RefNZ News

Recent Developments in NZ Refugee Law


Last updated: 31 August 2010
 

RefNZ News provides a chronological summary of noteworthy news and developments in New Zealand refugee law. Use the Index below to link to summaries of interest.

The Index below contains 2010 News items.
Click here for 2009 News items
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Index

29 November 2010  Immigration Act 2009 to come into force at 2am

27 August 2010  NZ Supreme Court interprets Article 1F of the Refugee Convention

26 August 2010  34 Immigration New Zealand staff under investigation

24 August 2010  Immigration New Zealand begins fingerprinting refugee status claimants

9 August 2010  Government publishes four new Regulations to come into force at 2am on 29 November 2010

19 July 2010  International/humanitarian numbers to drop

12 July 2010  Seven Immigration New Zealand staff dismissed in 2010

7 July 2010  UK Supreme Court rejects "reasonable tolerability" test in refugee claims based on sexual orientation

7 July 2010  New Zealand involved in discussions on "regional refugee processing centre"

1 July 2010  MOU with Australia for checking fingerprint information to improve detection of fraudulent identity and immigration claims

28 June 2010  Immigration Act 2009 Commencement Order 2010

20 June 2010  World Refugee Day

16 June 2010  Human Rights Commission releases consultation document on the rights of refugees and asylum-seekers - closing date for submissions 1 August 2010

10 June 2010  Extra funding for refugee and migrant settlement assistance

4 May 2010  NZ Attorney-General leads discussion on extradition, refugee and domestic criminal proceedings involving allegations of genocide, crimes against humanity and war crimes

4 May 2010  Offshore immigration advisers must be licensed from today

9 April 2010  Australia suspends all new asylum claims by people from Sri Lanka and Afghanistan

7 April 2010  Court of Appeal decision addressing sentencing factors in identity fraud cases added to Case Search page of this website

29 March 2010  NZLS to establish Immigration and Refugee Law Committee

16 March 2010  Two Court decisions added to Case Search page of this website

12 March 2010  New Zealand's Fifth Periodic Report to be presented to UN Human Rights Committee

10 March 2010  Supreme Court grants leave to appeal in relation to Court of Appeal ruling that Tamil from Sri Lanka not excluded from Refugee Convention

4 February 2010  Foreign Minister denies backflip on Sri Lankans from Oceanic Viking

1 February 2010  Aleinikoff becomes UN Deputy High Commissioner for Refugees

20 January 2010  Thirteen Sri Lankans from Oceanic Viking provisionally accepted by New Zealand


29 November 2010 At 2am on 29 November 2010 the principal provisions of the Immigration Act 2009 are to come into force. The only major provisions of the Act will will still await a commencement date relate to the collection and use of biometric information under the Act, certain powers of search and entry and a detention power. Simultaneously the following Regulations will come into force: Immigration (Carriers' Information Obligations) Regulations 2010 (SR2010/238); Immigration (Certificate and Warrant Forms) Regulations 2010 (SR2010/239); Immigration (Refugee and Protection Status Processing) Regulations 2010 (SR2010/240); Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010 (SR2010/241).

[Immigration Act 2009 Commencement Order 2010 (SR2010/185)]

27 August 2010 In a unanimous decision the New Zealand Supreme Court has dismissed an appeal by the Attorney-General against a Court of Appeal judgment which held that a Tamil Sri Lankan citizen was not excluded from claiming refugee status by reason of the fact that he had been chief engineer on a cargo vessel owned by the Liberation Tigers of Tamil Eelam (LTTE) during a voyage in which it was transporting munitions and weapons to Sri Lanka for their use. The Refugee Status Appeals Authority had found that, before the ship embarked, Tamil X knew of the nature of the cargo, its destination and of many of the atrocities committed by the LTTE during the civil war in Sri Lanka. The voyage concerned ended when the vessel was intercepted by the Indian Navy and escorted towards Chennai. Before reaching that port it was scuttled by those on board, some of whom were LTTE soldiers. An Indian Court convicted Tamil X and other crew members of criminal charges arising from this event. The Attorney-General argued in the Supreme Court that the involvement of Tamil X in the voyage made him complicit in the atrocities committed by the LTTE, so that he had committed crimes against humanity as an accomplice. As well, his involvement in the sinking of the vessel was a serious non-political crime. It was submitted that each aspect of his conduct excluded him from the Refugee Convention by virtue of Article 1F.

The Supreme Court has decided that it was not shown that the supportive activities of Tamil X were actually linked to any atrocities committed by the LTTE. This was because the elements which he helped transport did not reach the LTTE as they went down with the ship. Accordingly, it was not established that any crime against humanity had been committed to which Tamil X was an accomplice. Furthermore, any crime committed in relation to the sinking of the vessel was of a political nature which did not disqualify Tamil X from holding refugee status under the Convention.

[Attornery-General (Minister of Immigration) v Tamil X [2010] NZSC 107 (27 August 2010)]
26 August 2010 It is reported that 34 Immigration New Zealand staff are being investigated for misconduct, including allegations of fraud and corruption. Eighteen allegations relate to officials in New Zealand and sixteen to staff in branch offices overseas. It is also reported that of the seven officials sacked in 2010, five were long-term employees who had worked at INZ between six and eight years. Nigel Bickle of INZ, is reported as saying that in the past twelve months, immigration officials faced 60 allegations of fraud, corruption and dishonesty, of which ten were substantiated, twenty-seven unsubstantiated and twenty-three were being investigated. The substantiated allegations related to systems misuse, misconduct and corruption and have resulted in the seven dismissals, four written warnings, one final written warning, one resignation and one suspension.

[Lincoln Tan, "Immigration investigates 34 staff for misconduct", NZ Herald, Thursday, August 26, 2010, pA4]
24 August 2010 It is reported that Immigration New Zealand this month began fingerprinting those applying for refugee status and those with no identity papers or passports.

[Lincoln Tan, "Overstayers giving up on 'unbearable' life", NZ Herald, Tuesday, August 24, 2010, p A9]

9 August 2010 The Government has published four new Regulations which will come into force at the same time as the Immigration Act 2009, ie at 2am on 29 November 2010:

Immigration (Carriers' Information Obligations) Regulations 2010 (SR2010/238). These Regulations specify information and documentation obligations for immigration purposes that carriers and persons in charge of a commercial craft (namely airlines) are required to meet before allowing a person to travel to New Zealand. These Regulations also prescribe passengers on a maritime craft carrying passengers or cargo or both in the ordinary course of business of the craft and plying between any foreign place and New Zealand as a class of persons for the purpose of s 118(1)(c) of the Immigration Act 2009. Accordingly the carrier and the person in charge of such a craft leaving New Zealand will be required under that section to report to an immigration officer before the departure of the craft details of passengers who were on board the craft when it arrived in New Zealand and were not then on board the craft on its departure.

Immigration (Certificate and Warrant Forms) Regulations 2010 (SR2010/239). These Regulations prescribe the forms to be used for the following purposes under the Immigration Act 2009. First the certificate prepared by an immigration officer under s 274(1)(a) of the Act authorising the officer to obtain information about the present or past whereabouts of a person that the officer has good cause to suspect is a person who may be, or may become as a result of investigations, liable for deportation under the Act. Second the certificate prepared by an immigration officer under s 274(1)(b) authorising the officer to obtain information about the present or past occupiers of premises that the officer has good cause to suspect are being, or have been occupied by a person who may be, or may become as a result of investigations, liable for deportation under the Act. Third, the warrant of commitment that a District Court Judge or a High Court Judge may issue under ss 317(1)(b)(i) or 318(3)(a) in relation to an application described either in s 317(1)(a) or s 323(2) of the Act.

Immigration (Refugee and Protection Status Processing) Regulations 2010 (SR2010/240). These Regulations provide for various procedural matters relating to claims by persons in New Zealand for recognition as a refugee or as a protected person; decisions to cease or cancel the recognition of persons as a refugee or protected person and determinations under s 164(5) of the Act in relation to the matters in s 164(3) & (4) about whether a claimant for recognition as a refugee, or a refugee or a protected person, may be deported.

Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010 (SR2010/241). These Regulations prescribe rules relating to visas, entry permission and related matters for the purposes of the Immigration Act 2009 including:
 19 July 2010 It is reported that the international/humanitarian stream of migration has been reduced from between 3,350 and 3,850 to between 3,250 and 3,825. At the same time allocation of places to the business stream has been increased. The Minister of Immigration, Jonathan Coleman, is reported as saying that "Estimated demand in the international/humanitarian stream is likely to be lower than predicted in previous years, so the surplus places have effectively been transferred to the skilled/business stream". The Head of Immigration New Zealand, Nigel Bickle, is reported as saying that it would be difficult to quantify what it costs to resettle a refugee in New Zealand. However, the Department of Labour estimates refugee resettlement costs in their first year to be $5.73 million.

[Lincoln Tan, "NZ opens arms wider for business migrants" NZ Herald Monday, July 19, 2010, p A6]

12 July 2010 It is reported that seven Immigration New Zealand staff have been dismissed since January 2010 for breaching its code of conduct. A border security staff member and a visa officer in New Delhi are among those dismissed. Nigel Bickle of INZ is reported as describing the actions of these two staff members as "serious". The border security man was fired after his conduct was "determined to have brought the Department into disrepute" and the visa officer for "misusing departmental information for personal purposes". Mr Bickle is further reported as saying that 63 serious allegations had been made against staff in the past twelve months but most have not been substantiated. Of the substantiated allegations, most were for dishonesty.

[Lincoln Tan, "Seven Immigration staff fired - rest get lecture", NZ Herald, Monday, July 12, 2010, front page]
7 July 2010 Two homosexual men - from Iran and Cameroon, respectively, claimed refugee status in the UK on the basis that they would face the risk of being persecuted on grounds of sexual orientation if returned to their home countries. In both Iran and Cameroon it is a criminal offence punishable by, inter alia, imprisonment and, in the case of Iran, by the death penalty, for consenting adults to engage in homosexual acts. The Court of Appeal for England and Wales found that, if returned to their respective home countries, the two men would conceal their sexual orientation in order to avoid the risk of being persecuted. As they would hide their sexuality they would not come to the attention of the State authorities and so would not be at risk of being persecuted. Accordingly, neither man had a well-founded fear of being persecuted that entitled him to protection under the Refugee Convention: it was permissible for a State party to the Refugee Convention to refuse asylum to a homosexual person who, if returned to their home country, would deny their identity and conceal their sexuality in order to avoid being persecuted, provided that the homosexual person's situation could be regarded as "reasonably tolerable". Only if the hardship which would be suffered was deemed to exceed this threshold would the applicant be entitled to protection under the Convention. The two men appealed to the Supreme Court, contending that the "reasonable tolerability" test was incompatible with the Convention.

The Supreme Court has unanimously allowed the appeal, holding that the "reasonable tolerability" test applied by the Court of Appeal is contrary to the Refugee Convention and should not be followed in the future. Both cases were remitted for reconsideration in light of the detailed guidance provided by the Supreme Court. In arriving at its decision the Court cited favourably the decision of the New Zealand Refugee Status Appeals Authority in Refugee Appeal No. 74665/03 [2005] NZAR 60; [2005] INLR 68.

[HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (7 July 2010)]

7 July 2010 The Prime Minister of New Zealand, John Key, says that he has discussed with the new Australian Prime Minister, Julia Gillard, the possibility of creating a regional refugee processing centre in the Pacific region. Mr Key is reported as saying that the proposal was partly due to the prospect of boatloads of asylum seekers arriving in New Zealand and he was prepared to discuss with Australia a regional solution to the issue of asylum seekers and people-smuggling. He had told Ms Gillard that New Zealand was not interested in increasing its refugee take of 750 a year nor was it interested in accepting a reduction in the quality of refugees it accepts. He is quoted as saying that "... the solution from our perspective has to ensure that it acts as a strong deterrent for those who are engaging in people-smuggling and doesn't act as some sort of magnet to increase the number of boats that are coming to Australia - and may be one day to New Zealand". Deputy Prime Minister, Bill English, is reported as telling Radio New Zealand that talks with Australia had not progressed to the point of any request for resources.

[Adam Bennett, "NZ facing threat of refugee boats: Key", NZ Herald, Wednesday, July 7, 2010, p A2]

1 July 2010 The immigration agencies of Australia and New Zealand have signed a Memorandum of Understanding for checking fingerprint information at a meeting in London of the Five Country Conference (FCC), a grouping of immigration agencies from the United Kingdom, Canada, Australia, the United States of America and New Zealand. In announcing the MOU the New Zealand Minister of Immigration, Jonathan Coleman, says that the initiative will give Australia and New Zealand:
 He says that the arrangement will help the immigration agencies of both countries to establish the true identities of people and help to ensure genuine cases will be successful, while fraudulent cases will be dealt with appropriately through the improved ability to detect identity crime. The improved cooperation with Australia will create safer Trans-Tasman borders and will also facilitate faster processing for genuine travellers. The new data-sharing arrangements have been developed consistent with privacy laws in all participating countries.

[Jonathan Coleman, "New Zealand improves ability to combat identity fraud" Media Statement 1 July 2010]

28 June 2010 By Order in Council - the Immigration Act 2009 Commencement Order 2010 (SR2010/185) - the Immigration Act 2009 will come into force at 2am on 29 November 2010 except for a limited number of provisions.

20 June 2010 Each year the United Nations High Commissioner for Refugees (UNHCR) celebrates World Refugee Day on 20 June. The global theme for World Refugee Day in 2010 is "Home". Through the simple statement "They took my home but they can't take my future", UNHCR will be highlighting the plight of refugees worldwide and recognising their courage and resilience. More information on UNHCR, refugee issues and events celebrating World Refugee Day in the region can be found at www.unhcr.org.au or contact the Public Information Unit of the UNHCR Regional Office for Australia, New Zealand, Papua New Guinea and the Pacific (email: aulcapi@unhcr.org).

16 June 2010 To mark World Refugee Day, the Human Rights Commission has released a consultation document on the rights of refugees and asylum-seekers. This is part of the Commission's Review of Human Rights in New Zealand 2010. The document The Right to Asylum can be downloaded from the Commission's website at www.hrc.co.nz and the closing date for submissions is 1 August 2010. The news release by the Human Rights Commission states:
"New Zealand is one of only 19 countries that accept an annual quota of refugees, plus a small number of people under the family reunification programme. The annual quota is 750 people. In the past 10 years, around 8,000 refugees from 56 countries have resettled here. The largest groups have come from Afghanistan, Myanmar and Iraq. A number of challenges continue to face refugees settling in New Zealand, including the ability to reunite with families left behind in refugee camps or situations of war and oppression. Long delays between refugees arriving in New Zealand and being reunited with their family contribute to social and  health issues refugees face, requiring government and community support.

The Commission has highlighted three key areas as priorities for action for the next five years:
[Human Rights Commission "Refugees' human rights reviewed" News Release 16 June 2010]

10 June 2010 The Settling In initiative introduced in 2004 to help make it easier for refugees and migrants to establish themselves in New Zealand will receive an extra NZ$3 million over the next three years to support more coordinators in more regions around the country.

[Tariana Turia, "Extra help for new migrants and refugees", Media Statement, 10 June 2010]

4 May 2010 The New Zealand Attorney-General has attended a meeting of Attorneys-General in Washington DC drawn from New Zealand, the USA, Canada, Australia and the United Kingdom. There he led a discussion on co-operation in international criminal law proceedings in relation to extradition, refugee or domestic criminal proceedings involving allegations of genocide, crimes against humanity and war crimes.

[Christopher Finlayson, "Declaration will help fight international organised crime", Media Statement, 4 May 2010]

4 May 2010 From 4 May 2010 all people giving immigration advice (whether onshore or offshore) about New Zealand must be licensed unless they are exempt. The mandatory licensing for offshore immigration advisers follows introduction of licensing for onshore advisers in May 2009 and completes the implementation of the Immigration Advisers Licensing Act 2007.

[Jonathan Coleman, "Licensing to cut out cowboy advisers", Media Statement, 3 May 2010]

9 April 2010 The Federal Minister of Immigration, Chris Evans, has announced the immediate suspension of all new asylum claims by people from Sri Lanka and Afghanistan. He is reported as saying that the decision had been made "in the light of changing circumstances" in those countries. He added that the move would "send a strong message to people-smugglers". Amnesty International is reported as saying that the decision was "an appalling political move". The BBC reports that a recent increase in the number of asylum-seekers arriving by boat has put pressure on the Australian government. More than 100 boats carrying asylum-seekers have been intercepted by the Australian Navy since the current government came to power in 2007. The government says it will review the situation for Sri Lankans after three months, and for Afghans after six.

[BBC, "Australia suspends asylum claims", 9 April 2010]

7 April 2010 The Court of Appeal decision in R v Vhavha [2009] NZCA 588 has been added to Case Search page of this website. The judgment addresses the question whether sentences in the immigration and passport fraud area should appropriately reflect deterrence and denunciation. The primary issue in the appeal was whether home detention should have been granted to a Zimbabwe national who, on pleading guilty to eleven charges of immigration fraud, was sentenced to eighteen months imprisonment.

29 March 2010 The New Zealand Law Society has established an Immigration and Refugee Law Committee. If you are interested in becoming a member (or the convener) apply online at www.lawsociety.org.nz. Role descriptions for committee members and the convener are also online. Applications close on 15 April 2010.

[NZLS, LawTalk 747 (29 March 2010) front page]

16 March 2010 Two Court decisions from 2009 have been added to the Case Search page of this website. A brief description of each case follows:
MA v Attorney-General (No. 2) (CA) - Confidentiality - Use of documents seized by Police - Whether may be used in refugee cancellation proceedings

Aziz v Chief Executive of the Ministry of Social Development - Social security - Emergency benefit - Eligibility depending on whether person lawfully present in New Zealand - Meaning of lawfully present - New Zealand Bill of Rights Act s 9 - Whether denial of an emergency social welfare benefit might contravene the prohibition on torture or cruel, degrading or disproportionately severe treatment or punishment where the individual would otherwise be utterly destitute

 12 March 2010 On 16 and 17 March 2010 New Zealand will present its Fifth Periodic Report to the UN Human Rights Committee.

[Simon Power, "Minister to present report to UN Human Rights Committee", Media Statement, 12 March 2010]

10 March 2010 The Supreme Court has granted leave to appeal in relation to the decision of the Court of Appeal in X v Refugee Status Appeals Authority [2009] NZCA 488 (20 October 2009). The approved ground is whether the Court of Appeal erred as to the proper approach to the application of Article 1F(a) and (b) of the 1951 Convention relating to the Status of Refugees.

[Attorney-General (Minister of Immigration) v X [2010] NZSC 19 (10 March 2010)]

4 February 2010 The Minister of Foreign Affairs, Mr McCully, is reported as saying that New Zealand has not performed a backflip on the issue of accepting asylum-seekers from the Australian Customs vessel Oceanic Viking. New Zealand's position has always been that this is a serious problem that needs to be dealt with through a multilateral process. The UNHCR manages that process and in relation to the Oceanic Viking they had tendered some individuals through that process. New Zealand had a refugee quota and the Sri Lankans would form part of that quota. He also warned, after meeting his Australian counterpart, that New Zealand had become a target for people-smugglers.

[Greg Ansley, "NZ 'target for people smugglers'", NZ Herald, Thursday, February 4, 2010, p A4]

1 February 2010 T Alexander Aleinikoff, previously Dean of the law school at Georgetown University in the United States has today assumed the duties of the United Nations Deputy High Commissioner for Refugees. He had been Executive Vice President of Georgetown University and dean of the Georgetown University Law Center since 2005 and Professor of Law at Georgetown since 1997. He is an expert in refugee, immigration and citizenship law and policy.

[UNHCR Communications Service, "T Alexander Aleinikoff becomes UN Deputy High Commissioner for Refugees", Press Release, Monday 1 February 2010]

20 January 2010 The Prime Minister, John Key, has announced that after talks with the UNHCR and with the Prime Minister of Australia, New Zealand will take thirteen Sri Lankan refugees rescued at sea by the Australian customs vessel Oceanic Viking in October and who, on being taken to Indonesia, refused to disembark from the vessel. Although the thirteen have been found to be genuine refugees by the UNHCR, Mr Key says that they will still have to meet New Zealand's security clearance criteria. The Prime Minister has also warned that New Zealand is at risk of being a target for "boat people", disclosing that last year there was an attempted voyage to New Zealand by a boat but those on board ended up in Australia instead.

New Zealand had earlier refused to take any of the asylum-seekers from the Oceanic Viking, saying it did not want to reward people who jumped the queue. It is also reported that all nations initially rejected Australia's request to take people from the Oceanic Viking. Now twenty-eight will go to the USA, thirteen to Canada, thirteen to New Zealand, three to Norway and the remainder to Australia. Twelve of the asylum-seekers have already been resettled in Australia, while four have failed security checks and will remain on Christmas Island. A spokeswoman for the Minister of Immigration, Jonathan Coleman, is reported as saying that the Government supported a multilateral approach to people-smuggling and boat people.

[Isaac Davison and Claire Trevett, "NZ gives 13 Sri Lankan asylum seekers a home", NZ Herald, Wednesday, 20 January 2010, p A4]
 

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