Auckland Refugee Council

Ph: (09) 378 7434
Postal Box 78024
Grey Lynn
Auckland

Discussion Paper Volume 1 May 1998

What is the Auckland Refugee Council?

We are an incorporated charitable body established in 1989 to cater for the needs of refugees and people seeking asylum in New Zealand. Our Executive has strong representation from ethnic groups and former refugees.

Auckland is New Zealand’s largest city and the majority of refugees settle there. It is the usual place of entry, it contains some sizeable ethnic groups and the most diverse economy, etc. We therefore have tried to develop our work there first, but are now seeking to facilitate the establishment of a New Zealand Refugee Council.

In the course of our development, we have moved from being purely a “lobby group” for refugee issues and are now deeply involved in providing services to refugees in New Zealand. We have always believed such services should be “holistic”—ie, should provide for as many needs as possible at one service point, and we now operate a house for refugees which offers accommodation for the first six to twelve weeks after arrival, a medical clinic supervised by Dr Rasalingham, our President, free English lessons, and an advocacy service for helping asylum seekers present their cases to our Government. (That service has a 95% success rate compared to the “usual” 14%!)

We have always been foremost in supporting and collaborating with UNHCR and several of us have participated in UNHCR consultations both at home and overseas—PARINAC-PRE-EXCOM, etc.

Editorial

This special edition of our newsletter has been written by two of our Executive Council members. The first article is written by Bill Smith, Secretary of the Auckland Refugee Council and Refugee Coordinator of Amnesty International, New Zealand. The second article brings a lawyer’s perspective to some of the changes proposed by the New Zealand Immigration Service and is written by David Ryken, Barrister, Executive Committee member and Editor of our newsletter.

The special edition has been produced in response to legislative changes and reform, some of which have already been put in place, and others which are proposed.

Correspondence is welcome.

Acknowledgment

The Auckland Refugee Council would like to acknowledge the generosity of Malcolm Pacific for making possible through their generous donation the publication of this discussion paper.

Commentary on the Immigration and Refugee Cabinet Papers

Bill Smith

I Introduction

II Mass Boat Arrivals

III Proposal to “Improve Screening of Travellers”

I Introduction
The copies of “Cabinet papers” I have were also released by the Minister’s Office to the media, so there is some intention to provoke debate and response. Notwithstanding this, most of the action proposed already has the approval of Cabinet in principle. Some of it will require:

(a) Amendments to existing legislation—which could involve Parliamentary Select Committees etc (Immigration Act/Legal Services Act/Judicature Amendment Act).

(b) Budgetary adjustments—eg an additional $20 million over three years to cover the changes to Refugee Status Determination procedures.

It is noted that some other Government Departments are (obviously) in disagreement and/or uncomfortable with some of the proposals, eg Department for Courts, Foreign Affairs, Department of Corrections.

The papers also expect (page 10 I.54 “Management of Immigration Risks”) “some adverse reaction” from the airline industry and “voluntary sector groups who are involved in providing services to asylum seekers”. Mr Bradford and NZIS undertake to develop a “publicity strategy” to deal with that. The papers indicate that UNHCR approves of some proposals.

There has (at least, and at last) been some attempt to address points that concerned organisations have been raising for years, especially the “backlog” of asylum claims. Also in some areas, for example, airline fines, Cabinet approval was withheld pending further work.

Consultation

No consultation took place before this material went to Cabinet. Mr Bradford noted on 21 November 1997 that Consultation would be needed with the Coalition Partner spokesperson/National Party Caucus/New Zealand First Party Caucus but “is not required” with “other parliamentary spokespersons, parties, or interested groups”.

What do the Proposals Mainly Try to Do? (From a Refugee Perspective)

  1. Create contingency plans for the possible arrival in New Zealand of a group of “boat people” (probably Chinese) in the same way as has been happening in Australia for some years. These proposals are explicitly aimed at a response which would discourage such people from trying again in the future.
  2. Speed up the Refugee Status Determination Process and deal with the backlog of cases (see D J Ryken’s paper).
  3. Improve screening of travellers—stop people including asylum seekers, coming here without “proper documentation”; clearly this will stop some genuine refugees reaching New Zealand and the papers explicitly state that this is intended.
  4. Make it easier to remove people whose applications have failed (see D J Ryken’s paper following).
I propose to look at 1 and 3 of these proposals and evaluate them from:

(a) Human Rights impact

(b) Likely effectiveness—will they achieve what they seek?

(c) Cost effectiveness—could it be done better for less cost to taxpayer?

I will then add comment about peripheral issues raised in the papers, and also about implications for IGOs (eg, UNHCR) and NGOs (eg, ARCI, Amnesty and others).

II Mass Boat Arrivals

Background—The Australian Example

· This isolation and the spartan conditions, combined with what amounted to indefinite detention, was itself, said critics, inhumane and degrading. Australia was accused of “punishing” these people for seeking refuge.

· Although the Australian Government moved to improve conditions in the detention centres and to set some up closer to major cities, it has continued to attract criticism, including recently from the UN Human Rights Commission.

· Amnesty International has commented that Australia’s treatment of these people contrasts with its past good record of support of human rights world-wide.

· Of the total (as at October 1997) 577 had been granted Australia’s “protection” and 2290 “have departed Australia” (figures from Department of Immigration and Multicultural Affairs booklet “Refugee and Humanitarian Issues—Australia’s Response”, page 26).

The French Experience

Press reports have indicate two boatloads reached the French Territory of New Caledonia from Hainan, China, in November 1997 (32 men and seven women in one boat) and in the second boat 71, including 17 children, one a six day old baby girl).

On arrival, they were reported to have “cited China’s economic regime and stringent birth controls as their reasons for making the hazardous two month voyage” (New Zealand Herald).

The French authorities reportedly tried to “warn off” the boats from the islands with naval patrols; gave them food and water at sea and told them to leave the area. The wooden fishing boat twice refused French Navy instructions to change course away from French territory.

There were suggestions they had come with help from the local Chinese community. The people were detained in an unused barracks next to the airport until March 1998.

A “refugee specialist” was called in from France, presumably to examine their asylum claims.

On 23 March, New Zealand Herald/AFP reported that plans to repatriate them that day on a special plane had led to 60 staging a roof-top protest which police broke up using rubber bullets (nine of the boat people were injured).

“Dozens” of local people gathered for some days in the airport parking lot (members of a “committee for the defence of Chinese refugees and human rights”).

About 100 of these forced open the airport gates on 22 March and three chained themselves to the airport gates. A court (24 March) ordered the deportations stopped.

Auckland Refugee Council contacted UNHCR on 23 March to be told that the UNHCR regional office in Canberra had been briefing their Paris office about the New Caledonia situation.

Obviously New Zealand would wish to avoid such pitfalls if such a group do reach New Zealand.

It is therefore very timely and necessary for our Government to prepare contingency plans.

So What Have the Immigration Service Proposed?

At first, consideration was given to the trying to interdict the traffic at sea (as the French tried). This was dropped because New Zealand has obligations under the UN Convention on the Law of the Sea, the Convention on the Safety of Life at Sea, and the International Convention on Maritime Search and Rescue.

Merchant ships might also take people on board if their boat were in trouble and bring them here. The USA met strong humanitarian protests when US coastguards turned away Haitian boat people a couple of years ago. The Pacific is too vast to turn people away like that. The boats were apparently not particularly seaworthy.

On 12 November 1997 the New Zealand Cabinet rejected that idea. The papers stress that New Zealand must deal “firmly and promptly” with the first such boatloads (to discourage further attempts). They propose detention for all of them.

Legislation is to be passed permitting:

(i) Boarding boats, searching them and sending them into specified New Zealand ports.

(ii) Detaining asylum seekers while refugee claims are processed and arrangements made for repatriation.

The maximum possible detention under the Immigration Act is now 28 days, so amendment is needed to the Act to allow “periodic extension … upon application to a District Court Judge”.

Where would the asylum seekers be held?

“Police cells, prisons and court cells will have to be used for the adults—children would be separated and cared for by the Children Young Persons and their Families Service (CYPFS)”. (Consideration given to disused Psychiatric facilities or Defence facilities.)

The Department of Corrections says it frequently operates at close to maximum capacity. It may be difficult to house both genders together. The Minister of Foreign Affairs and Trade is concerned about Article 23 of the International Covenant on Civil and Political Rights of the Child (Article 9), both binding on New Zealand. The family is paramount in both documents (indeed this is frequently upheld by Government in its social policy statements).

UNHCR guidelines oppose detention except for identification and state security reasons. It should never be prolonged.

Comment

1. There seems to be a general assumption (in advance) that boat people from China will not meet Refugee Status criteria. Is this justified?

China’s Human Rights record is very bad; recalling also China’s requirements for pregnant women to abort certain pregnancies, such an assumption may not be readily supportable.

What research has gone on into the outcomes of Australian claims? (RSAA UNHCR.) What sort of claims do these people make? Are they predominantly from one area of China? Why is that? etc.

2. Were the views of the Chinese Community here sought and those of other (Ethnic Councils/communities)?

3. The break up of families is not acceptable or humane; it caused a particular furore when large groups of Muslim asylum seekers were detained during the Gulf War and their wives and children detained separately as part of processes that UNHCR Deputy Commissioner, Mr Stafford, criticised most trenchantly.

4. Our prisons (eg, Mt Eden Remand) are totally unsuitable and in any case overcrowded. There would be national and international shock if such people were incarcerated with common criminals and in such conditions.

5. It has to be remembered that what is proposed is detention of persons who have committed no criminal act apart from attempting, for whatever reason, to leave their home country and find refuge.

These proposals would create risks for New Zealand’s reputation and for the welfare of the asylum seeker.

The Australians tried the “tough but lengthy” approach; they had to change. The French tried the “short sharp” approach—it led to fighting and rioting. The authorities here have stated they will use prisons and will separate out children.

There has to be some place that can be made suitable for accommodating families together—disused small regional hospitals perhaps?

The Government needs to give some indication of the maximum period of detention that is likely to resolve these matters; they cannot drag out detentions as Australia has done.

There ought to be a time limit to the number of applications for extension a judge can be asked for or can grant.

The background to these Chinese claims must be researched. We should not allow a “climate of rejection” to build up. What arrangements are envisaged for conducting asylum determination for such groups—providing advocacy, interpreters, etc? will families be brought together for that process?

Obviously such arrivals are likely to be inconvenient and expensive (a million dollars for 50 people was quoted at page 8 item 29 of one briefing paper by NZIS) but surely the term “mass arrivals” is a shade hyperbolic?

One reflects on poor countries like Tanzania, that have taken in half a million Rwandans in a few days—that is a “mass arrival”! The Tanzanians first reaction was not how to stop them coming, but how to help.

The world’s suffering was bound to produce echoes sooner or later, even in a country as remote as New Zealand—how should we respond?

These are desperate human beings—otherwise why does a pregnant woman undertake a two month journey through the tropics crowded with 69 others on a flimsy wooden boat? They obviously do not (if events in Noumea are anything to go by) meekly accept arbitrary treatment.

What went wrong in Noumea? What did the French authorities do (or fail to do) which caused violence to erupt? (If there was some flaw in their process, we need to avoid it in ours.)

III Proposal to “Improve Screening of Travellers”

This does not appear in the “executive summary” of Mr Bradford’s officials (signed by him 21 November 1997).

It does appear, however, in Cabinet Paper (97) M46/11C(2) where the Cabinet notes the possibility of a system of instant fines for any airline which is found to be bringing improperly documented passengers to New Zealand but “agrees that further work” needs to be done before a decision can be made; and directs NZIS in consultation with the Department for Courts and Ministries of Commerce and Transport “to undertake further work on the introduction of instant fines and report back to EEP early in 1998” (EEP is the Cabinet Employment & Education Committee).

So the proposal did not receive cabinet approval. (Unless Cabinet has since approved this in documentation not yet available to us.)

Background

Cabinet Strategy Paper CSP (97) 191 21/11/97 says:

“The present prosecution system is time-consuming and expensive while the fines imposed on airlines are low”.

At page 3, item 15 of the “Management of Immigration Risks” paper, it is stated:

“There is anecdotal evidence that suggests airlines perceive New Zealand as a ?soft touch’ (and they therefore are ?insufficiently rigorous’ in ensuring passengers meet the requirements of s 125).”
NZIS efforts to change this have had “minimal effect”—airlines have “continued to infringe”, and the Service has therefore “in the last four months alone undertaken 19 prosecutions” (no indication of success or failure of these).

However, the Department for Courts, Ministries of Commerce and Transport and Tourism Board (having been consulted) believe “further work is required” before a decision can be made.

Comment—Human Rights Perspective

This is a clear example of what is know as “airline sanctions”.
  1. It will have the effect of making it more difficult for genuine refugees to reach New Zealand and lodge a claim.
  2. It makes no distinction between:
(a) Asylum seekers who are bogus and those who are genuine; this can only be decided in New Zealand and is the New Zealand Government’s responsibility not the airlines’.

(b) Asylum seekers and other travellers with false documents. The latter may be using the false documents to deceive New Zealand border control but the asylum seekers are using them as a desperate expedient to escape oppression—they usually have no alternative and admit the deception immediately they arrive.

The papers (page 8, item 43 of “Management of Immigration Risks” 24 November 1997) actually directly admit that their aim is “to prevent such costs arising including those who apply for asylum”.

This appears to contravene Article 14 of the Universal Declaration of Human Rights, which guarantees the universal right to seek and enjoy asylum (obviously one can only seek asylum in New Zealand if one can get to New Zealand). New Zealand should not be seeking to frustrate the exercise of a human right. Also Article 31 of the 1951 UN Refugee Convention forbids penalising people because they do not have the right documents.

UNHCR policy (set out in “Overview of Protection Issues in Western Europe”, chapter 3, Geneva, September 1995) opposed sanctions if they affect asylum seekers’ access.

Airlines and their staff should not be asked to be immigration police or to make judgements which can be a matter of life and death.

Amnesty International and the International Transport Workers’ Federation (ITF) have condemned airline sanctions (see Amnesty pamphlet “Human Rights have no Borders”).

The Cabinet Papers Claim That:-

The present fines are “low”. Presently section 125 of the Immigration Act allows for three months’ imprisonment and fines up to NZ$10,000 for the captain of the aircraft and NZ$20,000 for the airline. There is, I suppose, an implication that the courts have imposed past fines below these ceilings.

However:

Amnesty International’s paper on this subject “No Flights to Safety” (ACT 31/12/97) available from AINZ Auckland and Wellington, quotes procedures in various overseas countries, for example:

Austria: If a carrier does not immediately “provide information on an inadmissible passenger”—US$1600—not liable if the immediate departure of the passenger is undertaken (since 1991).

Belgium: Proof of negligence lies with the authorities—no carrier yet fined. Fine US$4500 per “inadmissible passenger” but only if at least five such are on the same flight (not including relatives).

France: Maximum US$1600 (since 1993) but not applicable if asylum is accepted or not classified as clearly unfounded.

Italy: If it can be proved that the carrier was negligent—US$160 to $140.

Netherlands:(From 1 January 1994) US$2500 or six months imprisonment if carriers have not photocopied certain pages of passports on so called “risk flights”. Has never been applied yet.

UK: Immigration (Carriers Liability) Act 1987 Fine—currently $2000 (US$3200) per passenger very strictly applied since March 1987. Fines totalling $US140 million imposed on airlines and shipping companies (no evidence of effectiveness of such measures in the AI paper).

Canada: US$3200 to cover authorities’ expenses—reduced if airlines will comply with authorities’ screening requirements.

USA: US$1000 to $3000—airline must send the passenger back immediately. US Authorities may be considering the Canadian system.

On the above evidence, it appears that far from being “low”:

(i) New Zealand’s present fines are among the highest in the world (but are ineffectual);

(ii) If this proposal were adopted, New Zealand would have fines (instantly imposed) twenty times higher than comparable countries, with levels of asylum seekers higher than ours.

The Amnesty paper also quotes ANNEX 9 to the Convention on International Civil Aviation (Chicago 1994) Ninth Edition 3.36.1, Notes 2:

“Nothing in this provision … is to be constructed so as to allow the return of a person

seeking asylum in the territory of a contracting state…”

And (3.37.1)

“Contracting states shall not fine operators … unless there is evidence to suggest that the carrier was negligent …”
And the 1992 Resolution of the Civil Aviation Section of the International Transport Workers Federation (ITF):

“Noted that many of those forced to seek asylum are trade unionists fleeing persecution

for legitimate trade union activities …”

“Condemns all practices of airline managements which use aviation staff in immigration control duties which are clearly beyond their proper employment duties”.

Amnesty asserts that airline sanctions breach the security of all those international agreements and declarations.

Other points made in the AI paper:

1. Discrimination:

Airline employees at embarkation points may often be forced to discriminate, singling people out on grounds such as race, skin colour, not speaking an international language, having only a one way ticket, appearing poor but making an expensive journey, etc. Thus passengers can be humiliated and intimidated.

2. Ineffectual:

Such laws have not necessarily prevented the “problem”. If anything, they seem to have forced people to resort increasingly to the use of false documents, etc, a vicious cycle, with airlines called on more and more to “police” countries’ borders.

Summary

No thought seems to have been given to the effect on tourism and the effect on New Zealand citizens abroad. Will the people of New Zealand really put up with third degree interrogations at overseas airports by petty and officious bureaucrats prancing up and down airline queues or over the counter?

It appears that the authorities, despite extremely high statutory penalties already in place, and having failed to persuade New Zealand courts to accept prosecutions or set fines at levels desired (the papers mention 19 prosecutions in four months—but no verdicts), want to move to an arbitrary fine system where they are judge and jury, and at a level higher than most countries. They admit their purpose is to stop asylum seekers getting here, a breach of our international obligations, despite the fact that only about 600 people claimed asylum on arrival in 1997—a tiny number by international standards.

If the government is determined to go ahead with this proposal, then at the very least it should (note the system in France described above) exempt from the fines any case where the passenger is subsequently found to be a “convention refugee” or is not classified as having a “clearly unfounded” case.

Proposed Reforms to Legislation and Procedure - A Lawyer’s Perspective

David Ryken

I Mass Arrivals

II Changes to Refugee Status Branch Procedures

III Time Limits for Appeals

IV Changes to Removal Procedures

V Judicial Review

VI Conclusion

The Auckland Refugee Council has various documents including decisions that have been made by Cabinet recently. There have of course, also been two recent press releases announced by the Minister of Immigration, first on 29 April 1998 and then again on 6 May 1998. Of the changes that have already occurred and some of those that are now proposed, the Auckland Refugee Council agrees that some are improvements, some however are not. The reintroduction of legal aid, for example, to first level case-work, for example, is welcomed.

There appears however to be no informed debate, in the media or elsewhere, of these issues. Given that refugee procedures in particular are not currently subject to legislation, then what has happened, with alarm, is that procedures are changed without consultative debate taking place. It is hoped that this will be remedied by the proposal by the New Zealand Government to subject refugee procedures to legislation later this year. In the meantime there have already been a number of changes which affect procedures.

This article will deal with the following issues:

(i) Mass arrivals

(ii) Changes to the Refugee Status Branch procedures

(iii)Time limits to appeal

(iv) Changes to removal procedures (removal of service requirements of Removal Orders)

(v) Judicial Review (time limits and removal of legal aid)

(vi) Conclusion

I Mass Arrivals
The concern about mass arrivals is probably ill-conceived given that New Zealand is so far away from any refugee source country that it is almost impossible for a ship to reach New Zealand’s shores from a refugee-source country without first refuelling. Nevertheless, as was reported in the media last year, a ship with a large number of asylum seekers did reach New Caledonia, apparently heading towards New Zealand.

Proposals have been made to deal with such persons en masse differently from those asylum seekers who arrive through our airports. In particular, it is proposed that where a boatload of illegal migrants arrive in New Zealand, then they should be detained. Proposals are being made to make changes to the Immigration Act 1987 so that detention can occur for longer than 28 days.

The following are raised as major concerns in response to the proposal to detain refugee applicants:

The Ministry of Foreign Affairs and Trade has raised its concerns relating to the proposal to separate members of families and to detain them in prison or police cells.

Such detention does not comply with Article 23 of the ICCPR or Article 9 of the Convention on the Rights of the Child (CORC).

The answer given however by NZIS to MFAT was that it would not be appropriate to house children in the facilities in which their parents are being detained. There is no alternative. Such an answer is no answer to the fact that the difficulties over housing refugee children in an “inappropriate” facility ie, prison, might point to the fact that holding refugees in detention is itself inappropriate, especially since nobody has committed a crime. In our society we do not place non-criminals into custody. The fact that New Zealand is planning to breach international obligations is a matter of enormous concern and shame. The answer given by the NZIS is that because we have decided to imprison refugees, we do not care if we do breach Article 23 of the ICCPR or Article 9 of CORC.

With regard to long term detention in general (for example, if the Refugee Status Branch does not decide within four weeks, say that a person is a refugee or not) this will amount to further breaches of international conventions and also our own New Zealand Bill of Rights Act, section 18. If a person is claiming refugee status and has that claim recognised, then it cannot be said that they are in New Zealand unlawfully. The lawfulness (under the Refugee Convention) of their stay is yet-to- be determined. Therefore section 18 would in fact apply. That is to say that they have a right of freedom of movement and residence. If NZIS deprives a person of the right to movement then damages might be available for a breach of the Bill of Rights (Baigent’s case). Such persons may well consider, once granted refugee status, suing the Government.

More importantly however, if a person turns out to be a refugee then a period of incarceration whilst waiting for such an application to be determined will amount to arbitrary detention. New Zealand is obliged by international convention not to carry out arbitrary detention. See for example, the International Covenant on Civil and Political Rights (ICCPR) Article 9. Even if detention is statutorily sanctioned by a Court, such detention may be arbitrary if it makes no distinction which links the detention to whether or not the detention is justified (in the case of genuine asylum seekers, detention would not be justified).

The proposal to place mass arrivals in detention where that detention is but for the shortest period of time, will amount to clear breaches of New Zealand’s international obligations under the various treaties. The only time at which a country is permitted to derogate from the right to freedom from arbitrary arrest or detention is during a “public emergency which threatens the life of the nation and the existence of which is officially proclaimed”. It can hardly be said that the arrival of a few hundred asylum seekers is going to destabilise New Zealand’s security or that it would bring about a public emergency.

One of the problems faced in determining who is and who is not a refugee is that very often the question is a matter of degree. The Minister of Immigration would have New Zealand believe that where a person has claimed refugee status and is found not be a refugee, that they are likened to a criminal. Such is not the case and certainly very often persons who have claimed refugee status and failed to receive refugee status, have done so quite innocently and in the genuine belief that they would be considered to be refugees.

For example, take the person who has suffered all his life from discrimination in his or her home country and finally decides he or she wants to try and claim refugee status in another country. It might be a question of degree as to whether or not the case involves harm which would warrant the term “persecution”. Ordinary citizens may not be in any position to understand the complexities of refugee law or that their case in fact might not be successful but might be marginal.

Some people also flee who have a genuine subjective fear but on analysis it is found that that fear is not objective or, for example, conditions in the home country have since improved (eg, whilst in transit in an intermediate country). In many cases where refugee status is not obtained (except for those few where the application is fraudulent to begin with) refugee applicants hardly need to be punished for claiming refugee status.

In many cases that are declined therefore, an honest belief in the troubles encountered in their home country have led to the refugee applicant’s displacement. Sometimes individuals have the idea that humanitarian cases are enough to obtain refugee status and do not understand the technicalities of proving they have a well-founded fear of persecution.

The assumption therefore that a large number of boat people will not obtain refugee status and would therefore deserve to be held in custody is rejected, even if a large number are not successful in obtaining refugee status. The treatment in keeping them in custody will still amount to arbitrary inhuman and unfair treatment.

The notion of holding mass arrivals in detention is therefore opposed, except for the briefest of periods, ie, under the current provisions of the Immigration Act, or where arrivals reach epidemic proportions such that it could truly be said that such arrivals destabilise the country and create a public emergency (which the Auckland Refugee Council doubts very much could ever happen).

II Changes to Refugee Status Branch Procedures

Some of the changes to the RSB procedures are welcomed by the Auckland Refugee Council. There is, however, a note of caution that needs to be expressed. The media release on 27 April 1998 resulted in an amendment circular to the New Zealand Immigration Service Operational Manual. The many changes effective from 30 April 1998 are as follows:

Although the media release explained that the procedure dispensing with the requirement of a personal interview would only be used where “asylum cases appeared to be without solid foundation”, this requirement has not been placed in the amendment circular. The amendment circular simply states that the immigration service must advise the applicant of the reasons why the case will be decided on the papers and without an oral interview. Obviously, “on the papers” decisions therefore are planned for mass arrivals.

The above is an example of extremely shoddy and hasty amendments being pushed through. The Minister, in his media release, has said one thing; the amendment circular has done something else. In essence, it is agreed that if a case is clearly abusive, (for example, second or third times cases which are simply lodged in order to keep the person in New Zealand) then such persons are not deserving of a further interview. Another type of abusive claim, for example, might be from countries where there is no recognised refugee problem, for example, claims for refugee status from some of the Pacific Islands, the US, etc.

III Time Limits for Appeals
The reduction of an appeal period from 20 working days to 10 working days makes the period within which to appeal one of the shortest known to New Zealand’s legal system, if not the shortest (the writer knows of none shorter). If persons are genuine refugees then they ought to have the opportunity to appeal.

By reducing the period for appeal, the possibility of problems with mail, etc., increases. It is extremely difficult also at times for individuals to seek legal advice. Sometimes individuals have to travel large distances to see their lawyer, and sometimes their lawyer or counsel may not be immediately available for a few days. In terms of saving ten days out of a total of what sometimes is a procedure involving a year or years, none of which is the fault of the refugee applicant, a saving of ten working days seems to be extremely petty. The risk of persons not receiving their mail through their advocate increases.

Five Days for Persons in Custody

The reduction of the period allowed for appeal for those in custody however, is even more outrageous. What possible rationale is there for the idea that persons who are in custody ought to have less period of time to appeal.

There is no other area of the law in New Zealand known to the writer where because a person is in custody they are penalised in pursuing their legal rights. The whole concept is totally illogical. For example, consider the position from the prisoner’s point of view. If he or she is to obtain legal advice whilst in prison, then of course he or she must first make contact with a specialised refugee lawyer and get that lawyer to come to the prison, usually with an interpreter (and interpreters are not available at the drop of a hat), seek advice, and then make a decision as to whether or not an appeal should be lodged. What say the prisoner does not have a phone card or does not speak English, relying on a weekly visit (if he or she is lucky) from a charitable person who does speak his or her language.

Clearly persons that are in custody are in a worse position and have reduced capacity to obtain legal advice concerning an appeal. An important issue for example, is whether or not such an appeal would have merit that it would warrant legal aid. If an asylum seeker arrives in this country without any money at all, he might not be able to afford a phone card in order to ring his lawyer.

Moreover, notification of the prisoner may be extremely difficult particularly when correspondence to the prisoner is vetted and checked by the prison superintendent and may or may not arrive in the prisoner’s cell for several days.

For the unrepresented appellant therefore in prison, the change to a five working day period of appeal is outrageous and is a good example of changes being made throughout the Immigration Service in a knee-jerk reaction in order to try and appear to be “getting tough” and yet at the same time, it is clear, potentially working to the detriment of those who are possibly genuine refugees.

The possibility of a genuine refugee not having his or her notice of appeal lodged in time is greater. It is only hoped that the Refugee Status Appeals Authority will continue to have the power to allow leave applications for leave to appeal out of time in appropriate circumstances. The possibility of a person being deprived of an appeal and being a genuine refugee is however increased. He or she is likely to unaware they may apply for leave to appeal out of time. How many lawyers in New Zealand are aware that the Refugee Status Appeals Authority exercises this jurisdiction as part of its regulation of its own procedures provisions and its own case-law. The loss of just one genuine refugee would amount to a breach of the Convention relating to the Status of Refugees, bringing great shame on New Zealand.

IV Changes to Removal Procedures
First, it is proposed that the service of a removal order process be altered. It is proposed that a person has a statutory obligation to leave upon the expiry of their permit. The person who has drafted these comments however and has come to this conclusion obviously does not understand the complexities of permit renewals and the fact that for a long period of time it can be uncertain as to whether or not a person has a current temporary permit (eg, pending final determination of an immigration officer).

The suggestion that a person should be subject to removal action without the need to be notified that the person has no legal status in New Zealand takes away an important right which potential immigrants currently hold. It would encourage unfairness on the part of immigration officers. Taking away the right of appeal against removal procedure will make it easier for individuals to suffer abuse by immigration officers.

For example, the writer has seen a case where a New Zealand Immigration Service officer intentionally posted out to a rural address a temporary permit with only a few days left on the temporary permit before it would expire. By the time the people received the passport in the mail, the previous temporary permit had already expired and this then made it impossible for a further temporary permit to be obtained.

An application could then have been filed under section 35A claiming that the expiry of the permit had occurred unfairly. While the 35A application is being considered (which could take three to six months) should the person consider that he or she is unlawfully present in New Zealand or not? How does such a person know if his or her appeal period is running?

Other cases occur not through the fault of the immigration officer but for example, because the person is in hospital or has an accident and is unable to arrange filing of a temporary permit extension. Another example is given where a criminal element holds the person’s passport in order to extort money. What about immigration consultants who unlawfully hold on to the person’s passport preventing the person from renewing his or her passport?

Reduction of the Appeal Period From 42 to 28 Days

It is suggested that the time within which to appeal after notification should be reduced to 28 days. Appeals against removal, however, very often involve information that an individual needs to obtain from overseas (especially for refugee declinees who often nevertheless have problems back home). For example, there may be some factor, similar to that affecting refugees, which makes a return to the home country undesirable or dangerous.

It becomes difficult to obtain such documentation to establish the evidence from which an appeal against removal might be based within a 28 day period. A 28 day period is impractical for that reason alone.

A further difficulty is that for an appeal against removal to be successful there may also be factors affecting other New Zealand citizens or children. Medical reports and psychiatric reports may be of assistance to the Removal Review Authority. It always takes time to schedule an interview with a professional and again, 28 days is not practical.

The current 42 days is at times, in the writer’s experience, stringent enough and ought to be left alone. The Removal Review Authority seldom delivers decisions within 12 months after filing and very often much longer periods are experienced. If the Government wishes to reduce the period it takes to process removal matters then, with respect, it should reduce the decision-making time to a much more reasonable one or two months. The reduction from 42 days to 28 days for the appeal period is, in comparison, a drop in the bucket.

The paper writer for the Minister of Immigration has compared the appeal period with those in the civil courts and other Acts, eg, the Summary Proceedings Act. As indicated above however, normally civil and criminal appeals, etc, involve evidence and information which is available here in New Zealand. Appeals against removal are different. (Further, I note that the Minister of Immigration has not been guided by normal periods of appeal in the case of refugee applicants in prison etc—see commentary above.)

V Judicial Review

First reference is made to the discussion in the Cabinet papers of the fact that only one in seven judicial review proceedings in the High Court seems to be successful. This is taken as an indication that the procedure is abused. I would have thought that if one in seven are successful then this is an extremely good reason for retaining the right to judicial review in all cases because it shows a significant rate of abuse of process on the part of the Immigration Service. (Murder trials probably have a similar rate of success but nobody is suggesting the abolition of legal aid for criminal work.)

The truth is however that for a long time the policy of the Immigration Service legal sections (both in Wellington and in Auckland) has been to settle clear cases of unfairness and unreasonableness in the decision-making process and not allow those cases to come to trial. This is because of the publicity and precedent value. Accordingly, most of the cases that do come before the High Court or the Court of Appeal are not clear cases of unfairness or abuse (which are settled before they come to trial) but those cases which are marginal.

If all those cases that are filed were to go to trial therefore, then the rate of success would be far higher. Thankfully however, in clear cases the Minister of Immigration and his advisers have often commendably settled such cases, thus avoiding further costs. A careful examination of the figures and combining the figures of those that settle with those successful after trial indicates a success rate of one in three and not one in seven. Abuse of human rights and breach of natural justice is alive and well in the NZIS (moreover Cabinet has been misled).

The Ministry of Justice and Department of Courts are opposed to the removal of rights of appeal from the Removal Review Authority and the Residence Appeal Authority because these rights of appeal increase the quality of decisions made. It is submitted that this is the correct approach. Both appeal rights and the rights to judicial review are extremely important in keeping the decisions in the Tribunals and in the Immigration Service of a high standard.

The removal of review and appeal rights therefore will leave immigration officers open to making decisions in an arbitrary, unreasonable, and unfair way, or as they think fit. The supervisory function of the High Court in exercising its function of judicial review is an extremely important part of our system. It affects not only the individual cases that come before it, but encourages fairness and reasonableness throughout the system. The suggestion by the Immigration Service and the Minister of Immigration of tampering with this is therefore based on a misplaced notion that large numbers of persons are extending their stay in New Zealand by clogging up the courts with meritless immigration cases. Where a case is indeed lodged and has absolutely no merit, then particularly where the court has a fast- track system (such as now operates at the High Court at Auckland) this hardly gives any time for an extended stay. The Legal Services Board is now also far more stringent in granting legal aid to cases and Co

The comment made in one of the briefing papers therefore by the NZIS that “High Court appeals are unnecessary, expensive, and time consuming and create perverse incentives for persons with legal aid to use the system to buy time in New Zealand” is totally wrong and not supported by the facts. If a person does not have merit in a case they are not going to get legal aid. Further, if Counsel were to mislead the Legal Services Board as to the merits of cases, then that Counsel will soon find it difficult to get legal aid grants, or could be open to censure by the District Law Society, perhaps upon complaint by the NZIS, etc. It is, for example a breach of our Code of Ethics (Rule 7.04) to use legal procedures for improper purposes. Lodging an appeal that has no merit is not proper. If such cases occur then the NZIS can lodge a complaint with the Law Society.

An appeal is not the same as a judicial review. The review jurisdiction does not necessarily extend to errors of law made by Tribunals although in practice, both an appeal and a judicial review ought, almost always, to be heard at the same time. Nevertheless High Court appeals on a point of law are quite distinct from the review jurisdiction. If there has been an error of law, the appellant may succeed on appeal but not on a review, whereas if there has been unfairness or unreasonableness but no error of law, then a person may succeed under review. It would easily be conceded however that persons should, if they are going to bring judicial review of a decision, as well as an appeal, bring both at the same time. Perhaps there ought to be a rule that where review is sought of a decision of the Removal Review Authority, or the Residence Appeal Authority, that such reviews be heard together with an appeal on a point of law unless there are good reasons to the contrary.

The true agenda of the NZIS here however is to stop ordinary immigrants from exercising their rights of judicial review. Why would they do that unless the real agenda is that the NZIS does not like coming under the spotlight and scrutiny of the High Court. Nobody likes being criticised or having their decisions examined. It is however reprehensible that the NZIS appears to be taking steps to bring a halt to, or stifle what is a crucial process which works against abuses of the bureaucratic process. The proposal by NZIS to do away with judicial review of immigration decisions is akin to the police seeking to do away with the Police Complaints Commissioner or the jury system.

Time Limits to Judicial Review

Immigrants often have difficulty in obtaining specialised legal advice. When they do get legal advice the legal adviser often has to obtain further information from overseas, first obtain a copy of the client’s file from NZIS and so on. Where there are no time limits and the individual is not under removal, most counsel will conduct full enquiries before filing proceedings, as we are obliged to do under our code of ethics.

The imposition of time limits for filing judicial review matters will cause proceedings to be filed before full inquiry is completed. In many instances also the injustice that occurs—eg, an unfair decision made by the Immigration Service officer, may not have been conveyed to the individual properly. For example, what happens when the immigration consultant or lawyer fails to notify the client of the decision?

To impose time limits on judicial review proceedings will inevitably result in some cases being without a solution and injustices that are not rectified. The imposition of time limits on Review proceedings would also therefore seriously derogate from the New Zealand Bill of Rights, section 27 right of access to judicial review (by removing such access to certain people).

The Removal of Legal Aid to Immigration Judicial Review

As indicated above, the removal of legal aid, as proposed by the Minister of Immigration, will derogate from the entrenched right of access to justice built into the New Zealand Bill of Rights Act 1990. Like many of the above proposals this will also seriously weaken the Rule of Law in New Zealand.

The officials who have advised the Minister of Immigration on this point are totally misguided. Section 27(2) of the Bill of Rights Act clearly states:

“Every person whose rights, obligations, or interests protected or recognised by law

have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.”

Time limits and the withdrawal of legal aid will result in obstacles in certain cases to the right preserved by the New Zealand Bill of Rights Act. Such legislative proposals therefore derogate from the rights of individuals to access to justice. The whole of New Zealand ought to be seriously concerned that a New Zealand Government department, without consultation, is putting forward proposals to take away the rights of individuals in our country and their right to justice. Such a move clearly threatens the Rule of Law in New Zealand.

VI Conclusion
Some of the proposals for changes are welcomed. The reintroduction of legal aid for the first level refugee status determination procedure is welcomed. The fast- tracking of cases which are clearly abusive at the Refugee Status Branch is also welcomed provided that the Refugee Status Branch does not abuse its discretion in determining what cases are abusive and what are not, or provided that it does not become simply a procedure to be adopted in any but the clearly abusive. There seems to be no logical reason why the procedure should apply to mass arrivals.

New Zealand’s obligations under international treaties and Conventions however seem unimportant to those who are making a number of proposals to changes in reaction to the possibility of a mass boat arrival and the proposal to follow in Australia’s footsteps and to throw such people into what will inevitably amount to long term detention.

The reduction of times for appeal in the refugee procedure including a five day procedure for those unfortunate enough to be imprisoned, are all serious reductions to the rights of individuals who may find themselves the subject of wrong decisions carried out by overzealous immigration officers who very often view their primary function as protecting our borders rather than looking at a case from a humanitarian point of view to determine whether or not a person is in need of protection or whether there is a risk of serious harm in the home country.

Appeals and reviews not only turn over wrongful decisions but they also keep decision-makers in either the tribunals below or the immigration officers themselves, from delivering decisions which are inherently unfair, unreasonable, and unreasoned. Nobody likes to be criticised by a court or tribunal above and accordingly the supervisory function of such bodies is extremely important in ensuring that our officials do not abuse their power but consider matters evenhandedly, fully, and in accordance with the law. These are important components in our legal process and citizens throughout New Zealand must strive to maintain our legal system with its checks and balances. Access to justice is entrenched in our New Zealand Bill of Rights Act, section 27.

Some of what is proposed by the New Zealand Immigration Service is in direct contravention to section 27 of the New Zealand Bill of Rights Act. There seems no logical reason why a person who is an overstayer, a refugee, or a temporary permit holder should be treated any differently from a resident or citizen. Such persons are entitled to have matters that affect them and decisions that are made by immigration officers and tribunals decided in accordance with law and subject to the principles of natural justice. With respect, the law of judicial review ought to remain as it is. Legal aid must be made available for those cases which have merit, otherwise access to the right to justice under section 27 of the Bill of Rights Act is also thereby hindered. Time limits for judicial review will also limit access to justice in cases where time has run out through no fault of the litigant.

In conclusion therefore, New Zealand must examine more carefully its international obligations under the various Conventions and be willing and able to ensure that those obligations are met in our legislative proposals and in our domestic legislation. Sir Geoffrey Palmer speaking on the topic of human rights and the New Zealand Government’s treaty obligations at a seminar recently observed that New Zealand has been enthusiastic to embrace the norms of international Conventions but not see those norms effective throughout New Zealand. Sir Geoffrey has challenged the New Zealand Government to rectify its stance if it is to avoid trenchant criticism in the future.

New Zealand’s adoption of detention facilities for mass arrivals (with the proviso of a very short stay as being possibly acceptable) is an example of domestic legislation which will ignore New Zealand’s international civil and political human rights treaty obligations. New Zealand has agreed internationally that Government must treat individuals in accordance with certain principles. Those principles are set out in our international conventions. We are then preparing in our domestic legislation to ignore those principles and to act in a different way. The same can be said about the proposal to limit legal aid and to take it away from those who seek judicial review of immigration decisions. The appeal right for asylum seeker prisoners of only five days, already in force, is also a significant derogation from the right of access to justice. The Immigration Service has put forward proposals to Cabinet for changes to domestic legislation which do not comply with our international obligations. Our i

Editor’s note: The Auckland Refugee Council welcomes any correspondence in reply to the above articles. When writing to the Auckland Refugee Council please indicate if you are willing to have the letter included in our next newsletter.

Caveat: The views and opinions expressed in this paper are not necessarily the views and opinions of the ARC, Amnesty International or any other organisation.