RefNZ NewsRecent Developments in NZ Refugee Law
Last updated: 12 June 2009
RefNZ News provides a chronological summary of noteworthy news and developments in refugee law. The focus is primarily on New Zealand, but significant judgments from overseas Courts will also be noted. Use the Index below to link to summaries of interest.
The Index below contains 2009 News items.
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Index
20 June 2009 World Refugee Day
7 May 2009 New Zealand to present report to United Nations Human Rights Council
4 May 2009 Change to INZ forms - including Confirmation of Claim to Refugee Status in New Zealand
4 May 2009 New Zealand presents 5th periodic report to Committee Against Torture
29 April 2009 Refugee Status Appeals Authority publishes important decision on cancellation of refugee status
9 April 2009 New Zealand to participate in the Bali Process on People Smuggling and Trafficking in Persons
2 April 2009 Fundamental review of legal aid system announced
24 March 2009 UNHCR says requests for asylum in the West climb 12 percent
5 March 2009 Results of inquiry into Pacific Division of INZ released
3 March 2009 Second reading of Immigration Bill begins
3 March 2009 Development of common border between New Zealand and Australia under serious consideration
23 February 2009 UN High Commissioner for Refugees to visit New Zealand
19 February 2009 Work policy and residence policy for victims of domestic violence amended on and from 2 March 2009
18 February 2009 Few licences issued to immigration advisers
2 February 2009 Six Court decisions added to Case Search page of this website
1 January 2009 60th anniversary of New Zealand citizenship
20 June 2009 World Refugee Day is focussed on the theme "Real People, Real Needs" which highlights the central idea of international refugee protection - that those people who flee their homes because of persecution and conflict need safe haven from danger. It is also a reminder that refugees have real and pressing needs for protection, shelter, food, medical care and the protection of their human rights. For details see www.unhcr.org.au/WorldRefugeeDay.shtml.
7 May 2009 On Thursday, 7 May 2009, New Zealand will present its National Report to United Nations Human Rights Council under the new Universal Periodic Review Mechanism.
[Hon Simon Power, "Minister to present report to United Nations Human Rights Council", Media Statement, 4 May 2009]
4 May 2009 From 4 May 2009, the Immigration Advisers Licencing Act 2007 requires that anyone who provides immigration advice in New Zealand must have a licence from the Immigration Advisers Authority, unless they are exempt from the requirement to hold a licence. From 4 May 2010, offshore advisers giving advice to people seeking visas or permits will also have to be licenced. From 4 May 2009, Immigration New Zealand will refuse to accept applications from unlicenced onshore advisers. If an onshore adviser acting on behalf of an immigration client is not on the Register of Licenced Advisers (or not exempt), their application will be returned failed lodgement, and the Registrar of the Immigration Advisers Authority will be advised. Advisers who are awaiting a licensing decision from the Registrar are considered unlicenced.
In April 2009 Immigration New Zealand will be releasing several amended immigration forms (including NZIS 1071 - Confirmation of Claim to Refugee Status in New Zealand), requiring all immigration advisers (licenced, exempt or offshore) to provide details about their adviser status, and whether they are ordinarily resident in New Zealand. The previous versions of forms can continue to be used and submitted to branches until 29 May 2009.
[Service Design, Workforce, Department of Labour, "Upcoming effects of the Immigration Advisers Licencing Act 2007", 25 March 2009]
4 May 2009 New Zealand has presented its 5th periodic report under the Convention against Torture to the United Nations Committee Against Torture. Under the Convention State parties are required to submit a report every five years outlining the measures that have been taken during the reporting period to give effect to the obligation to take effective measures to prevent torture within their borders. The Committee comprises ten independent experts.
[Hon Simon Power, "Committee Against Torture examines NZ's 5th periodic report", Media Statement, 4 May 2009]
29 April 2009 Under Part 6A of the Immigration Act 1987 a refugee status officer and the Refugee Status Appeals Authority have power to cancel the recognition of a person as a refugee where that recognition may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information. In a decision delivered today the Refugee Status Appeals Authority has determined a number of issues which commonly arise in cancellation proceedings, namely whether the refugee status officer can rely on multiple grounds of cancellation, the burden of proof in cancellation proceedings, the standard of proof, whether a causal connection must be established between the fraud or other form of withholding of information and the recogntion of refugee status, the standard of proof required to established that causal connection and whether there is a discretion to cancel recognition of refugee status. The Authority has held:
1. Unless an individual can demonstrate genuine prejudice, there is no reason why a refugee status officer cannot rely, simultaneously or in the alternative, on one or more or all of the statutory grounds applicable to the facts of the case.
2. The procedures prescribed by Part 6A of the Act for determining refugee status are administrative in nature and it is unhelpful to use terms such as "burden of proof" borrowed from civil litigation or criminal prosecution. The responsibility of the refugee status officer is to produce evidence but this does not equate to a legal burden of proof.
3. The standard of proof which applies in the assessment of the inclusion clause issues in Article 1A(2) of the Refugee Convention applies also in the cancellation process under ss 129L(1)(b), 129L(1)(f)(ii) and 129R(b) of the Immigration Act 1987. The processes are part of the same composite investigation into whether the person is someone to whom New Zealand has obligations under the Refugee Convention. The standard of proof in the inclusion assessment and in the cancellation inquiry is lower than the balance of probabilities but higher than mere suspicion.
4. A causal connection must be shown between the procuring of recognition as a refugee and the alleged fraud, forgery, false or misleading representation, or concealment of relevant information.
5. The standard of proof required to establish the causal connection is lower than the balance of probabilities but higher than mere suspicion.
6. There is no discretion as to whether to cease to recognise a person as a refugee where that person's recognition may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information.
The Authority's decision is available on the Case Search page of this website.
[Refugee Appeal No. 75574 (29 April 2009)]
9 April 2009 The Minister for Immigration, Jonathan Coleman, will represent the New Zealand government at the Bali Process on People Smuggling and Trafficking in Persons to be held in Bali next week. The purpose of the visit is to revive and strengthen the Process which strengthens New Zealand's ability to deal with smuggling and trafficking from Asian source countries and enhancing information sharing between members, thereby reducing the possibility for criminal activity at the border. The Minister has also announced that currently, the New Zealand government is working on a Plan of Action to deal with the issue of smuggling and trafficking in people. It will inform on New Zealand's latest measures to help bring an end to people trafficking and reaffirm the country's commitment to preventing and detecting people trafficking, bringing offenders to justice and offering protection and assistance to the victims of trafficking. The Plan is in the final stages of drafting and will be considered by Cabinet in the coming months.
[Hon Jonathan Coleman, "Minister to attend Bali Process meeting", Media Statement, 9 April 2009]
2 April 2009 The Minister of Justice has announced that the Government is to undertake a fundamental review of the legal aid system. The review will consider all aspects of the system. The Minister says that the purpose of the review is to consider how the system can best be structured so it delivers effective legal services to those who need them most, in a way that is cost-effective and sustainable. Quality will be an important focus, as will ensuring that any changes have a positive impact on the wider justice system, especially on the way the courts operate. The review will also focus on developing alternative approaches to manage or reduce costs. Public consultation will start soon and proposals will be announced early in 2010.
[Hon Simon Power, "Government announces review of legal aid", Media Statement, 2 April 2009]
24 March 2009 Provisional statistics compiled by the UNHCR show that the number of asylum-seekers in industrialised countries increased last year for the second year running. The provisional UNHCR figures indicate that some 383,000 new asylum applications were submitted in 2008 in fifty-one industrialised countries, a 12 percent rise compared to 2007, when there were some 341,000 applications. This is the second consecutive annual increase in the number of asylum-seekers since 2006, when the lowest number of asylum applications in twenty years was registered (307,000).
The top country of origin of asylum applicants in 2008 was Iraq (40,500), down 10 percent from 45,100 in 2007, followed by Somalia (21,800), the Russian Federation (20,500), Afghanistan (18,500) and China (17,400). Of the ten nationalities claiming asylum last year, some remained stable while others registered significant increases. Countries of origin recording a significant rise in applications included Afghanistan (up 85%), Zimbabwe (up 82%), Somalia (up 77%), Nigeria (up 71%) and Sri Lanka (up 24%). All of these countries experienced unrest or conflicts in 2008.
The United States continues to be the main country of destination for asylum-seekers of all nationalities in 2008, with an estimated 49,000 new asylum claims, accounting for 13% of all applications in industrialised countries. Thereafter, the main countries of destination in 2008 were Canada (36,900), France (35,200), Italy (31,200) and United Kingdom (30,500).
Along with the rise in the overall total of asylum-seekers over the last two years, the number of countries receiving applications has also increased. In 2004, for example, Iraqis applied for asylum in only seven industrialised nations (excluding countries receiving less than 500 applications) while in 2008 they applied for asylum in fourteen countries. The UNHCR says this suggests that people seeking international protection are searching for it in a larger number of countries, possibly as a result of the introduction of stricter asylum policies in traditional asylum states. This was observed in Sweden, where more restrictive asylum policies led to a 67% drop in the number of asylum applications by Iraqis between 2007 and 2008. During the same period, the number of Iraqi asylum-seekers in neighbouring Norway nearly trebled, and quadrupled in Finland.
The full report Asylum Levels and Trends in Industrialised Countries 2008 is available on www.unhcr.org/statistics.
[UNHCR, "Conflicts in Afghanistan and Somalia fuel increase in asylum seekers" (24 March 2009) http://www.unhcr.org/news/NEWS/49c8a8d62.html]
5 March 2009 Following the release of Department of Labour Pacific Division Review the Minister of Immigration has announced that he will direct the CEO of the Department of Labour to consider re-integrating all activities of the Pacific Division back into the core of Immigration New Zealand to ensure clear lines of accountability and that the workings of the Pacific Division are aligned with the rest of Immigration New Zealand. The Minister has described the Pacific Division as "the ill-conceived creation of the last Labour government" with poor leadership and sub-optimal performance. He has also said that "The mess described in this latest report is unacceptable" and that "It paints a damming picture of a poorly performing service that was poorly led and lacked a clear strategic mandate. The Division has become isolated from the rest of Immigration New Zealand over time, effectively acting in an autonomous manner which is out of keeping with accepted practice".
[Hon Jonathan Coleman, "Minister Releases Pacific Division Review", Media Statement, 5 March 2009]
3 March 2009 The second reading of Immigration Bill has begun in Parliament. A Supplementary Order Paper is to be finalised before the Committee of the Whole. The Minister of Immigration has issued no information about the expected progress of the Bill through the parliamentary process or about the content of the Supplementary Order Paper.
3 March 2009 After talks in Sydney between the New Zealand Prime Minister, John Key, and the Australian Prime Minister, Kevin Rudd, it has been announced that New Zealanders should know within a year if they will be able to fly the Tasman on domestic flights. The possibility of a common border, under discussion since 1992, has been pushed near the top of an official work list. Both leaders see moves to accelerate talks on a common border, and to coordinate climate change policies that could lead to a trans-Tasman carbon trading regime, as central to efforts to build a single economic market. Mr Rudd is reported as saying that officials will work on the practical issues involved to see if agreement can be reached within a year. If such agreement was not possible, "we will explain to you why".
[Greg Ansley, "Common border high on PMs' list", NZ Herald, Tuesday, March 3, 2009, p A6]
23 February 2009 The Minister of Immigration, Jonathan Coleman, has announced that the High Commissioner for Refugees, Antonio Guterres, will be in New Zealand on 26 and 27 February 2009 to meet the Prime Minister, John Key, the Minister of Foreign Affairs, Murray McCully and the Minister of Immigration. The Minister of Immigration says that New Zealand was looking forward to hosting the High Commissioner and to re-emphasising New Zealand's commitment to the refugee resettlement process. New Zealand is one of a small number of countries in the world who, in addition to their Convention responsibilities, also accept an annual quota of refugees for resettlement. The present refugee quota for New Zealand is 750 per year, plus or minus ten percent.
[Jonathan Coleman, "UN High Commissioner for Refugees to visit", Media Statement, 23 February 2009]
19 February 2009 In Amendment Circular No. 2009/02 (19 February 2009) the Government has announced changes (inter alia) to the work policy and residence policy for victims of domestic violence. They have been a mended to (a) Recognise that domestic violence may have been perpetrated by anyone in a "domestic relationship" with the applicant (not just by their partner); (b) Allow the use of non-judicial forms of evidence of domestic violence, specifically a statutory declaration completed by the applicant and two further statutory declarations completed by appropriate persons in difference professions; and (c) Remove the requirement that applicants be referred to Immigration New Zealand by a Child, Youth and Family approved refuge.
The work policy for victims of domestic violence has been amended to (a) Allow temporary work permits to be granted for up to nine months; and (b) Allow applicants to demonstrate only that domestic violence has occurred, rather than having to prove both domestic violence and their inability to return home (applicants for residence permits under the residence policy for victims of domestic violence will still have to prove their inability to return home).
The residence policy for victims of domestic violence has been amended to (a) Include a policy objective statement; and (b) Broaden the criteria for gauging whether a person cannot be returned to their country of origin, so applicants need only show that if they returned they would either have no means of independent financial support from employment or other means, or be at risk of abuse or exclusion from their community because of stigma.
In addition, references to the terms "marriage" and "relationship" have been replaced with the term "partnership" in both the work policy and residence policy provisions.
[Immigration New Zealand, Amendment Circular No. 2009/02 (19 February 2009)]
18 February 2009 It is reported that fewer than ten percent of immigration advisers have obtained licences under the Immigration Advisers Licencing Act 2007. With ten weeks to go before immigration advisers will be required by law to be licenced, only 80 of the estimated 1,200 advisers have obtained licences. But the Immigration Advisers Authority is reported as saying that the low number is an endorsement of the purpose and intent of the legislation. It also says that 160 immigration advisers have said that they will not be applying.
[NZPA, staff reporter, "Immigration advisers", NZ Herald, Wednesday, February 18, 2009, p A3]
2 February 2009 Six Court decisions added to Case Search page of this website. A brief description of each case follows:
Zayr v Chief Executive, Department of Labour - Detention - Removal from New Zealand under police escort - Whether obligation on Immigration New Zealand to offer election whether to leave voluntarily or by force - Whether refusal to leave voluntarily and consequential increased attention on arrival in home country relevant - Immigration Act 1987, s 59
R v Sabuncuoglu (CA, 2008) - Sentencing considerations where false declaration made in support of refugee application - significant uplifts in starting sentences may be appropriate in the future
R v Hassan (CA, 2008) - Sentencing considerations where false declaration made in support of refugee application - significant uplifts in starting sentences may be appropriate in the future
MN v Refugee Status Appeals Authority - Judicial review - Review not an appeal - Challenge to credibility finding - Use of false passport - Whether common - Whether refugee claimant obliged to be candid and truthful about his or her identity
Chief Executive of the Department of Labour v Yadegary (CA, 2008) - Detention - Detention for unreasonable period - Immigration Act 1987, s 60
Zanzoul v R (NZSC, 2008) - Article 31 as a defence to a charge of possessing a false passport - Whether an abuse of process to charge a refugee with passport offence where the passport has been used as a means of putting refugee in the position to claim refugee status
1 January 2009 On 1 January 1949 the British Nationality and New Zealand Citizenship Act 1948 came into force and most people living in New Zealand on that day became New Zealand citizens. Prior to that they were solely British subjects. In 2009 the Department of Internal Affairs plans to hold a number of special commemorative events to mark this 60th anniversary of New Zealand citizenship. The planned events include a Parliamentary function in February 2009, the launch of an educational website, a school essay competition, and a number of special citizenship ceremonies throughout the country.
[Hon Richard Worth, "60th Anniversary of New Zealand Citizenship", Media Statement, 1 January 2009]
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