their
presence in New Zealand lawful. That must be achieved in terms of s 4.
Section 129X(1) cannot be interpreted as in effect changing the
criteria for eligibility for emergency and special benefits under s 74A
of the Social Security Act for one only of the categories of persons
covered by s 129X(1) namely refugee claimants, but not for the other,
namely persons recognised as refugees. By s 74(1)(d) a person who has
refugee status in New Zealand may be granted a benefit without meeting
the "lawfully present" requirement, and without reliance on s 129X and
the interpretation the appellant argues it should be given. But
since the 1993 amendment to the Social Security Act refugee claimants
have not enjoyed a like exemption from the "lawfully present"
requirement. A clear intention would need to have been expressed by the
legislature for s 129X to achieve that result. Section 129X(1)
deals with a different and broader issue than eligibility for benefits
under the Social Security Act. It incorporates into domestic law the
obligation Contracting States must recognise under the Refugee
Convention, that refugee claimants may not be removed or deported.
- The
interpretation of s 74A(1) urged by the appellant would render all
refugee claimants eligible for emergency benefits regardless of how
they came to be in New Zealand. That was the position under s 74A from
1991 to 1993 if the refugee claimant was also applying for a residence
permits under s 17(2) of the Immigration Act. By the 1993
amendment, eligibility was narrowed by the addition of the requirement
in respect of refugee claimants (as distinct from those with refugee
status) that they be "lawfully present in New Zealand". The requirement
of the statute is clear and it is unnecessary to look further to
understand the intention of the legislature. But even if resort
were made to Hansard as suggested by counsel for the appellant, it is
clear that the essential focus of the 1993 amendment was as stated to -
... 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.
- Counsel
for the appellant referred to passages of the Court of Appeal judgment
in Attorney-General v Refugee
Council of New Zealand Inc [2003] 2 NZLR 577 in support of his
contentions. But the Court of Appeal, dealing with the interpretation
of s 128(5) Immigration Act rejected that -
... 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).
- Following
the hearing, counsel for the Crown referred to the Court the judgment
of Paterson J in Zaoui v
Attorney-General (High Court Auckland, CIV2004-404-2309, 16 July
2004) particularly for the observation at para [27] -
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.
- Finally,
I return to the passage from the judgment of Simon Brown L J referred
to by counsel for the appellant and cited in para [15] above. If the
inability of refugee claimants who do not hold a permit under the
Immigration Act entitling them lawfully to be in New Zealand, places
them at risk of utter destitution, then that is a matter for
Parliament. But by s 74A of the Social Security Act, which is primary
legislation not subordinate legislation as considered by the Court in R v Secretary of State for Social Security,
Parliament has declared its intention that welfare benefits should be
made available only to persons lawfully in New Zealand.
[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)