RefNZ NewsArchives
2004
Index
22 December 2004 New Zealand refuses to take family denied refugee status in Australia
22 December 2004 Four more recent court judgments now available on Case Search page
20 December 2004 UNHCR Global Consultations text now available free online
19 December 2004 Border security arrangement signed by New Zealand and Australia
18 November 2004 Refugee Status Appeals Authority delivers decision examining the limited circumstances in which a second or subsequent claim to refugee status may be made
17 November 2004 Refugee Caselaw website upgraded
5 November 2004 Tampa family reunification cases to be investigated
25 October 2004 Substantial increase in prosecutions for immigration fraud
18 October 2004 Annual report of RSAA presented to Parliament
12 October 2004 High Court at Auckland dismisses challenge to refusal of emergency benefit
8 October 2004 52 percent increase in passengers refused entry
1 October 2004 Michigan Guidelines on Well-Founded Fear now available on this website
29 September 2004 Volunteers needed to help resettlement refugees
23 September 2004 Residence status of Zimbabweans to be regularised
21 September 2004 Government announces NZ$5.75 million increase in funding for border control
17 September 2004 Refugees make submissions on the Identity (Citizenship and Travel Documents) Bill
15 September 2004 Immigration Act 1987 and Immigration Regulations 1999 scheduled for reprinting
14 September 2004 Recent additions to New Zealand Refugee Law website
7 September 2004 New Zealand Acts, Regulations and Parliamentary Bills available again without charge
1 September 2004 Court of Appeal confirms three and half year sentence for people-smuggling
27 August 2004 Government wants refugees to improve employment results
25 August 2004 Eight out of ten refugees still on benefit after five years
13 August 2004 High Court at Auckland confirms eighteen month sentence for possession of falsified passport
9 August 2004 Cost of removing overstayers exceeds NZ$3 million
6 August 2004 High Court of Australia rules that the regime of mandatory and indefinite detention of persons found not to be genuine refugees is lawful
4 August 2004 Government acknowledges large-scale immigration fraud
21 July 2004 Launch of Refugee Voices: A Journey Towards Resettlement
9 July 2004 High Court at Auckland dismisses challenge to cancellation by Chief Executive of the Ministry of Social Development of emergency benefit paid to refugee claimant
7 July 2004 Refugee Status Appeals Authority delivers decision affirming that a human rights approach is to be adopted to the Refugee Convention concept of "being persecuted"
1 July 2004 Proposed legislation to provide for the issue, renewal and cancellation of refugee travel documents
30 June 2004 New Zealand makes contribution to UNRWA
28 June 2004 Customs confirm changes made to asylum procedures at airports
28 June 2004 Two more recent High Court judgments now available on Case Search page
23 June 2004 Policy and registration period for 2004 Refugee Family Quota announced
11 June 2004 High Court at Wellington affirms New Zealand jurisprudence on "real chance"
26 May 2004 Increased funding for refugee resettlement agency
23 May 2004 Immigration consultants to be regulated
4 May 2004 High Court at Auckland dismisses baseless claim that Refugee Status Appeals Authority misled counsel
29 April 2004 High Court of Australia rules that Family Court has no jurisdiction to order release of children detained in immigration detention
26 April 2004 Two more recent High Court judgments now available on Case Search page
21 April 2004 High Court of Australia considers persecution by non-state agents
8 April 2004 Telephone interpreting service wins permanent funding
5 April 2004 High Court at Wellington dismisses challenge to decision of Refugee Status Appeals Authority
16 March 2004 High Court at Auckland dismisses challenge to implausibility findings by Refugee Status Appeals Authority
24 February 2004 New Minister of Immigration appointed
23 February 2004 New practice note issued by Refugee Status Appeals Authority
20 February 2004 Minister of Immigration resigns
16 February 2004 Two recent High Court judgments now available on Case Search page
11 February 2004 English Court of Appeal addresses conscientious objection to service in Chechnya
5 February 2004 Tampa relatives arrive in New Zealand
28 January 2004 New migrant health and disability screening rules
28 January 2004 New Zealand to seek election to the United Nations Commission on Human Rights in 2009
27 January 2004 New Zealand to accept twenty humanitarian cases from Nauru
22 December 2004 The Minister of Immigration, Hon Paul Swain says that a controversial family denied refugee status in Australia will not be accepted in New Zealand as refugees. It is reported that the Bakhtiari family has made more 20 failed legal challenges to gain refugee status in Australia and have now exhausted all avenues.
[Ainsley Thomson, "Minister rejects family", NZ Herald, Wednesday, December 22, 2004, p A7]
22 December 2004 The Case Search page of this website has four new additions. First, there is the decision of the Supreme Court in Zaoui v Attorney-General (SC CIV 13/2004; 25 November 2004) which considers the question whether the High Court has jurisdiction to grant bail on direct application not ancillary to some other process before the Court and whether national security can provide a basis for the blanket exclusion of entitlement to bail. Second is the decision in K v Refugee Status Appeals Authority (No. 2) (High Court Wellington, CIV-2003-485-2031, 5 October 2004, Gendall J) which examines the meaning of "state protection" and of "systemic" in the context of the definition of persecution (sustained or systemic violation of basic human rights demonstrative of a failure of state protection). Third, the decision in Rajabian v Chief Executive of the Department of Work and Income New Zealand (High Court Auckland, CIV-2004-485-671, 12 October 2004, Potter J) examines the question whether the Social Security Act 1964 prohibits the grant of an emergency benefit to a refugee claimant who has been denied a permit under the Immigration Act 1987. Finally, the decision in R v Chechelnitski (CA160/04, 1 September 2004, McGrath, Glazebrook & O'Regan JJ) examines the sentencing principles applicable to the offence of smuggling migrants.
20 December 2004 To commemorate the 50th anniversary of the Refugee Convention the office of the United Nations High Commissioner for Refugees (UNHCR) decided to examine key challenges faced by the Convention, including the scope of the principle of non-refoulement and the proper application of the elements of the refugee definition. To this end the UNHCR commissed papers on these issues from some of the world's pre-eminent international refugee lawyers, and these were discussed at a series of expert roundtable meetings during 2001 as part of UNHCR's Global Consultations on International Protection. The papers and roundtable conclusions, together with an introduction and the landmark declaration of the 2001 Ministerial Meeting of States Parties to the Convention and/or Protocol were published in Feller, Türk & Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations in International Protection (Cambridge University Press, 2003). This book has just been placed on the UNHCR website at <http://www.unhcr.ch>. On the Welcome page click on "Publications". At the Publications page click on "Refugee Protection in International Law".
19 December 2004 New Zealand and Australia have agreed to strengthen security of international air travel. The arrangement, signed in Auckland on 19 December 2004, sets out a framework for the exchange of information between the two countries on passports and visas issued by each. The aim is to improve the security screening of incoming passengers and improve the advance passenger processing systems already in place in both jurisdictions. These systems allow the screening of passengers and their travel documents when they check-in overseas for flights to New Zealand and Australia. The arrangement will also increase the opportunity to detect the attempted improper use of lost, stolen and otherwise invalid travel documents.
[Hon Phil Goff, "NZ, Australia sign border security arrangement", Media Statement, 20 December 2004]
18 November 2004 In a decision delivered today the Refugee Status Appeals Authority (RSAA) has considered ss 129J(1), 129O(1) & 129P(9) of the Immigration Act 1987 and discussed the limited circumstances in which a second or subsequent claim to refugee status may be made. The Authority has held that in any appeal involving a subsequent claim under s 129O(1), the issues are not "at large". Rather, there are three distinct aspects to the appeal. First, irrespective of the finding made by the refugee status officer at first instance, the claimant must satisfy the Authority that it has jurisdiction to hear the appeal. That is, the claimant must establish that, since the determination of the previous claim, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the previous claim. Second, in any appeal involving a subsequent claim, s 129P(9) expressly prohibits a claimant from challenging any finding of credibility or fact made by the Authority in relation to a previous claim. While the Authority has a discretion whether to rely on any such finding, that discretion only comes alive once the jurisdictional threshold for subsequent claims set by ss 129J(1) and 129O(1) has been successfully crossed. Third, where jurisdiction to hear the appeal is established, the merits of the further claim to refugee status will be heard by the Authority. That hearing may be restricted by the findings of credibility or of fact made by the Authority in relation to the previous claim, or "at large" depending on the manner in which the discretion under s 129P(9) is exercised by the Authority.
[Refugee Appeal No. 75139 (18 November 2004)]
17 November 2004 The Refugee Caselaw Site (www.refugeecaselaw.org) published by the University of Michigan Law School has been upgraded. The core collection contains cases from the highest national courts of Australia, Canada, Germany, New Zealand, Switzerland, the United Kingdom and the United States. These cases have been selected and summarised by the Director of the Refugee Caselaw Site, Professor James C Hathaway of the University of Michigan Law School, and by Professor Walter Kälin of the Institute of Public Law of the Faculty of Law, University of Bern. There are two aspects to the improvements. First, leading cases are being added from Austria, Belarus, Belgium, the Czech Republic, Denmark, Finland, France, Greece, Hong Kong, Hungary, India, Ireland, Italy, Japan, Korea, the Netherlands, South Africa, Spain and Turkey. Second, decisions are being added from a wider range of courts and tribunals in four of the countries already included in the core collection, namely Australia, Canada, New Zealand and the United Kingdom. Six recent precedent-setting decisions of the NZ Refugee Status Appeals Authority are already on the site. More will be added shortly.
5 November 2004 The government is to investigate claims that three Afghan refugees from the Norwegian freighter Tampa have brought a further eleven people each into New Zealand. New Zealand has already taken 188 of the 433 boatpeople rescued from the Tampa in 2001. A further twenty-one who have been detained in an Australian immigration centre on Nauru are expected to arrive soon. It is reported that government figures released in September 2004 showed that thirty-one unaccompanied minors from the Tampa had sponsored 207 family members.
[NZPA, "Refugees 'bring eleven family each'", NZ Herald, Friday, November 5, 2004, p A6]
25 October 2004 According to the annual report of the Department of Labour the increase in the number of investigators in the Immigration Service specialist fraud unit from four to eight has led to an almost four-fold increase in the number of charges involving people presenting false documents or information in support of a visa or permit application. In the year to 30 June 2004 charges were laid in 182 cases compared with 48 cases the previous year. The annual report also records that fewer people have arrived at the New Zealand border without identification (143 in the 03/04 financial year compared with 260 the previous year) and more people have been refused entry into New Zealand at the border (869 in the 03/04 year compared with 570 in the previous year).
[Helen Tunnah, "Fraud unit's harvest quadruples", NZ Herald, Monday, October 25, 2004, p A6]
18 October 2004 In its annual report the Refugee Status Appeals Authority has noted that in the year to 30 June 2004 it made 569 decisions of which 478 were declined. Only 91 appellants were recognised as refugees. Thai nationals accounted for 11.7% of appeals, followed by India (11.4%), Iran (10%), Sri Lanka (6.1%) and the Czech Republic (5.8%). Since its establishment in 1991 the Authority has received 7,947 appeals and made 5,930 decisions, with 1,380 appeals withdrawn. Of the decisions made, 997 have been allowed and 4,833 dismissed. The Authority had 625 undecided appeals at the start of the current financial year.
[NZPA, "$1.9m paid to refugee panel", NZ Herald, Monday, October 18, 2004, p A9]
12 October 2004 In the High Court at Auckland Potter J has determined two questions of law stated by the Social Security Appeal Authority relating to the refusal of an emergency benefit to a refugee status claimant who did not hold a permit of any kind. Under s 74A(1) of the Social Security Act 1964 a person who is unlawfully resident or present in New Zealand is not entitled to receive a benefit. The term "unlawfully resident or present" is not defined in the Act. Potter J held that s 4 of the Immigration Act 1987 is available to provide the relevant definition. A non-New Zealand citizen is required to hold a permit to be in New Zealand in order to be lawfully present. While s 129X(1) of the Immigration Act 1987 prohibited removal or deportation of a refugee or refugee claimant, it did not render presence in New Zealand lawful. Since 1993 refugee claimants have not enjoyed exemption from the "lawfully present" requirement. Welfare benefits are available only to persons lawfully in New Zealand. Article 23 (public relief) and Article 24 (labour legislation and social security) of the Refugee Convention only applied to refugees lawfully staying in the territory. There was no breach of the Convention. Potter J also held that the Authority was correct in its finding that in New Zealand a request for authorisation in terms of Article 31 to remain in New Zealand was the process of applying for and obtaining a permit under the Immigration Act 1987.
[Rajabian v Chief Executive of the Department of Work and Income New Zealand (High Court Auckland, CIV-2004-485-671, 12 October 2004, Potter J)]
8 October 2004 The annual report of the Department of Labour reveals that in the year to June 2004 the number of people refused entry to New Zealand rose 52%. In the same period the number of passengers arriving in New Zealand without documents dropped from 260 the year before to 143. Some 70% of passengers flying to New Zealand are now screened before boarding their flight. As a result, 170 passengers were barred from flights. The New Zealand Immigration Service also helped arrange the removal of 2,612 illegal residents, up 48% on the previous year.
[NZPA, "More find NZ's door closed", NZ Herald, Friday, October 8, 2004, p A15]
1 October 2004 The Third Colloquium on Challenges in International Refugee Law convened by the Program in Refugee and Asylum Law, University of Michigan Law School, Ann Arbor, was held in March 2004. The Colloquium brought together nine invited refugee law experts to consider the question whether there is a subjective element in the "well-founded fear" element of the refugee definition. The Colloquium has now issued the Michigan Guidelines on Well-Founded Fear. These Guidelines explain why the focus of this aspect of the refugee definition is fundamentally objective, even as it requires that account be taken of the particular circumstances of each applicant for refugee status. The French language translation is not yet available but the English language version is now available on the Reference page of this website.
29 September 2004 The Refugee and Migrant Service (a non profit, non-governmental agency committed to helping refugees settle into their new community) is seeking community-minded Aucklanders willing to train as volunteers to help refugees resettle in New Zealand. People are invited to train as a volunteer through a New Zealand Qualifications Authority accredited course which starts at the end of October 2004. The course aims to give volunteers the skills they need to assist a refugee family in their first six months in New Zealand. RMS Auckland Regional Co-ordinator, Jill Conway, is reported as saying that teams of two to four volunteers are assigned to work with one family. Tasks including helping set up refugees' homes, power and phone accounts, appointments and school enrolments. Most importantly, friendship and social support is offered. A large number of refugee families have settled in Auckland over the past year with more families expected to arrive in October and December 2004. Prospective volunteers need to be free for weekly visits, with more time required during initial settlement stages. For more information phone 638 9077.
["Helping refugees" Central Leader, Wednesday, September 29, 2004, p 8]
23 September 2004 The Minister of Immigration has announced that the government has set up a process that will enable Zimbabweans in New Zealand on temporary permits to be considered for permanent residence. Following the profound economic and political crisis in Zimbabwe, more than 2,000 citizens of that country are in New Zealand and some have had their status rolled over for up to four years. The New Zealand Immigration Service will be writing to all Zimbabweans who arrived prior to 23 September 2004 on temporary permits inviting them to come forward for consideration of their status. A number are expected to qualify for residence permits under existing categories. Those who do not will be considered under a special residence policy. All applicants will undergo stringent health and character tests.
Last year New Zealand suspended visa waivers for Zimbabwean visitors. Stringent criteria are now being applied to new applicants for visitor visas. Such visas are now issued for short-term stays only. No Zimbabweans who enter New Zealand on or after 23 September 2004 will be considered for permanent residence under the special residence policy. The Minister also announced that he may also consider requests for special directions from another 150 Zimbabweans who are in New Zealand on expired permits. People wanting more information can visit www.immigration.govt.nz.
[Hon Paul Swan, "Process to resolve residence status of Zimbabweans on temporary permits", Media Statement, 23 September 2004]
21 September 2004 The Prime Minister today announced that the government will spend $5.75 million this financial year on extra border control staff and equipment to facilitate arrivals at Auckland and Christchurch international airports. The funding will provide 96 more customs officers, 2 new x-ray machines and 17 MAF staff at Auckland International Airport. Nine extra customs officers will be employed at Christchurch International Airport as well as five new MAF staff and one further x-ray machine will be installed. It is hoped that the additional resources will reduce processing delays during peak periods.
[Rt Hon Helen Clark, "Government moves to ease airport congestion", Media Statement, 21 September 2004]
17 September 2004 Refugees and their representatives have made submissions to the Select Committee hearing submissions on the Identity (Citizenship and Travel Documents) Bill which proposes that New Zealand citizenship be obtained after the holding of a residence permit for five years instead of the current three year period. Concerns that holders of residence permits close to completing their three years would have to wait another five years have been allayed through a supplementary order paper issued on 8 September 2004. The amendment will also give citizenship to children who would otherwise be stateless. One refugee submitted that the government needed to review its policy of issuing travel documents to non-citizens because the existing travel document was inadequate. The submitter told the Committee that he had used the travel document issued by the New Zealand Government and had been arrested in every country visited, including Australia. He is reported as saying that refugees could not visit family dispersed around the globe or make pilgrimages to holy sites because most countries did not recognise the documents as legal until they had verification from the relevant New Zealand High Commission.
[NZPA, "Refugees put case for different rules", NZ Herald, Friday, September 17, 2004]
15 September 2004 The Parliamentary Counsel Office has announced that both the Immigration Act 1987 and the Immigration Regulations 1999 have been scheduled for reprinting in the 2004-2005 reprinting programme.
[http://www.pco.parliament.govt.nz/legislation/reprintsscheduled.shtml]
14 September 2004 Two new High Court decisions have been added to the Case Search page of this website and a new paper on New Zealand refugee law has been added to the Reference page. The High Court decisions are Markevich v R (High Court Auckland, CRI 2004 404 287, 13 August 2004, Priestley J) which addresses the appropriate penalty for possession of a falsified passport and Hamidi v Chief Executive of the Ministry of Social Development (High Court Auckland, CIV 2004 404 101, 9 July 2004, Laurenson J) which addresses the cancellation of emergency benefits granted to refugee status claimants. The paper on refugee law is by Rodger Haines QC and entitled "The Domestic Application of International Human Rights Standards in New Zealand: The Refugee Convention", a paper delivered as part of the Spring Seminar Series held by the Faculty of Law, the University of Auckland.
7 September 2004 The Knowledge Basket once more offers the New Zealand Acts, Regulations and the Parliamentary Bills in browsable mode and free to all. They are to be found with the announcement about the restoration of this material to the database at <http://www.knowledge-basket.co.nz/tkbgp/welcome.html>
1 September 2004 The Court of Appeal has dismissed an appeal against sentence by Victor Chechelnitski who had been sentenced to three and a half years imprisonment on a charge of people-smuggling. The Court said that he had received the correct sentence considering how seriously people-smuggling was regarded.
["Smuggler's appeal rejected", NZ Herald, Thursday, September 2, 2004, p A3]
27 August 2004 The Prime Minister, Rt Hon Helen Clark, is reported as saying that the refugee community will have to improve its employment results before the Government considers increasing the number of resettlement refugees accepted by New Zealand.
[NZPA, "Govt says refugees need to make more effort on jobs", NZ Herald, Friday, August 27, 2004, p A10]
25 August 2004 The New Zealand Immigration Service has reported that eight out of ten refugees are still on a benefit after being in New Zealand for five years. Only about a third had been able to find employment, and of those one in three worked part-time. Language has been identified as the main barrier. The Minister of Immigration, Hon Paul Swain, is reported as saying that it is "very, very difficult" for refugees to find jobs and he is looking at ways to make it easier for refugees to find employment. The government was putting significant amounts of money into language schools and other support services for refugees, but the employment problem was difficult. He is looking at a long-term employment plan for refugees. One possibility was finding them jobs in the agriculture sector, where there were plenty of opportunities because of the tight labour market.
[NZPA, "Swain looks for ways to help refugees get work", http://www.nzherald.co.nz/storyprint.cfm?storyID=3586854]
13 August 2004 In the High Court at Auckland Priestley J has upheld the sentencing of a former refugee claimant to eighteen months imprisonment under s 31(1)(f)(i) of the Passports Act 1992 for being in possession of a falsified passport. The appellant, a citizen of the Ukraine, used a false passport (purportedly issued by Israel) to enter New Zealand illegally and claimed refugee status. Two weeks before being convicted, he withdrew his refugee claim, thereby losing the shield of Article 31 of the Refugee Convention. In discussing the appropriate level of sentence Priestley J took into account the fact that the false passport had not been obtained through a genuine desire to escape persecution. Rather, on detection, the individual had attempted for a period of approximately three months "to play the refugee claim card". While declining a request that he indicate a tariff for sentencing under s 31 of the Passports Act 1992, His Honour observed that a relevant factor justifying leniency might include immediate or early abandonment of a refugee claim which is false or manifestly unfounded.
[Markevich v R (High Court Auckland, CRI2004 404 287, 13 August 2004, Priestley J)]
9 August 2004 Figures released by the New Zealand Immigration Service (NZIS) show that in the year to 30 June 2004, NZ$ 3.08 million was spent on removing from New Zealand 1,205 persons who were in New Zealand unlawfully or whose temporary permits had been revoked following the commission of a crime while in New Zealand. This figure is an increase of 455 on the previous twelve months. A spokesperson for the NZIS is reported as saying that removal costs had risen in the past twelve months because the removal of unsuccessful refugee claimants had become a priority. Many were from far away places such as Iran which meant the cost of sending them back was expensive. Of the 713 people who had arrived claiming refugee status in the year to 30 June 2004, 105 were from Iran, 95 from India and 67 from Thailand. The NZIS accepted only 14% of the latest year's refugee applications and only 41 of the 519 appeals to the Refugee Status Appeals Authority were successful. Those expelled from New Zealand must repay the NZIS for their removal costs before they can return legally to New Zealand. The spokesperson was unable to say how much had been repaid.
[Stephen Cook & Angela Gregory, "Soaring cost of expelling illegals", NZ Herald, Monday, August 9, 2004, front page]
6 August 2004 In a 4-3 majority decision, the High Court of Australia has ruled that the Migration Act 1958 (Cth) lawfully requires the detention of aliens who have been found not to be refugees but whose removal from Australia is not possible because another country is not willing to receive them.
[Al-Kateb v Godwin [2004] HCA 37 (6 August 2004); Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38 (6 August 2004) (McHugh, Hayne, Callinan & Heydon JJ; Gleeson CJ, Gummow & Kirby JJ dissenting)]
4 August 2004 In an address to investigative staff employed by the New Zealand Immigration Service, the Associate Minister of Immigration, Hon Damien O'Connor, has acknowledged large-scale immigration fraud and the need to investigate and prosecute. Immigration fraud prosecutions have jumped in New Zealand in the past year. There were 181 charges laid as at the end of May 2004, up 65% on the previous year. Convictions jumped 900% in a year, from 16 to 143. Quoting an example of fraud, the Associate Minister said that investigations founds that between 70-80% of job checks and 50% of marriage checks referred to the Risk Unit could not substantiated. The Fraud Unit now comprises eight investigators, whose job it is to investigate the following: organised migrant smuggling; forgery and refugee crimes; internal corruption; those who assist migrants who breach permit conditions, and media subjects. The Unit works with other agencies including the New Zealand police, the Department of Internal Affairs and the Serious Fraud Office. The Minister said that Budget 2004 had also boosted fraud management. It had enhanced the relationship between Customs and Immigration by replacing the existing link between their systems, and upgrading the storage and processing of security information. Budget 2004 had also included funding to enhance immigration security by extending Advanced Passenger Processing to cover 100% of arrivals by commercial airlines. Security for offshore branches had also been increased. The Associate Minister criticised the facilities made available to Immigration and Customs at Auckland International Airport, now a private company which controlled approximately 80% of the people going in and out of New Zealand. Officers required access to better facilities on site. The Associate Minister has also signalled that in the review of the Immigration Act 1987 the provisions relating to security risk certificates are being examined. The Minister of Immigration, Hon Paul Swain, aimed for Cabinet to undertake policy decisions on the review by the end of the year, and legislation to be introduced early next year.
[Hon Damien O'Connor, "NZ Immigration Fraud Conference", Media Statement, Wednesday, 4 August 2004]
21 July 2004 At the National Refugee Settlement Forum held in Christchurch, the Minister of Immigration, Hon Paul Swain, has launched Refugee Voices: A Journey Towards Resettlement. This report, compiled by the New Zealand Immigration Service over five years, examines the resettlement challenges facing refugees, asylum-seekers and those brought to New Zealand under family reunification schemes. It also focuses on cultural integration, discrimination and community involvement. The National Immigration Resettlement Strategy, announced in May 2004, will address the issues raised in the report, such as access to education, health, housing and employment. The government will initially invest an additional NZ$62 million over the next four years to help migrants and refugees settle well in New Zealand.
[Hon Paul Swain, "Swain launches new refugee report", Media Statement, Wednesday, 21 July 2004]
9 July 2004 In the High Court at Auckland Laurenson J has dismissed a challenge brought by a refugee claimant who, having been granted an emergency benefit but later declined refugee status, lost that benefit after a review by the Chief Executive of the Ministry of Social Development pursuant to s 81 of the Social Security Act 1964.
[Hamidi v Chief Executive of the Ministry of Social Development (High Court Auckland, CIV2004-404-101, 9 July 2004, Laurenson J)]
7 July 2004 In Refugee Appeal No. 74665/03 (7 July 2004) the Refugee Status Appeals Authority has given extended consideration to the meaning of that part of the refugee definition which requires the refugee claimant to establish a risk of "being persecuted". After a review of leading refugee decisions from the United Kingdom, Canada and Australia the Authority confirmed its earlier jurisprudence which holds that the predicament of "being persecuted" must be understood as a sustained or systemic violation of basic human rights demonstrative of a failure of state protection. As the particular facts of the case involved a claim based on sexual orientation, the Authority went on to consider principles relevant to sexual orientation, privacy and equality. On the question of self-denial and discretion, the Authority considered the recent decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 (HCA) and determined that while it agreed with the outcome of the case, the reasoning process adopted by the majority was not to be followed. Whereas the majority decision in Appellant S395/2002 appears to have addressed the issue of voluntary but protected action as an issue relating to risk or well-foundedness, the Authority was of the view that the focus should be on the nature of the right sought to be exercised. The decision of the Authority is available on the Case Search page of this website.
A related paper given by Rodger Haines QC, Deputy Chair of the Authority, commenting on Appellant S395/2002 and given at the Australia/New Zealand Chapter meeting of the International Association of Refugee Law Judges, Sydney, 9 June 2004, is to be found on the Reference Page of this website.
[Refugee Appeal No. 74665/03 (7 July 2004); Rodger Haines QC, "The Intersection of Human Rights Law and Refugee Law: On or Off the Map? The Challenge of Locating Appellant S395/2002" (9 June 2004)]
1 July 2004 The Identity (Citizenship and Travel Documents) Bill will amend the Passports Act 1992 to provide for the issue, renewal and cancellation of refugee travel documents. The intention is to formalise current practice and ensure that New Zealand meets its obligations under the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees. Under the proposals a New Zealand refugee travel document will be valid for two years unless sooner cancelled.
[Identity (Citizenship and Travel Documents) Bill, clause 37]
30 June 2004 New Zealand is contributing NZ$800,000 to help the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The annual New Zealand contribution to UNRWA is NZ$300,000 but earlier this month at the UNRWA High Level Conference held in Geneva, a supplementary NZ$250,000 was pledged. Of this sum, NZ$300,000 will be earmarked for the UNRWA 2004 Emergency Appeal and NZ$500,000 will be provided to support the Rafah Special Crisis Appeal.
[Hon Marion Hobbs, "New Zealand supports the work of UNRWA", Media Statement, Wednesday, 30 June 2004]
28 June 2004 The Minister of Customs, Hon Rick Barker, has disclosed that in the second half of 2003 Customs introduced new procedures for dealing with asylum claims at airports. In particular, a protocol has been agreed between Customs and the New Zealand Immigration Service to the effect that passengers with incomplete travel papers or those seeking asylum will now be dealt with by one agency first and then the other, rather than being passed between each.
[Kevin Taylor, "Customs quietly revises protocol", NZ Herald, Monday, June 28, 2004, p A12]
28 June 2004 The full text of the decisions in HP v Refugee Status Appeals Authority (High Court Auckland, CIV-7007-03, 4 May 2004, Paterson J) and R & R v Refugee Status Appeals Authority (High Court Wellington, CIV-2004-485-374, 11 June 2004, Goddard J) have been added to the Case Search page of this website.
23 June 2004 The registration period for the 2004 Refugee Family Quota will run from 1 October 2004 to 31 October 2004 and the number of places available will remain at 300.
[New Zealand Immigration Instructions: Amendment Circular No. 2004/09 (23 June 2004)]
11 June 2004 In the High Court at Wellington Goddard J has dismissed an application for judicial review in which it was alleged that the Refugee Status Appeals Authority (RSAA) had failed to correctly apply the "real chance" test. Goddard J held that it was impossible to find that any such error had been made. She has confirmed that it is well settled that the "real chance" test for determining refugee status is not to be calculated on a percentage chance of persecution occurring but on the basis that such a chance is substantial and not simply remote or speculative. No fear can be well-founded for the purpose of the Refugee Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of being persecuted. A fear of being persecuted is not well-founded if it is merely assumed or if it is mere speculation.
[R & R v Refugee Status Appeals Authority (High Court Wellington, CIV-2004-485-374, 11 June 2004, Goddard J)].
26 May 2004 The Budget of 2004 will allocated NZ$6 million over four years to the Refugee and Migrant Service. It also allocates increased funding for English language tuition for refugees and migrants and provides ongoing funding for the Languageline telephone interpreting service. A national secretariat based in the Department of Labour will be established to support communication on migrant and refugee settlement issues between community groups, other organisations and central and local government.
[Hon Paul Swain, "Budget 2004 support for migrants and business", Media Statement, Wednesday, 26 May 2004]
23 May 2004 The Minister of Immigration, Hon Paul Swain, has announced Cabinet's agreement in principle to the statutory regulation of immigration agents and immigration consultants. The proposal will require agents and consultants to be licenced and will provide minimum standards for the immigration industry. An independent governing body will be set up, responsible for administering a code of conduct. The New Zealand Immigration Service will be able to refuse applications from unlicenced agents and consultants and such agents and consultants could be penalised for operating illegally. Lawyers providing immigration advice will be exempt because their industry is already adequately regulated. Officials are working on the detail of the proposal, including the costs of registration and will be reporting to Cabinet towards the end of the year. Legislation is planned for early 2005.
[Hon Paul Swain, "Immigration agents to be regulated", Media Statement, Sunday, 23 May 2004]
4 May 2004 In the High Court at Auckland Paterson J has dismissed an application for judicial review in which it was alleged that the Refugee Status Appeals Authority (RSAA) had misled counsel and had also discarded a medical report without first warning the refugee claimant of potential adverse credibility findings. Paterson J found that there was no basis for the allegation that counsel had been misled. On the question of the medical certificate he was of the view that while it may have been more accurate for the RSAA to have said that it could have given little weight only to the doctor's report rather than no weight, the reasons given by the RSAA for rejecting the evidence could not be undermined as they were perfectly logical and correct. The application for judicial review was dismissed.
[HP v Refugee Status Appeals Authority (High Court Auckland, CIV7007-03, 4 May 2004, Paterson J]
29 April 2004 The High Court of Australia has ruled that the Family Court has no jurisdiction to order the Minister for Immigration and Multicultural and Indigenous Affairs to release children who are detained in an immigration detention centre in accordance with the Migration Act 1958 (Cth).
[Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 (29 April 2004)]
26 April 2004 The full text of the decisions in O & L v Refugee Status Appeals Authority (High Court Auckland, CIV2003-404-5724, 16 March 2004, Harrison J) and T v Refugee Status Appeals Authority (No. 2) (High Court Auckland, CIV2003-485-1848, 5 April 2004, Miller J) have been added to the Case Search page of this website.
21 April 2004 A Jehovah's Witness from the Ukraine suffered two physical attacks and one on his property by private individuals. He was also dismissed from his employment. The Refugee Review Tribunal (RRT) said that it was not prepared to find that the Ukrainian authorities were unable or unwilling to protect him. Wilcox J held that no error of law had been established but on appeal the Full Court of the Federal Court required the RRT to reconsider the claim as it had failed to consider whether the refugee claimant might suffer harm from private individuals because the government of Ukraine was unable in a practical sense to stop such harm occurring. The Minister for Immigration and Multicultural Affairs successfully appealed to the High Court of Australia (Gleeson CJ, Hayne, Heydon, McHugh & Kirby JJ) which restored the decision of Wilcox J. Gleeson CJ, Hayne & Heydon JJ were of the view that the findings of fact made by the RRT that there was no real chance of harm at the hands of private individuals meant that there was no obligation of the kind identified by the Full Court. McHugh J mounted a vigorous attack on the decision of the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 which, on one view, would stigmatise conduct as persecution when carried out by the state or its agents, but not when carried out by non-state agents. This led McHugh J to reject both the "protection theory" as well as the "accountability theory". In his view there was only one question posed by the Refugee Convention, namely whether the individual faces a real chance of being persecuted. Kirby J left open the question whether there was a "third way" (as suggested by McHugh J), finding it possible to dispose of the appeal within an orthodox interpretation of the "protection" theory. Beyond their obiter comments, both McHugh J and Kirby J agreed with the other three justices that the fact findings made by the RRT meant that there was no duty on it to enquire into the adequacy of state protection when there was in fact no well-founded fear of being persecuted. By way of footnote it is to be observed that in Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [66] the New Zealand Refugee Status Appeals Authority held that the proper approach to the question of state protection is to enquire whether the protection available from the state will reduce the risk of serious harm to below the level of well-foundedness. The duty of the state is not, however, to eliminate all risk of harm. In other words the Authority has arrived at the same conclusion as McHugh J, but without finding it necessary to reject the "protection" theory of state protection. On the contrary, in the Authority's view, its holding flows from the protection theory. There is no need to find a "third way".
[Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 (21 April 2004); (2004) 205 ALR 487]
8 April 2004 A telephone interpreting service (Language Line) offering 35 different languages is to receive ongoing funding after a highly successful pilot. In the nine months of the pilot project the service has supported over 8,000 interpreting sessions across the six participating agencies and will receive NZ$1.266 million in the coming year. Language Line is free to clients of the Accident Compensation Corporation, Housing New Zealand Corporation, Department of Internal Affairs, New Zealand Police, Ministry of Social Development and the New Zealand Immigration Service. Language Line operates Monday to Friday 10am until 6pm. For more information on Language Line go to www.languageline.govt.nz.
[Hon Chris Carter, "Language Line has won permanent funding commitment", Media Statement, Thursday, 8 April 2004]
5 April 2004 In the High Court at Wellington Miller J has dismissed an application for judicial review in which it was alleged that the Refugee Status Appeals Authority had breached the rules of fairness by failing to give advance warning of an adverse credibility finding and by failing to keep a record of the hearing. The tape recorder had broken down after one hour but the High Court had been supplied with a transcript compiled from handwritten notes. Miller J held that under s 129Q of the Immigration Act 1987 the Authority was required to give reasons, but there is no requirement to prepare a transcript of the hearing. An obligation to produce a transcript should not lightly be inferred and in the statutory context, no such obligation could in fact be inferred. It was hard to accept that the failure to supply a transcript after the hearing can in itself show that the hearing was unfair. It is necessary to bear in the mind the purpose for which a transcript may be required. The High Court is not conducting an appeal by way of rehearing and there is no statutory obligation to keep a transcript. There is no right of appeal from decisions of the Authority. On the facts, the failure to keep a transcript was due to a breakdown of the equipment that went unnoticed at the time and the parties were able to provide the court with a transcript. There was no suggestion that the course of the hearing before the Authority had been affected in any way.
[T v Refugee Status Appeals Authority (High Court Wellington, CIV2003-485-1848, 5 April 2004, Miller J)]
16 March 2004 In the High Court at Auckland Harrison J has dismissed two applications for judicial review which sought to challenge findings of implausibility made by the Refugee Status Appeals Authority.
[O & L v Refugee Status Appeals Authority (High Court Auckland, CIV-2003-404-5724 & CIV-2003-404-5725, 16 March 2004, Harrison J)]
24 February 2004 The Hon Paul Swain has been appointed Minister of Labour and Immigration. Other portfolios held by Mr Swain include Transport, Corrections, Communications and Information Technology. He is Associate Minister of Economic Development and of Commerce.
[Rt. Hon Helen Clark, "New minister appointed", Media Statement, Tuesday, 24 February 2004]
23 February 2004 The Refugee Status Appeals Authority has today issued a new Practice Note which consolidates and supercedes all previous Practice Notes and is effective from 23 February 2004. The new Practice Note is to be found on the Practice Note page of this website.
[Practice Note 1/2004 (23 February 2004)]
20 February 2004 The Prime Minister, Rt. Hon Helen Clark, has announced that she has received the resignation of the Hon Lianne Dalziel from all her portfolios and has advised the Governor-General to accept it. Ms Clark is reported as saying that the resignation was over an untrue statement made to the New Zealand Press Association.
[Rt. Hon Helen Clark, "Resignation of Lianne Dalziel", Media Statement, Friday, 20 February 2004; Mathew Dearnaley, Kevin Taylor & Scott MacLeod, "Dalziel gone, but it's not over yet", Weekend Herald, Saturday, February 21, 2004, front page & p A5]
16 February 2004 The full text of the decisions in Ghuman v Registrar of the Auckland District Court (High Court Auckland, CIV2003-404-4373, 16 December 2003, Baragwanath J) and Sakran v Minister of Immigration (High Court Christchurch, CIV2003-409-001876, 22 December 2003, William Young J) have been added to the Case Search page of this website.
11 February 2004 The Court of Appeal for England and Wales has addressed the issue of objection to military service where that service involves acts, with which the objector may be associated, which are contrary to basic rules of human conduct as defined by international law. The court rejected an argument that it first be established that the conflict have been internationally condemned. Potter LJ held that courts should have regard to the realities of the particular conflict in which an applicant had refused to participate rather than to the specific question whether or not that conflict had yet been internationally condemned. If satisfied that (a) the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, had reached a position where combatants were or might be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community, (b) they would be punished for refusing to do so, and (c) disapproval of such methods and fear of such punishment was the genuine reason motivating the refusal of a refugee claimant to serve in the relevant conflict, then a court or tribunal should find that a Convention ground had been established. Rix LJ gave a concurring judgment and Carnwath LJ agreed with both judgments.
[Krotov v Secretary of State for the Home Department (11 February 2004) (CA)]
5 February 2004 109 relatives of Tampa boatpeople have arrived in New Zealand. They are related to 14 of the 40 youths who arrived in New Zealand as unaccompanied minors in September 2001. The 109 relatives have been given residence status as part of a humanitarian gesture.
[Angela Gregory, "Brave boys reunited in brave new world", NZ Herald, Thursday, February 5, 2004, front page]
28 January 2004 The Minister of Immigration, Hon Lianne Dalziel, has announced the introduction of a new immigration health and disability screening regime. The requirements will be phased in from March 2004 and will be fully implemented by the end of 2004. Waivers will only be available for people who are seeking residence on the basis of a family relationship to a New Zealander or because they are a refugee.
[Hon Lianne Dalziel, "New migrant health and disability screening rules", Media Statement, Wednesday, 28 January 2004]
28 January 2004 The Minister of Foreign Affairs, Hon Phil Goff, has announced that New Zealand will seek election to the United Nations Commission on Human Rights in 2009. He says that New Zealand is a principled defender of human rights and has excellent credentials for sitting on the Commission. Last year the International NGO, Human Rights Watch, said that New Zealand was "among the few to hold a firm and principled line on many key human rights issues". Mr Goff says membership will offer a unique opportunity to help advance the international human rights agenda. New Zealand currently chairs a working group in New York that is preparing a new convention for people with disabilities and is also playing a leading role in the process to conclude a Declaration on the Rights of Indigenous Peoples.
[Hon Phil Goff, "NZ to seek place on UN human rights body", Media Statement, Wednesday, 28 January 2004]
27 January 2004 The Minister of Immigration has announced that New Zealand is to accept twenty humanitarian cases from Nauru referred by the United Nations High Commissioner for Refugees. The group, each member of which has been declined refugee status by Australia, includes six Iraqi women who may later be joined in New Zealand by their husbands presently in Australia on Temporary Protection Visas. The Minister is reported as saying that her decision to consider the twenty cases on humanitarian grounds precedes the recent, highly publicised hunger strike in Nauru and was in no way a response to the demands by the hunger strikers. Instead the decision was based on the wish of the New Zealand government to contribute constructively to resolving resettlement needs in the region. The UNHCR considered the group of nine adults and eleven children to be particularly vulnerable and in need of permanent protection. None had been involved in the hunger strike. The group will initially be resettled at the Mangere Refugee Resettlement Centre in Auckland from early 2004 and will be counted as part of the existing Refugee Quota of 750 refugees a year.
[Hon Lianne Dalziel, "Humanitarian cases from Nauru", Media Statement, Tuesday, 27 January 2004]