INTERNTIONAL LAW AND REFUGEES IN NEW ZEALAND
THE REFUGEE CONVENTION: A BRIEF OVERVIEW
The Non-Refoulement Obligation
TRANSLATION OF NEW ZEALAND'S INTERNTIONAL OBLIGATIONS UNDER THE REFUGEE CONVENTION INTO NEW ZEALAND DOMESTIC LAW
The Gulf War
Passports - Article 31
Determination of Refugee Status
DOMESTIC IMPLEMENTATION OF THE REFUGEE CONVENTION
THE REFUGEE DETERMINATION PROCESS IN NEW ZEALAND
Domestic Implementation: Structural Weaknesses
Domestic Implementation: Systemic Weaknesses
DOMESTIC IMPLEMENTATION: THE IMMIGRATION AMENDMENT BILL 1998
Domestic Implementation of the Convention
The Binding Nature of the Determination of Refugee Status
The Non-Refoulement Obligation
DOMESTIC IMPLEMENTATION: THE JURISPRUDENCE OF RSAA
of this paper is to provide an outline of the main features of the Refugee
Convention and the degree of its incorporation into New Zealand domestic
law, a brief description of the structural and systemic weaknesses of the
refugee determination procedures in New Zealand, a brief review of the
international law aspects of refugee determination and where appropriate,
a brief comment on the amendments proposed by the Immigration Amendment
Even in New Zealand, where media coverage of serious overseas issues is often absent, it is difficult to escape images of large-scale human tragedy. Most notably in recent times the horror of Bosnia Hercegovina, the genocide in Rwanda followed by the human tidal wave which first left, and then returned, the present floods in China, the tsunami in Papua New Guinea. Victims of these calamities are described indiscriminately as "refugees".
But under international
law, the great majority of these people are not refugees, no matter how
great their suffering or their need. The focus of international refugee
law is much more narrow than that. It takes as its subject only those at
risk of persecution and even then recognizes only five situations
in which persecution may occur. Given that there are no limits to the manner
and form of persecution, the limitations imposed by international refugee
law are severe. The only recognized grounds of persecution are race, religion,
nationality, membership of a particular social group or political opinion
and the refugee claimant must additionally show an individualized risk
of persecution. The 1951 Convention Relating to the Status of Refugees,
Article 1A(2) relevantly provides:
In the case of a person who is more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
acceded to the 1951 Refugee Convention on 30 June 1960 (5)
and to the 1967 Protocol on 6 August 1973. (6)
At the risk
of doing some violence to the Refugee Convention, for the purpose of an
overview, it can be broken down into three distinct components:
The definition in Article 1 of the Convention is in three parts. First, there are the Inclusion provisions of Article 1A(1) and Article 1A(2). The former brings into the Refugee Convention those persons (statutory refugees) who were recognized as refugees under earlier international instruments. Article 1A(2) (as amended by the 1967 Protocol) on the other hand, provides the contemporary definition of a "refugee". Here is to be found the prescription of an individualized well-founded fear of persecution for a Convention reason.
Next are the
Cessation provisions of Article 1C which provide:
Provided that this paragraph shall not apply to a refugee falling under Section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence."
are the Exclusion clauses which provide:
The focus of the definition is therefore on those who need and deserve protection.
The focus of this paper is on those Convention refugees who arrive in New Zealand spontaneously and subsequently apply for recognition as refugees. Such persons are often referred to as spontaneous refugees and are to be distinguished from "resettlement refugees" who are usually, but not always, part of a mass movement provoked by invasion or oppression and who while overseas, are selected by the New Zealand government for resettlement in New Zealand. Upon their arrival at the border of New Zealand, they are granted a residence permit. Historically, the quota for resettlement refugees has been set at 800 but in the last year that figure has been reduced to 750.(10) Whereas resettlement "refugees" have not always been required to meet the requirements of Article 1A(2) of the Refugee Convention, spontaneous refugees have without exception been processed strictly in accordance with the refugee definition.
The Non-Refoulement Obligation
duty owed by New Zealand to a person who meets the Convention inclusion
criteria (and who is not excluded from the Convention) is the obligation
to not return that individual to a country where his or her life or freedom
would be threatened on account of his or her race, religion, nationality,
membership of a particular social group or political opinion. This is known
as the non-refoulement obligation. Article 33 provides:
obligation is not, however, absolute. Article 33(2) permits exceptions
where there are reasonable grounds for regarding the individual as a danger
to the security of the country in which he or she is, or who, having been
convicted by a final judgment of a particularly serious crime, constitutes
a danger to the community of that country.
expulsion of refugees lawfully in New Zealand is permitted by Article 32
on the grounds of national security or public order. That article provides:
Under the Refugee
Convention, there is no equivalent to the Committee against Torture. The
only supervisory mechanism is contained in Article 35 which imposes an
obligation to co-operate with the United Nations High Commissioner for
Refugees and to provide certain information and statistical data. The article
No part of
the Refugee Convention has been incorporated into New Zealand domestic
law by legislation. The only express legislative reference to the Convention
is in the Immigration Act 1987, where it is mentioned in the context of
the return to New Zealand of holders of residence permits who have also
been granted by the New Zealand Government a refugee travel document in
accordance with the Convention,(17) and
in the context of pre-cleared permits.(18)
An indirect reference is to be found in the Legal Services Act 1991 in
the context of making provision for the grant of civil legal aid for appeals
against decisions made by immigration officers and relating to the status
of persons as refugees.(19) There is an
even more oblique reference to the Convention in the Guardianship Amendment
Act 1991.(20) In implementing the Hague
Convention on the Civil Aspects of International Child Abduction, provision
is made for the court to consider whether the return of the child would
be inconsistent with any rights that the child, or any other person, has
under the law of New Zealand relating to political refugees or political
One of the
most significant points, however, is that neither the non-refoulement obligation
under the Refugee Convention nor that under the Convention against Torture
have been translated into New Zealand domestic law. The Immigration Act
1987 is entirely silent on both issues, even in the context of the summary
expulsion (or turnaround) provisions of ss 128, 128A and 128B. This lacuna
is not simply one of academic interest, as graphically illustrated by events
arising from the Gulf War. Other significant issues affected by the non-incorporation
of the Convention relate to prosecutions for the use of false passports
and the functioning of the refugee determination system itself.
The Gulf War
On 28 January
1991 the Minister of Immigration issued a document entitled "Provisional
Procedures for Determining Refugee Status Applications During the Gulf
War Where There is a Security Risk". The procedures came into effect on
28 January 1991 and remained in force until 30 April 1991. During that
period, of 80 people who arrived in New Zealand and claimed refugee status,
about half were refused security clearance and sent home. The number of
people arriving at Auckland International Airport either with false documentation,
or lacking any, and seeking asylum, dropped from 50 in January 1991 to
13 in February 1991 and 5 in March 1991(21).
The emergency procedures in summary were as follows:
(a) They applied to all persons living in New Zealand and applying for refugee status;
(b) Such persons were to be held in custody;
(c) The New Zealand Immigration Service was permitted to determine only whether the applicant had a prima facie claim to refugee status. No decision was to be made as to whether the individual was in fact a refugee;
(d) There was to be no appeal against a decision that a prima facie case had not been established;
(e) Wehre the Immigration Service decided that no prima facie case had been established, the applicant was to be removed from New Zealand;
(f) Where a prima facie case had been established it was then necessary for the police to give what was called "a security clearance";
(g) For those cases where the Immigration Service had determined that a prima facie case for refugee status had been established, but the Police were unable to state that the applicant did not pose a threat to national security, then expulsion was to occur.
The procedures were not published or enforced pursuant to any express statutory power and the procedures contained no definition of what was meant by "threat to national security". Nor were the Police expressly required, in giving or withholding a security clearance, to take account of New Zealand's obligations under the Refugee Convention or the Convention Against Torture. Significantly, the question the Police had to address was not whether the individual actually constituted a threat to national security. Rather, the question was couched in the negative, namely whether it could be said that the person did not constitute a threat to national security.
Predictably, the point was arrived at where a security clearance was withheld from asylum-seekers on the grounds that "not enough was known about them".(22)
It can be seen that the terms of the Gulf War procedures were such that it was not claimed that the persons expelled from New Zealand were persons in respect of whom there were, in terms of Article 33(2) of the Refugee Convention, reasonable grounds for regarding them as a danger to the security of New Zealand.
The decision of the Court of Appeal in D v Minister of Immigration  2 NZLR 673 (CA), in upholding the Gulf War procedures, does not discuss any of these issues. Importantly, no reference is made in the judgment to Articles 32 and 33 of the Refugee Convention or to the non-refoulement obligation. Yet the Court stated at 676:
Passports - Article 31
A further problem at the border relates to the arrival of asylum-seekers travelling on false passports. From the perspective of the New Zealand Police and of the New Zealand Immigration Service, false passports undermine fundamental aspects of immigration control, and ultimately the sovereign right of New Zealand to determine who enters its borders. Severe penalties are prescribed by the Passports Act 1992 (two years imprisonment) and very substantial penalties are in fact imposed.(24)
However, the bona fide refugee may have no alternative but to use a false passport, either because the circumstances of flight make it impossible to obtain one lawfully from the country of origin, or because New Zealand's growing visa regime makes it impossible to arrive in New Zealand to seek asylum.(25)
Most of the passport prosecutions taken by the Police are heard in the Otahuhu District Court. In Appiah v New Zealand Police(26) a sentence of three months imprisonment was imposed by the District Court on an asylum-seeker who had yet to have her refugee application heard. The District Court Judge had regarded it as a "seriously aggravating" feature of the crime that Appiah acknowledged that she knew the passport to be false and had obtained it after being denied a visa for entry to New Zealand. In the High Court, the appeal was allowed on the basis that a relevant consideration in the sentencing situation was the question whether Appiah was indeed a Convention refugee. The case was remitted to the District Court for the determination of sentence after the question of refugee status had been resolved. Mercifully, Elias J suggested that if refugee status was granted, it "may well be the case" that a sentence of imprisonment would be unduly harsh.
of the appeal on the narrow ground of matters relevant to sentencing, Elias
J did not, unfortunately, go on to address the fundamental refugee law
principle underlying the proper approach to cases of this nature.(27)
That principle is that the Refugee Convention does not create refugee status,
it simply describes a condition which already exists. That is, the definition
is declaratory, not constitutive. This is the point made by the UNHCR Handbook
on Procedures and Criteria for Determining Refugee Status (1979), para
While both Khaboka and Jahangeer are referred to by Elias J in Appiah, they are not discussed.
issues arising from Article 31 are the meaning of:
Determination of Refugee Status
The Refugee Convention is silent on the issue of the determination of refugee status. It merely identifies who is a refugee (and who is not) and then imposes certain responsibilities on the State Parties in relation to those who are indeed refugees. For refugees to engage the responsibilities of the State at domestic level, there must be a domestic mechanism whereby their status as refugees can be determined and recognized. In the result, any discussion of the domestic implementation of New Zealand's obligations under the Refugee Convention must necessarily address how, at domestic law level, refugee status is determined and how domestic law then provides for the Convention obligations owed to refugees to be met and discharged.
How then is
the question of refugee status presently determined in New Zealand domestic
law, if at all?
By terms of reference approved by Cabinet and published by the Minister of Immigration, the Executive set up both the Refugee Status Branch of the New Zealand Immigration Service and the Refugee Status Appeals Authority. Both bodies are required by the terms of reference to make determinations of refugee status in accordance with the Inclusion, Cessation and Exclusion provisions of the Refugee Convention.(30) From the perspective of both international law and constitutional law, this method of "incorporation" is unusual, if not unique.(31) The point is underlined by the fact that the two bodies comprising the determination system are "created" by fiat of the Executive, nothing more.
is required as to how this situation has been arrived at.
The Refugee Convention does not stipulate the procedures for determining refugee status. That is left to the State Parties to develop in their own way. Certain minimum standards have been recommended by the Executive Committee of the United Nations High Commissioner's Programme by means of what is known as Excom Conclusion No.8: Determination of Refugee Status (1977).(32) It is to be noted, however, that the prescribed standards are minimum standards applicable to all State Parties and it would be inappropriate for a developed country such as New Zealand to apply standards which are attainable even by an impoverished third world country.
The pre-1991 refugee determination procedures in New Zealand have been described elsewhere.(33) Essentially, a decision on refugee status was made by the Minister of Foreign Affairs together with the Minister of Immigration on the recommendation of a committee of government officials who interviewed the refugee claimant.
In 1991, in a somewhat belated response to Benipal v Ministers of Foreign Affairs an Immigration, the New Zealand Government on 17 December 1990 approved new procedures for refugee status. They included the setting up of the Refugee Status Appeals Authority (RSAA). On 11 March 1991, the procedure was incorporated into terms of reference which envisaged that in the first instance applications for refugee status would be considered by immigration officers seconded to a special unit called the Refugee Status Branch (RSB) (formerly the Refugee Status Section). Anyone declined refugee status was given a right of appeal to the RSAA.(34) The RSAA presently has 15 members all of whom hold a legal qualification. A representative of the UNHCR is ex officio a member of the RSAA.
There have been four terms of reference in the space of eight years - the most recent terms coming to force from 30 April 1998.(35) The drafting skills evidenced by all four documents can only be described as poor.
Be that as
it may, the remarkable fact is that for some eight years now, New Zealand
has honoured, at domestic level, its international obligations under the
Refugee Convention by way of an extra-statutory system regulated entirely
by executive decree. Unsurprisingly, the system has inherent structural
weaknesses and this has been exacerbated by systemic failures in the immigration
system generally, and in particular by the failure to remove from New Zealand
persons who have no right to be in the country and who have exhausted (or
failed to exercise) the several appeal and review rights conferred on them
by the Immigration Act 1987, by Government immigration policy and by the
Judicature Amendment Act 1972.
Domestic Implementation: Structural Weaknesses
First and foremost, there is no domestic law implementation of the non-refoulement obligation contained in Articles 32 and 33, and the entire refugee determination system has been set up without statutory authority. On their own, each feature is surprising. Taken together they are ominous. The conventional view is that domestic implementation of international treaty obligations should be by way of statute or statutory instrument.(36) No justification for the omission has been advanced in Government immigration policy. Nor has any justification been offered for the non-statutory determination system, notwithstanding that the responsibility of the decision-maker is unique in New Zealand domestic law, namely the determination of matters potentially relating to persecution, and perhaps of life and death.
Second, it is supposedly through the refugee determination process that New Zealand honours its obligation to the international community under the Refugee Convention, and in particular the obligation of non-refoulement. But this begs the question whether the decisions made by the RSB and RSAA are binding. The answer is far from clear. The various terms of reference and the current Rules merely state that "the Minister agrees to be bound by the decision" made by the RSB or RSAA.(37) Enforcement of this "agreement" to be bound could prove problematical. For example, does it mean that the Minister cannot bring proceedings to challenge a perverse or obviously wrong decision given by the RSB or RSAA? But more fundamentally, the "agreement to be bound" provision underlines a fatal flaw in the existing arrangement. That is, the "binding" nature of a determination of refugee status depends, ultimately, on the consent of the very person who has the final decision as to whether the individual will be allowed to stay in New Zealand (whether on a temporary or residence permit), or will be expelled, perhaps in breach of the non-refoulment obligation. While administrative law may fill in some of the gaps and provide a remedy to enforce a positive finding of refugee status (and as to this there is doubt), the objection to the current procedures, being an objection based on principle, remains.
Third, there is no linkage between refugee status and immigration status under the Immigration Act 1987: Singh v Refugee Status Appeals Authority  NZAR 193, 201-209 (Smellie J). The determination of refugee status is not effective in respect of immigration status: Butler v Attorney-General (CA181/97, 13 October 1997) 20.
The fourth point is related to the first three. Without a legislative basis, are decisions of the RSB and RSAA reviewable by the Courts? Until recently it had been thought that in the absence of a statutory framework, refugee decisions were reviewable pursuant to the prerogative writs rather than pursuant to the Judicature Amendment Act 1972. See Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland, 29 November 1985, A878/83, Chilwell J) (final judgment) 234-274 and Singh v Refugee Status Appeals Authority  NZAR 193, 212 (Smellie J). But more recently the Court of Appeal expressly left this issue open in Butler v Attorney-General (CA181/97, 13 October 1997) 19-23 (Richardson P, Henry, Keith, Tipping & Williams JJ) and S v Refugee Status Appeals Authority  2 NZLR 291, 294 (CA) (Henry, Keith & Blanchard JJ).
Fifth, the independence of the refugee decision-makers vis-à-vis the Executive is not addressed by the Cabinet-approved procedures. The initial determination of refugee status is made by the RSB of the New Zealand Immigration Service. While the special responsibilities involved are reflected in the allocation of the task to a specialized Branch, the only visible institutional provision made by the Rules is that officers of the Immigration Service who have been authorized by the General Manager of the Immigration Service to deal with applications for refugee status are deemed to be officers of the RSB.(38) This hardly addresses the point, especially when published policy also confers on RSB officers the dual role of making both refugee and immigration decisions.(39) While no claim is made that the first level decision-making body enjoys institutional independence, the question which should be asked is whether the absence of independence is acceptable. Even though RSB officers have a limited disengagement from immigration issues, their employer, the New Zealand Immigration Service is also charged with enforcing the Immigration Act and protecting New Zealand from unrestricted immigration. It is common for officers to be rotated through various sections of the Service, eg, from border enforcement to refugee determination and vice versa. Institutional forces can shape, even at a subconscious level, the attitude of the decision-maker to refugee issues.
The picture in relation to the RSAA is more complicated. Members are appointed by the Minister of Immigration, but the Chairperson is required to be from outside Government and the other members to be "independent".(40) A representative of the UNHCR is ex officio a member of the RSAA with decision-making powers.(41) Appointments are made by Cabinet on the recommendation of the Minister of Immigration. The Rules are silent as to the terms of appointment of RSAA members, most of whom are now full-time members, but others remain part-time members. Generally, the "terms" are set out in a standard set of "Conditions and Guidelines" which specify the term of appointment usually for an initial one year probationary period and for terms of two or three years thereafter) at a specified rate of remuneration. The terms of appointment are silent on the issue of removal during the term of the appointment. No oath or declaration is taken on appointment concerning the performance of duties and there is no provision concerning the personal liability of members. Contrast the express provisions as to appointment and terms of office prescribed by the Immigration Act 1987 for the Deportation Review Tribunal,(42) the Residence Appeal Authority(43) and the Removal Review Authority.(44)
Administrative support for the RSAA is provided by employees of the New Zealand Immigration Service.(45) However, such employees cannot also be currently employed to consider applications for refugee status.(46) Other resources are provided only if the Minister of Immigration considers they are necessary to enable the RSAA to carry out its functions pursuant to the Rules.(47) The NZIS is responsible for providing an independent interpreter required at the hearing.(48) The RSAA is expressly precluded from considering any immigration matters relating to an appellant's case and from considering whether, in respect of persons declined refugee status, there exist any humanitarian or other circumstances which could lead to the grant of a residence or other permit to remain in New Zealand.(49) It is clear that the RSAA has no direct role to play in the observance by New Zealand of the non-refoulement obligations imposed by Article 33 of the Refugee Convention(50) and by the Convention against Torture, Article 3.(51) This is on one view ironic, given that the RSAA is possibly the best equipped and most experienced body to make assessments of the kind required by the separate Conventions. Above all, it enjoys the advantage of actually seeing and hearing the claimant. Credibility assessments are, in these circumstances, more likely to be accurate.
To date there has been no study into the question of how far the principles of judicial independence apply, in the New Zealand context, to an administrative tribunal such as the RSAA.(52) In any such study, the New Zealand Bill of Rights Act 1990, s 27(1) will no doubt be relevant,(53) as will the extensive Canadian jurisprudence which recognizes that judicial independence involves both individual and institutional independence: Valente v The Queen  2 SCR 673, 687 (Le Dain J writing for the Court). A review of the jurisprudence from the Supreme Court of Canada confirms that judicial independence is part of the rules of natural justice, and as such applies to proceedings before administrative tribunals performing an adjudicative role. In determining the judicial independence of a tribunal, both its institutional independence and its institutional impartiality may be challenged. In general terms, the analysis focuses on three core characteristics (sometimes referred to as the Valente principles) of judicial independence: security of tenure, financial security and administrative independence. The test must be applied flexibly having regard to the functions exercised by the Tribunal.(54)
Whether the RSAA fully complies with the principles developed by the Canadian courts has yet to be determined and it was no doubt with these and other matters in mind that the New Zealand Court of Appeal in Butler v Refugee Status Appeals Authority (CA181/97, 13 October 1997) at 22-23 recently recommended legislative attention:
Quite apart from these problems, there are other depressing aspects of the domestic implementation of New Zealand's international obligations. First, legal aid was withdrawn from the initial RSB determination level by the enactment of the Legal Services Act 1991. By virtue of s 19(1)(j), legal aid was restricted to the appeal hearing. The inevitable result was the virtual disengagement by the legal profession from the all important initial stages of a refugee application, namely the preparation of the application and the presentation of the case at first instance. This opened the way for the involvement of immigration consultants and others, many of whom have been parties to the shameless abuse of the system. The level of abuse has reached disturbing levels and is the subject of a very recent decision of the RSAA in which relevant statistics are collected.(58)
One consequence of the abuse is that the success rate of appeals has declined both progressively and substantially. The 1997 approval rate was 9.7% in contrast with the historic high of 49% in 1994(59). In the 97/98 financial year, manifestly unfounded claims formed 29.48% of all appeals dismissed by the RSAA.(60)
(and mistaken) analysis might suggest that there is a correlation between
the Minister's expressed desires concerning the preferred level of intake
of asylum-seekers and the RSAA's declining approval rate. The independence
issue is a very real one.
Implementation: Systemic Weaknesses
the over-arching systemic failure confronting the refugee determination
process at the present time is the failure by the New Zealand Immigration
Service to remove from New Zealand those persons who have been declined
refugee status. See Table 1:
RSB and RSAA
is entirely the responsibility of the New Zealand Government and is sadly
a reflection of the general failure to enforce, in a credible manner, many
of the immigration laws of New Zealand as they relate to the expulsion
of persons who have no right to be in this country and who have either
failed to pursue their numerous remedies or who have exhausted those remedies.
See table 2. There is as a result little credibility to New Zealand's immigration
|Year||Overstayers||Served||Removed||Voluntary Departure after Service||Total|
||Not recorded||Not Recorded||Not Recorded|
|1993 Jan to Jun||
||Not recorded||Not recorded||Not recorded|
|1993 Jul to Dec||
By international standards, the New Zealand refugee status determination system is humane and fair but it is perceived by the unscrupulous as providing easy access to a work permit and social welfare assistance. This acts as a magnet for those who wish to exploit the system to their own advantage. These manifestly unfounded claims should be identified and removed from the system without delay. A refugee determination system must not only be fair, it must also be expeditious. Unfortunately, due to under-resourcing, the delays at the RSB level have became chronic. As at the end of February 1998 there were 2,383 cases awaiting determination but in the same financial year the Government "purchased" only between 600 and 700 decisions. Given that in the calender year 1997 some 1,580 refugee applications were received and that in the six month period from 1 January to 30 June 1998 840 applications were received, the backlog of cases at RSB level can only increase.(61) Because of this bottle-neck, the RSAA is receiving fewer appeals than it is geared to process. Hopefully, the recent appointment of a number of new determination officers to the RSB will help address the problem. But the sad fact is that notwithstanding the substantial financial cost (including social welfare assistance(62)) involved in refugee status determination, the picture is too often one of neglect by the Government, leading to the abuse of the refugee determination system. Even when the RSB and RSAA identify the abusive claimants, the Government largely fails to remove those persons from New Zealand.
The sad fact
is that implementation at domestic level of New Zealand's treaty obligations
under the Refugee Convention, no matter how well intentioned, depends for
its effectiveness and credibility on the vertical integration of the Convention
obligations at all levels. This means not only protecting genuine refugees,
but also applying the ultimate sanction of removal against those who abuse
the system. At the present time the failure to remove bogus asylum-seekers
from New Zealand is undermining the refugee determination system at a fundamental
level, a point forcefully made by the UNHCR itself..(63)
On 20 August 1998 the Immigration Amendment Bill was introduced.(64) The 59 clauses address both immigration and refugee issues. For present purposes the Bill is significant in at least two respects as the stated aims of the proposed legislation include the following:
As to the proposed statutory framework for determining refugee status, the following points may be noted as arising from the Bill.
Domestic Implementation of the Convention
The 1951 Refugee Convention and 1967 Protocol, while usefully scheduled to the Bill, are not directly incorporated into New Zealand domestic law. This means that the inclusion, cessation and exclusion provisions of Article1 of the Convention will not form part of the law of New Zealand.
The somewhat circuitous approach adopted by the Bill is to impose on both refugee status officers and the RSAA an obligation "to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention". See proposed s 129D:
Curiously, the provisions governing the function and powers of the RSAA relating to appeals make no direct reference to the Refugee Convention. That is, there is no express obligation to apply Article 1. The Convention is referred to only in the context of certain non-appellate functions proposed to be conferred on the RSAA by the new s 129R. One would perhaps have expected that at the very least there would have been an explicit requirement that in its appellate jurisdiction, the RSAA is to apply the Convention definition.
The overall result therefore is that there is no direct incorporation of the definition provisions of the Convention into New Zealand domestic law.
The Binding Nature of the Determination of Refugee Status
The assumption of the Bill is that the refugee determination procedures will continue to be non-adversarial and inquisitorial. The proposed Schedule 3C, para 7 in fact provides that the RSAA is to have the powers of a Commission of Inquiry under the Commissions of Inquiry Act 1908. But unaddressed is the binding nature of the decisions of the Authority. This is unsatisfactory. At least under the current informal procedures there is an express acknowledgement that the Minister of Immigration agrees to be bound by the decisions made by the RSB and the RSAA.
It could be said that the Crown would be bound by a positive determination of refugee status as the proposed s 129W provides:
The Non-Refoulement Obligation
On the positive side, it can be seen from the text of proposed s 129W that the non-refoulement obligation is to be specifically incorporated into New Zealand domestic law, subject to the exceptions recognized by Articles 32 and 33 of the Convention.
The separate non-refoulment obligation contained in the Convention Against Torture is not, however, incorporated.
On the negative side, it must be pointed out that it is also proposed to introduce (via s 14DA) a new visa called a "limited purpose visa". The proposed legislation provides that it may be a pre-condition to the issue of a limited purpose visa that a bond be paid in accordance with the new s 148B. An applicant for a limited purpose visa must make a declaration as to whether there are any circumstances known to the person at the time of application that would or could give rise to a claim for refugee status by the person under the Refugee Convention. The Bill also proposes that the holder of a limited purpose visa will not be eligible for civil legal aid (see the amendments to s 19 of the Legal Services Act 1991 proposed by clause 59 of the Bill). The relevance of the refugee declaration required by the proposed amendment is difficult to see if its purpose is other than to discourage persons from applying for refugee status, or if having applied for refugee status notwithstanding the declaration, to impugn their credibility. On one view, the making of the declaration is of marginal relevance to the credibility issue and in truth the measure, rather than discouraging refugee claims, simply jeopardizes the good faith discharge of the Convention obligations imposed on New Zealand, particularly the non-refoulement obligation.
contained in clause 59 is that legal aid be restored to the first instance
hearing and this is a positive step. However, the proposals also provide
that civil legal aid will not be available to anyone who is unlawfully
in New Zealand. This proposal is to be understood against the background
that the New Zealand Immigration Service has in recent times adopted a
policy of revoking the unexpired permits held by persons declined refugee
status. Upon such revocation, the person concerned becomes unlawfully in
New Zealand. The apparently intended result of the legal aid amendments
contained in the Bill is to remove legal aid funding for judicial review
proceedings brought by such unsuccessful refugee claimants.
The refugee law jurisprudence of the RSAA has developed in spite of the structural and systemic difficulties earlier outlined. It is remarkable that this jurisprudence, while virtually anonymous at domestic level, has achieved a degree of recognition at the international level. For example, in April 1998 the House of Lords, in reversing a decision of the Court of Appeal, cited (without apparent disapproval) a decision of the RSAA which had held that the Court of Appeal decision in question should not be followed in New Zealand.(67) Decisions have also been cited in the Federal Court of Australia,(68) by the Immigration Appeal Tribunal (UK)(69) and a leading text on immigration law has described Refugee Appeal No. 1312/93 Re GJ (30 August 1995) as "the leading case reviewing the international jurisprudence" on the question whether sexual orientation is a ground for recognizing refugee status under the social group category of the Convention.(70) The same decision is also noted (and reproduced in full) in a resource guide to obtaining asylum based on sexual orientation.(71) A decision of the RSAA holding that good faith is a requirement in the sur place context has been reproduced in the International Journal of Refugee Law.(72)
The RSAA has from the outset consciously sought out the best jurisprudence from (in alphabetical order) Australia, Canada, Continental Europe, The United Kingdom and The United States of America. As tribunals and courts in these countries also begin to look abroad for inspiration or assistance, the New Zealand experience has become one of many to draw from. The trend is towards convergence, though not as yet to conformity.
Generally speaking, both the RSB and the RSAA directly apply at the domestic level an international Convention and draw on international jurisprudence. The interpretation principles come not from the Acts Interpretation Act 1924, but from the Vienna Convention on the Law of Treaties, 1969.(73) The "statute law" is to be found not in Acts of Parliament, but in the international human rights conventions, in customary international law, in international humanitarian law and in state practice. At times even extradition law is relevant(74), as is the jurisprudence developed under the "Nuremberg Principles" and which is still being developed by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.(75)
To but briefly illustrate how the RSAA has developed its jurisprudence, reference can be made to its approach to the meaning of persecution, and to the way in which it has dealt with issues of gender and sexual orientation.
The Refugee Convention sensibly does not define the meaning of persecution. There appears to be no limit to the forms of harm we inflict on each other. That having been said, however, New Zealand refugee jurisprudence accepts that persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection: Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 19-20 adopting Canada (Attorney General) v Ward  2 SCR 689, 733 (SC:Can) which in turn drew on Professor James C Hathaway, The Law of Refugee Status (1991) 108.
The standard applied in New Zealand for assessing whether there is a sustained or systemic violation of basic human rights is an international standard, namely, the so-called International Bill of Rights comprising the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 (the ICCPR), and the International Covenant on Economic, Social and Cultural Rights 1966. The RSAA's jurisprudence has been informed by Professor Hathaway's theory of persecution based on these instruments and the hierarchy of rights found in them(76) and by Professor Guy S Goodwin-Gill's observation that in deciding whether acts amount to persecution, it is very much a question of degree and proportion.(77) This does not mean to say that the hierarchy is to be applied in a rigid and mechanical way, as any reading of Professor Hathaway's text and of the RSAA's decisions will show. Ultimately, the issue of persecution is determined by a complex set of factors which include the nature of the freedom threatened, the nature of the restriction imposed, the seriousness of the harm threatened and the chance of the restriction eventuating in the individual case.(78)
The Authority recognizes that the determination whether the treatment feared in any particular case amounts to persecution will involve a normative judgment going beyond mere fact-finding.(79) The Authority has had to consider, for example, the right to education and to work,(80) and the cumulative effect of the denial of the right to change religion (ICCPR, Article 18), the denial of individual existence and autonomy (ICCPR, Article 17) and the denial of the right to marry and found a family (ICCPR, Article 23).(81)
The RSAA's approach to the issue of persecution specifically recognizes that discrimination can affect gender-based groups to different degrees. In Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 26 it stated that:
By adopting an international human rights standard for assessing persecution, the Authority has been able to reject the notion of cultural relativity, namely that the normative judgments being made are "Western standards".(83) This finding is especially significant when a claimant fears persecution at the hands of an avowedly Islamic state.
While the New Zealand jurisprudence on gender-based persecution is discussed in greater detail elsewhere,(84) it should be noted that the RSAA has not to date found the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) of any real assistance in gauging persecution and the duty of State protection, for while CEDAW is an important instrument, it does not contain rights which are in an immediately binding form, nor are any rights made non-derogable. In addition, a large number of reservations have, on one view, turned CEDAW into a weak instrument.(85)
In granting refugee status to an Iranian homosexual, the RSAA examined the interplay between human rights issues and the Convention ground of membership of a particular social group.(86) It adopted the statement of the Supreme Court of Canada in Canada (Attorney General) v Ward  2 SCR 689, 734 that in distilling the content of the "particular social group" ground, it is appropriate to find inspiration in discrimination concepts. The theme emphasized in Ward at 733-739 is that underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates who negotiated the terms of the Convention. The manner in which groups are distinguished for the purposes of discrimination law can be appropriately imported into this area of refugee law with the result that the meaning assigned to "particular social group" should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.
the principle of non-discrimination in the context of sexual orientation,
the Authority drew not only on the ICCPR, but also on the decision of the
United Nations Human Rights Committee in Toonen v Australia (Communication
No.488/1992; CCPR/C/50/D/488/1992, 4 April 1994). Notwithstanding the criticisms
which have been made of that decision on its interpretative approach to
the ICCPR, the RSAA accepted that the decision could be relied upon by
the appellant as part of his argument that there was a nexus between his
civil and political rights and his fear of persecution. Thereafter the
RSAA surveyed extensively the relevant refugee jurisprudence of Germany,
The Netherlands, Sweden and Denmark, the United Kingdom, Canada, the United
States of America and Australia before arriving at a set of principles
of its own as to the proper interpretation of the social group ground.
In short, the entire decision turns on the relevant international instruments
and on international jurisprudence.
Refugee jurisprudence is unique and can properly be said to be sui generis. This observation is as true of the law applied by the RSAA as it is of the non-adversarial inquisitorial procedure it follows. Even the ultimate issue for determination is not that which ordinarily comes before New Zealand courts. The process has been aptly described by Professor Hathaway in the following terms(87):
1. A clear and readable account of the pre-1951 origins of the international refugee regime is to be found in Gil Loescher, Beyond Charity: International Cooperation and the Global Refugee Crisis (Oxford University Press, 1993) 32-74. See also Elizabeth G Ferris, Beyond Borders: Refugees, Migrants and Human Rights in the Post-Cold War Era (WCC Publications, 1993) 4-10. A conceptual approach to the historical background is taken by Professor James C Hathaway in The Law of Refugee Status (Butterworths, 1991) 1-11. A more extensive treatment of the strategic limitations, Eurocentric legal mandate and state-centred elements of the Refugee Convention is found in Professor James C Hathaway, "A Reconsideration of the Underlying Premise of Refugee Law" (1990) 31 Harvard International Law Journal 129, 143-144.
2. See the resolutions of the Council of Europe on the subject of Asylum collected in Plender, Basic Documents on International Migration Law (Kluwer, 2nd rev ed, 1997) 207-258.
3. The Organization of African Community Refugee Convention (Convention Governing the Specific Aspects of Refugee Problems in Africa) 1969 reproduced in Plender, Basic Documents on International Migration Law (Kluwer, 2nd rev ed, 1997) 187.
4. The Cartagena Declaration on Refugees 1984, reproduced in Plender, Basic Documents on International Migration Law (Kluwer, 2nd rev ed, 1997) 192.
5. New Zealand Treaty Series 1961, No.2
6. New Zealand Treaty Series 1973, No.21.
7. RPG Haines, The Legal Condition of Refugees in New Zealand (Legal Research Foundation, 1995) 9-38. For a comparative analysis based on this and other studies, see James C Hathaway & John A Dent, Refugee Rights: Report on a Comparative Survey (York Lanes Press, 1995).
8. Professor James C Hathaway, The Law of Refugee Status (Butterworths, 1991) 189 et seq.
9. See generally Professor James C Hathaway, The Law of Refugee Status (Butterworths, 1991) 205-209 et seq and Lex Takkenberg, The Status of Palestinian Refugees in International Law (Oxford, Clarendon Press 1998) 54-67
10. New Zealand Immigration Service Fact Pack, Issue 9, November 1997, 6. The quota is not always filled. See RPG Haines, The Legal Condition of Refugees in New Zealand (Legal Research Foundation 1995) para 9
11. Refugee Convention, Article 42.
12. See for example, Professor Guy S Goodwin-Gill, The Refugee in International Law (2nd ed, Oxford, Clarendon Press, 1996) 167-171. As to customary international law and domestic law see also Rosalyn Higgins, Problems and Process: International Law and How we Use It (Oxford, Clarendon Press 1994) 17-22 and 28-32 and 210-216; Ivan Shearer, "The Implications of Non-Treaty Law-Making: Customary Law and its Implications" in Alston & Chiam eds, Treaty-Making and Australia: Globalisation versus Sovereignty? (Federation Press, 1995) 93; Brownlie, Principles of Public International Law (4th ed, Oxford, Clarendon Press, 1990) 43-47.
13. See generally K J Keith, "International Law and New Zealand Municipal Law" 130-139 in J F Northey ed, The AG Davis Essays in Law (Butterworths, 1965).
14. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Art 16(2).
15. Chahal v United Kingdom (1997) 23 EHRR 413 at para 80 (ECHR); Ahmed v Austria (1997) 24 EHRR 278 at para 41 (ECHR).
16. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Art 22. New Zealand signed the Convention on 14 January 1986 and it entered into force for New Zealand on 9 January 1990: NZTS1989, No14.
17. Immigration Act 1987, s 18(b).
18. Ibid, s 35D(3)(b).
19. Legal Services Act 1991, s 19(1)(j).
20. Guardianship Amendment Act 1991, s 13(2)(a).
21. Helen Ubels & Lloyd Jones, "Fewer seek refuge as new rules bite" NZ Herald, Thursday, April 11, 1991
22. Tony Berends, "Legal bid to free nine detainees", New Zealand Herald, Saturday, 26 January 1991 reporting the comments of Mr Brian Davies, Assistant Commissioner of Police.
23. Jones, "Refugee Policy Brings Criticism" The New Zealand Herald November 12, 1991.
24. Passports Act 1992, ss 30 and 31. For an asylum case, see Rajinder Singh v Police (High Court, Auckland, AP43/92, 6 March 1992, Barker J) where on appeal, a sentence of nine months imprisonment was reduced to two months.
25. The countries of origin, the citizens of which are required to obtain visas before travelling to New Zealand are inevitably refugee producing countries. Contrast the list of countries which are visa exempt by virtue of the Immigration Regulations 1991, Part I, First Schedule (SR1991/24) with the list of countries the citizens of which must obtain visas for even transiting through New Zealand: Immigration (Transit Visas) Regulations 1998 (SR1998/164). The number of countries the citizens of which are required to hold transit visas has been increased from 24 to 70: Hon Max Bradford, "New Transit Visa Arrangements" News Release 30 June 1998 and "Transit Visas to Prevent Abuse" News Release 7 August 1998.
26. Appiah v New Zealand Police (High Court, Auckland, AP97/97, 10 June 1997, Elias J).
27. The tendency of national courts to avoid international law issues is commented upon by Rosalyn Higgins in Problems and Process: International Law and How We Use It (Oxford, Clarendon Press 1994) at 205-218.
28. Professor James C Hathaway & R Alexander Neve, "Making International Law Relevant Again: A Proposal for Collectivized Solution-Orientated Protection" (1997) 10 Harvard Human Rights Journal 115, 158.
29. See further Professor Guy S Goodwin-Gill, The Refugee in International Law (2nd ed, Oxford, Clarendon Press, 1996) 152.
30. Rules Governing Refugee Status Determination Procedures in New Zealand (in force from 30 April 1998) Part I, para 1 (RSB) and Part II, para 5(4) (RSAA).
31. Contrast the studies by K J Keith, "New Zealand Treaty Practice: The Executive and the Legislature (1964) 1 NZULR 272, 294-299; Law Commission, A New Zealand Guide to International Law and its Sources (NZLC R34, 1996) 14-22 and Law Commission, The Treaty-Making Process: Reform and the Role of Parliament (NZLC R45, 1997) 51-57
32. For an explanation of the role of the Executive Committee of the High Commissioner's Programme, see Refugee Appeal No. 70951/98 (5 August 1998) 24-25.
33. Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland, 29 November 1985, A878/83, Chilwell J) (final judgment) 47-55 & 235-237. See also RPG Haines, "The Need for Change: The Refugee Status Determination Procedure in New Zealand" in Abbott ed, Refugee Resettlement and Well Being (Mental Health Foundation of New Zealand, 1989) 257, 261-263.
34. Singh v Refugee Status Appeals Authority  NZAR 193, 198-199 (Smellie J).
35. The first terms of reference were published in March 1991. Those terms of reference were later replaced by terms of reference published on 1 April 1992. A third and more comprehensive set of terms of reference came into force on 30 August 1993. More recently, a fourth set of terms of reference came into force on 30 April 1998 and are known as the Rules Governing Refugee Status Determination Procedures in New Zealand.
36. Brownlie, Principles of Public International Law (4th ed, Oxford Clarendon Press 1990) 47-48; Law Commission, A New Zealand Guide to International Law and its Sources (NZLC R34, 1996) 14-22 and Law Commission, The Treaty-Making Process: Reform and the Role of Parliament (NZLC R45, 1997) 51-57.
37. Rules Governing Refugee Status Determination Procedures in New Zealand (in force from 30 April 1998) Part I, para 1 (RSB) and Part II, para 5(4) (RSAA).
38. Rules Governing Refugee Status Determination Procedures in New Zealand (in force from 30 April 1998) Part I, para 1.
39. Under current Government immigration policy published pursuant to s 13A of the Immigration Act 1987, RSB officers are required to process residence applications filed by persons declined refugee status but who appear to meet the requirements of the Humanitarian category: NZIS Operational Manual, Chapter 4, Refugees Pol 4-12 (2/96).
40. Rules Governing Refugee Status Determination Procedures in New Zealand (in force from 30 April 1998) Part II, para 2.
41. Ibid, Part II, para 3.
42. Immigration Act 1987, s 103 and the Second Schedule.
43. Ibid, s 18B and Schedule 3A.
44. Ibid, s 63 and Schedule 3B.
45. Rules Governing Refugee Status Determination Procedures in New Zealand (in force from 30 April 1998) Part II, para 4.
48. Ibid, Part II, para 15.
49. Ibid, Part II, para 5(3).
50. See Refugee Appeal No. 2550/96 (7 May 1998) 12
51. See also S v Refugee Status Appeals Authority  2 NZLR 291, 300 (CA).
52. For a commentary on the position in Canada see Hon. Mr Justice Mark R MacGuigan, "The Independence of the Judiciary in Asylum Cases" in Refugee and Asylum Law: Assessing the Scope for Judicial Protection (Proceedings of the International Association of Refugee Law Judges, Second Conference, Nijmegen, January, 9-11, 1997) 16-27. The position in Australia is not addressed by Penelope Mathew in "Retreating from the Refugee Convention" in Alston & Chiam eds, Treaty-Making and Australia: Globalisation versus Sovereignty? (Federation Press, 1995) 149.
53. See further McLean, Rishworth & Taggart, "The Impact of the Bill of Rights on Administrative Law" in The New Zealand Bill of Rights Act 1990 (Legal Research Foundation, 1992) pp 62-97 and Taggart, "Tugging on Superman's Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990"  PL266, 277.
54. Valente v The Queen  2 SCR 673 (SC:Can); Canadian Pacific Ltd v Matsqui Indian Band  1 SCR 3 (SC:Can); Mohammad v Canada (Minister of Employment and Immigration)  2 FC 363 (FC:CA); 2747-3147 Québec Inc v Quebec (Régie des permis d'alcool)  3 SCR 919 (SC:Can); Bell Canada v Canadian Telephone Employees Assn  FCJ No.313 (FC:TD).
55. "Asylum-seekers" New Zealand Herald, Tuesday, May 6, 1997, p A5.
56. Refugee Appeal No. 70951/98 (5 August 1998) 18.
57. Ibid, 22.
58. Ibid, 17-24 and 36-37.
59. In the 1997 calendar year, 102 applications for refugee status were approved by the Refugee Status Branch, which is 17% of all decisions made: Letter to author from New Zealand Immigration Service dated 7 October 1998.
60. Refugee Appeal No. 70951/98 (5 August 1998) 22.
61. Figures provided by the New Zealand Immigration Service. As at 30 September 1998 there were 2,837 refugee applications yet to be decided: Letter to author from New Zealand Immigration Service dated 7 October 1998.
62. Estimates vary considerably but the Minister of Immigration has at one point claimed that it costs taxpayers around $30,000 a year to support each asylum-seeker: Media release by Hon. Max Bradford "Minister allays Amnesty International concerns on asylum-seekers", 19 March 1997.
63. See further in this regard the comments of Dennis McNamara, Director of International Protection, UNHCR, Geneva in Ron Taylor, "Call to Speed up Asylum Process to Beat Fraudsters" (NZ Herald, Saturday, August 16, 1997) p A25.
64. (1998) 21 TCL 32 12.
65. Letter to author from New Zealand Immigration Service dated 19 March 1998.
66. See further Penelope Mathew, "Retreating from the Refugee Convention" in Alston & Chiam eds, Treaty-Making and Australia: Globalisation versus Sovereignty? (Federation Press, 1995) 149, 154-160.
67. Adan v Secretary of State for the Home Department  2 WLR 702, 709;  2 All ER 453, 459 (HL).
68. Randhawa v Minister of Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, 269, 278, 280 (FC:FC) and Minister of Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191, 196 (FC:FC).
69. Danian v Secretary of State for the Home Department  INLR 375 (IAT).
70. Macdonald & Blake, Immigration Law and Practice in the United Kingdom (1st Supplement to the 4th ed, 1997) para 12.53.
71. Levy ed, Asylum Based on Sexual Orientation: A Resource Guide (International Gay and Lesbian Human Rights Commission, 1996).
72. New Zealand Refugee Status Appeals Authority, Refugee Appeal No. 2254/94 Re HB (21 September 1994) - Extract. Refugees sur place and the Requirement of Good Faith (1995) 7 IJRL 332.
73. See for example, Refugee Appeal No. 10/91 Re CPY (27 August 1991) 10 and especially Refugee Appeal No. 70366/96 Re C (22 September 1997) 43.
74. See for example, Refugee Appeal No. 29/91 Re SK (17 February 1992) 23; Refugee Appeal No. 1222/93 Re KN (5 August 1994) 30.
75. See for example, Refugee Appeal No. 1248/93 Re TP (31 July 1995) 25-35.
76. See James C Hathaway, The Law of Refugee Status (1991) 101-124.
77. See Guy S Goodwin-Gill, The Refugee in International Law (2nd ed 1996) 57-68.
78. See for example, Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 18-26.
79. Refugee Appeal No. 2039/93 Re MN (12 February 1996) 15 applying Damouni v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 97, 101 (French J).
80. See for example, Refugee Appeal No. 732/92 Re CZZ (5 August 1994) and Refugee Appeal No. 70618/97 (30 June 1998).
81. Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995).
82. Refugee Appeal No. 2039/93 Re MN (12 February 1996) 16.
83. Ibid, 19-28.
84. Rodger P G Haines, "Gender-Based Persecution: New Zealand Jurisprudence" (1997) IJRL Special Issue 129.
85. Refugee Appeal No. 2039/93 Re MN (12 February 1996) 35-36.
86. Refugee Appeal No. 1312/93 Re GJ (30 August 1995).
87. Professor James C Hathaway, Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (December 1993) 6.
88. Rosalyn Higgins, Problems and Process: International Law and How we Use It (Oxford, Clarendon Press 1994) 206-207.