Asher Davidson


A dissertation presented in partial fulfilment of the requirements of the
University of Auckland for the degree of Bachelor of Laws (Hons)

June 2000


The power to control State borders is a jealously guarded sovereign right, and States are allowed to detain aliens they do not wish to admit.  However, the Refugee Convention, which New Zealand has ratified imposes an obligation which apparently places limits on the right to detain.  Article 31(2) of the Convention gives special protection to a class of refugees whose conduct in seeking asylum has shown the signs of good faith.  This narrowly defined group may only be detained in situations where it is believed to be "necessary".

This dissertation first examines the scope of Article 31(2).  In particular, the criteria refugees must satisfy to be eligible for protection from detention under Article 31(2) is discussed.  In addition, the degree of protection offered is analysed in an attempt to define when detention will be necessary.

The dissertation then looks at the consistency between Article 31(2) and existing New Zealand law and practise.  It is argued that New Zealand law fails to both identify and give adequate protection to those asylum-seekers who meet the criteria.  The paper then canvasses potential ways in which the Court could bring New Zealand law into line with the relevant obligation.  Although there are several methods that could be successful, it is questionable whether the Courts would be prepared to take the step of requiring consistency.

The final part of the dissertation addresses arguments in favour of maintaining the status quo and for changing the law to implement Article 31(2).  It is argued that specifically providing protection from detention for those people who meet the criteria of Article 31(2) would have minimal detrimental effects, yet would avoid much hardship on the part of the refugees New Zealand agreed to protect through ratifying the Convention.


1. Introduction

2. Who is Covered by Article 31(2)?

3. Nature of the Protection 4. New Zealand Law and Policy 5. Potential Role of the Courts 6. Options for the Future of Article 31(2) in New Zealand Law 7. Conclusion


1.  Introduction

[1] A number of recent events have brought the issue of detention of asylum-seekers into the public arena.  In 1999, changes to the Immigration Act were urgently brought forward due to fears of the arrival of a group of “boat people” who would likely claim refugee status in New Zealand.  The legislative changes were designed to extend the period for which such people could be detained.    A second case that captured the attention of the media was that of a group of asylum-seekers who commenced a hunger strike in October 1999, in protest at being detained in Mount Eden prison.  Such incidents raise a number of questions about how New Zealand is entitled to treat the growing number of asylum-seekers who arrive here each year.  Can refugee claimants be detained?  In what circumstances is such detention allowed?  Are there different standards that should be applied to asylum-seekers as opposed to other aliens?  Are there different standards to be applied to some asylum-seekers as opposed to others, claiming the same status?  What are New Zealand’s international obligations in this respect?

[2] While it may be argued that detention of any illegal alien is undesirable, this paper is concerned only with a particular class of persons who are singled out in international law for special protection against being detained.  The specific focus is New Zealand’s obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.1 The Convention contains a provision specifically restricting the circumstances in which certain refugees may be detained.  Article 31(2) states in relevant part:

[3] The Article contains a number of limitations that curtail its applicability.  For instance, the reference to “such” refugees indicates that not all refugees will be protected by the provision.  In addition, even for those who qualify as “such” refugees, detention which is deemed “necessary” is allowed.  Nevertheless, the importance of the Article for those who are covered should not be understated.  The adverse personal impact of detention, discussed in chapter 6.2.2, is potentially huge, particularly in the case of those who have already suffered persecution.  Article 31(2) creates an obligation on States to restrict detention practises, albeit in a limited number of cases.

[4] After discussion of the interpretation of Article 31(2), in respect of who is covered and what the obligation entails, the paper will examine the current law in New Zealand.  In particular it will look at whether the law and policy is expressly consistent with New Zealand’s obligation under Article 31(2), and if not, the ways in which there is a departure from the Convention standard.  Chapter 5 then looks at the possibility of the Courts finding that the obligation is owed, notwithstanding the absence of express consistency.  Finally, arguments for and against expressly giving effect to Article 31(2) in New Zealand are addressed.

2.  Who is Covered by Article 31(2)?

2.1   Refugees

[5] In order for the Refugee Convention to be relevant to a detention decision, there must be an issue surrounding the person’s refugee status.  Each year, New Zealand receives a number of quota refugees, who have their refugee status accepted en masse at the recommendation of the United Nations High Commissioner for Refugees (UNHCR).2  Since the arrival of this group is approved before departure, there is no real issue surrounding their not being granted permits and becoming subject to detention.  On the other hand, New Zealand also receives a large number of spontaneous refugees, or asylum-seekers, who apply for refugee status on or after arrival in the country.  As will be discussed later in this chapter, this group will often not have valid travel documents, bringing into doubt their eligibility for a permit to make their presence in New Zealand lawful. It is therefore the asylum-seeking group with which this paper is concerned.

[6] It is not intended to provide here a summary of the intricacies involved in determining refugee status.  Rather, the definition is discussed briefly to provide some idea of the type of person who may be the subject of a decision regarding whether or not to detain.  In New Zealand, whether or not a person is a refugee is determined strictly in accordance with the definition contained in the Refugee Convention.3 This document provides its definition in Article 1, where it states:4

[7] First, it will be immediately evident that only a relatively small group of persons are eligible for refugee status. In order for the claim to be successful, the claimant must be outside their country of origin, establish they have a well-founded fear of what meets the definition of persecution, and that the basis for that persecution is a Convention reason. The Refugee Status Appeals Authority has accepted Hathaway’s approach to determining whether persecution exists.5  For the purposes of the status determination process in New Zealand then, the definition of persecution is “the sustained or systemic violation of basic human rights resulting from the failure of state protection”.6

[8] Though the Convention only promises protection to a certain class of persons, there are many claimants for that status.7 This has a number of consequences.  First, even if the claim is eventually rejected, the person may still have suffered greatly.  There are a number of reasons why the applicant may not be eligible for refugee status.  For instance, if they face persecution for a reason falling outside “race, religion, nationality, membership of a particular social group or political opinion”, or if the persecution they suffered in the past is no longer a threat at the time of determination they cannot be a refugee.

[9] Since the definition requires complex factual and legal deliberations, claims take a significant amount of time to finalise.8  There may be a quite lengthy period of time in which the claimant's refugee status remains unknown.  If claimants are to be detained for the duration of the determination process, they are potentially facing prison terms of a year or more.9  Whether or not it eventuates that the person is a refugee, there are legitimate concerns about detaining those who apply in good faith for such a long time.  While this paper is concerned with whether detention may be in breach of international obligations, rather than the humanitarian aspect of detention, it is important to recall the reasons why the Convention offers protection from unnecessary detention.10

2.2   Claimants for Refugee Status

[10] While there may be moral concerns about detaining people before their refugee status is recognised, do any international legal obligations attach before this point?  This question can be answered affirmatively in two ways.

[11] First, if a refugee claimant is detained in a way that is contrary to the Convention, the country’s international obligations are breached, irrespective of the fact that the person’s refugee status was not known to the country at the time of detention.  The refugee definition contained in the Convention is declaratory, rather than constitutive.11  A person becomes a refugee as soon as he or she meets the criteria identified above, and not when that status is recognised by the refugee determination process in the host country.  The UNHCR states that a person “does not become a refugee because of recognition, but is recognized because he is a refugee”.12

[12] The declaratory nature of the definition means that the obligations contained in the Refugee Convention attach to refugees even before their refugee status is recognised by the host country.  This has the effect that the host country must effectively treat refugee claimants as if they were actual refugees.  The UNHCR states:13

[13] This assumption is apparently accepted by the New Zealand government.  The Immigration Act 1987 states that neither refugees nor refugee status claimants may be removed or deported from New Zealand.14 Similarly, immigration officers must have regard to the Convention when dealing with both refugees and claimants for that status.15

[14] Second, in the specific context of Article 31(2), the travaux preparatoires indicates the drafters intended the protection to be afforded to refugee claimants.  Grahl-Madsen notes that had they not envisaged this, it would have been meaningless to discuss whether Article 31(1) “would prevent a government detaining a person who entered the country illegally, pending a decision whether that person was to be regarded as a bona fide refugee”.16  If 31(2) did not apply to refugee claimants, but only those who had already been determined to be refugees, the State’s right to detain an asylum-seeker would not be at issue.  As Grahl-Madsen points out, if the protection were to be afforded only to those who were already recognised as being refugees, the provision would be “to a great extent a dead letter”.17
2.3   Unlawful Presence

[15] Article 31(2) refers to “such refugees”.  The use of the term “such” has the effect of drawing upon the subject matter of Article 31(1).18  That provision is concerned with protecting refugees from being penalised for their illegal entry, so long as they satisfy several requirements, which are discussed below.  Primarily then, “such refugees” are those who are unlawfully in the country because they have entered, “or are present in [a state’s] territory without authorisation”.19  Refugees who are lawfully in a country are guaranteed freedom of movement by Article 26.

[16] Why is it that the drafters of the Refugee Convention wished to give protection to refugees who entered a country illegally? Article 31 acknowledges that it will not always be possible for refugees to comply with the strict immigration requirements for entry to a country.  Remembering that they are fleeing persecution, there may not be time to obtain valid travel documents, or it may simply not be possible.20 The UNHCR notes that this impossibility makes their failure to comply with immigration formalities fundamentally different to the comparable failures of other aliens.21 Because of the impossibility of travelling legally, the Refugee Convention offers protection for those who are forced to travel illegally.

[17] However, not all persons travelling without valid travel documents are protected by Article 31.  The restrictive criteria in Article 31(1) and carried over to Article 31(2) represents the best way, in the opinion of the drafters, by which States can determine those who deserve the special protection the Article offers.  These criteria are discussed below.

2.4   Application of Restrictive Criteria

[18] The term “such” suggests that the restrictive criteria in Article 31(1) similarly restrict those eligible for protection under Article 31(2).  Article 31(1) states:22

[19] The requirements that must be satisfied by refugees claiming to be exempt from penalties are that they: [20] A refugee must satisfy all three requirements if he or she is to enjoy the protection from penalties offered by international law.  These requirements are discussed below, but the prior question is whether the restrictions are intended to apply in the context of Article 31(2)

2.4.1  Do the Criteria Apply?

[21] The first aspect that raises doubt as to the applicability of any of the above qualifications to Article 31(2) is that it makes for an apparently strange provision if worded negatively, which is not true of Article 31(1).  Article 31(1) could sensibly be read as saying that if refugees have not come directly from a persecuting country, not presented themselves to the authorities without delay or can not show good cause for their illegal entry they may be subject to penalties for such entry.  However, reading Article 31(2) in a negative manner would allow States to impose unnecessary restrictions on the movements of refugees who fail to live up to one of those requirements.

[22] While the ordinary principles of interpretation would show “such” to import all the requirements of Article 31(1) to Article 31(2), there is an argument to be made that that is incorrect. The travaux preparatoires shows that the Drafting Committee proposal was worded in the following way:23

[23] Grahl-Madsen argues that since the “such refugees” statement had achieved its final form before the Conference changed Article 31(1) to include the requirement that the refugee have come directly from a persecuting country, that requirement is not carried over to Article 31(2).24  In addition, he notes an absence of evident intention in the travaux preparatoires to restrict the application of Article 31(2) in the same way as Article 31(1).25  For instance, there is discussion by the French representative regarding the “first paragraph of the Article involv[ing] a voluntary act” while saying nothing about that requirement in the context of paragraph 2.26  Grahl-Madsen therefore concludes that “it cannot be a condition for the application of paragraph 2 that the person in question has presented himself without delay or that he shows ‘good cause’ for his illegal entry or presence”.27

[24] Despite Grahl-Madsen’s observations, it would seem now to be accepted that the restrictive criteria in Article 31(1) are carried over to restrict the application of Article 31(2).  First, the UNHCR accept the restrictive criteria apply.  In their guidelines on detention, there is discussion of the criteria and how they should be interpreted.28  There would be no point to such an exercise if the UNHCR was of the opinion that Article 31(2) was not restricted by the requirements of coming directly, presentation without delay and good cause for illegal entry, or did not believe States could legitimately interpret Article 31(2) in such a way.

[25] Secondly, argument has been made in New Zealand courts that the restrictive criteria do apply in the context of Article 31(2).  In Abu v Superintendent of Mount Eden Woman’s Prison, counsel for the Crown argued that Article 31(2) did not apply in the case before the Court, since the claimant had not come to New Zealand directly from a persecuting country.29  The claim that that requirement applied in the context of detention was neither approved nor dismissed by the Court, but it illustrates the way in which the Crown would advocate a restrictive approach to the Article's application.

[26] Third, in debate among the members of the Executive Committee on the issue of detention of asylum-seekers, the view was expressed by some States that they interpreted Article 31 to apply only to those who had come “directly” from a persecuting country.30  This indicates the applicability of the restrictive criteria to Article 31(2) is recognised internationally.

[27] Lastly, though the travaux preparatoires may not indicate a specific intention to restrict the application of Article 31(2), there is a theme throughout the drafting process of prescribing quite minimal obligations on Contracting States.  As will be seen when the nature of the criteria is discussed below, imposing the Article 31(1) restrictions means that only a very narrow band of persons are protected by Article 31(2).  However, it is important to remember that at the time the Article will become relevant, the person’s refugee status will not yet have been determined.  As was discussed above, refugee claimants are protected from unnecessary detention, notwithstanding that only a few of those may actually be recognised as refugees following the determination process.  Applying the restrictive criteria in Article 31(1) narrows the group of persons afforded protection to those who have shown good faith to that point.  Those people are singled out for special protection under the Refugee Convention.

[28] The best way to think of the provision is that if an asylum-seeker does meet all of the requirements noted, the justification for their detention must be of a higher standard than for other aliens. All persons are given some degree of protection by international law, for instance against arbitrary detention.31  Article 31(2) should be seen as giving an extra layer of protection to those whose actions in obtaining illegal entry are entirely understandable.32

[29] The following sections look at the restrictive criteria as they apply to those claiming to be protected by Article 31(2).

2.4.2  “Coming Directly” from a Persecuting Country

[30] The first requirement is that the refugee must have come “directly from a territory where their life or freedom was threatened in the sense of Article 1”.33  That is, the person must hold a well-founded fear of persecution for a Convention reason on return to the country from which they arrived.  Clearly, the country from which the claimant came from need not be his or her country of origin but might be any country where they were in danger of persecution.34  A strict interpretation of this requirement would mean it was unlikely that many refugee claimants, if any, arriving in New Zealand would be eligible for Article 31(2) protection.  This is because it is almost inevitable that a journey from a refugee-producing country would make a stop-over in some other country, if only to allow the craft to refuel.  An argument that seemed to head along this line was made in the recent New Zealand case of Abu v Superintendent of Mount Eden Woman’s Prison.35  There counsel for the Crown submitted that:36

[31] In R v Uxbridge Magistrates’ Court, it was similarly argued that if the asylum-seeker could have made their claim in any country they entered on the way to the United Kingdom, he or she would be excluded from the ambit of Article 31(2).37

[32] Such narrow approaches though, are inconsistent with the spirit of the Refugee Convention, as well as the travaux preparatoires,38 and the views of the UNHCR.39  The argument on the restrictive applicability of Article 31 was not addressed by Potter J in Abu, but Simon Brown LJ, in Uxbridge, preferred an approach in line with the UNHCR explanation of what should be considered when enquiring into whether the claimant came “directly”.40  The UNHCR interpretation is repeated in its guidelines on detention of asylum-seekers, which state that that the term:41

[33] It is likely that a New Zealand court would take a similar approach to interpreting the expression “coming directly” in a similar, factorial fashion as the Court in Uxbridge.  There Simon Brown LJ considered the length of stay, the reasons for delay, and whether protection was sought in an intermediate country to be relevant in determining whether the claimant had come directly.42

2.4.3  Presentation “Without Delay”

[34] In the context of Article 31(1), refugee claimants are required to “present themselves without delay to the authorities”.  The contentious term in such a phrase is “without delay”.  How much time must elapse before a refugee is said to have delayed too long to be afforded the protection of the Article?  The UNHCR again argues for a liberal interpretation that takes into account the unique dilemma of the refugee.  Their interpretation states:43

[35] In the context of persons being prosecuted for illegal entry, this interpretation makes sense.  The person may have been in the country for some time before they are discovered to be there unlawfully.  If the authorities have realised his or her presence is unlawful on their own account and the person unlawfully present clearly had no intention of surrendering him or herself, Article 31(1) would not apply.  If the person did surrender him or herself it is likely the protection would apply.  The problem with applying this term in the context of detention on arrival is that the refugee claimant will either immediately surrender him or herself, or will have their travel documents discovered false or missing by the authorities.  The immediate surrender is likely to be rare, given the “special situation” of refugees noted above.  Would all asylum-seekers be excluded from being protected by Article 31(2) merely because the authorities discovered the unlawfulness of their entry before they had a chance to present themselves?  If so, the period of “without delay” is severely shortened in the context of Article 31(2).

[36] There have been suggestions that the intention of the claimant will be relevant to the applicability of the provision.  In Uxbridge for instance, the false documents had been discovered before the refugee claimants had made any voluntary act of surrender,44 but it was accepted that they had intended to do so within a period that could still be called “without delay”.45  It is difficult to know at the airport whether asylum-seekers intend to “present themselves without delay to the authorities”.  An argument could be made that the asylum-seeker should be given the benefit of the doubt on this point.

[37] There may be good reasons why refugees are reluctant to admit their illegal entry immediately, and would find it preferable to try their luck at gaining entry by the use of false documents.  However, the purpose of Article 31, as has been stated above, is to give special protection to a small group who show good faith in their claim for asylum.  Although in this context, “without delay” must equate with “almost immediately”, surrender at the first opportunity is arguably the best available indicator of good faith.  Those who do not surrender themselves, but are discovered by authorities in attempting illegal entry, have shown a willingness to deceive authorities.  Such people are presumably not so deserving of protection because if allowed into the community, they may again attempt to elude authorities by failing to appear for their status determination hearing, and may remain unlawfully in the country.  It is logical, if not always accurate, to think that those who voluntarily surrender themselves to authorities will abide by the status determination process and surrender themselves for removal should their claim fail.

[38] Such logic may impact unfairly on refugees who, as is suggested above, have good reasons for distrusting those in authority. Article 31(2) may well be imperfect in that it fails to protect some genuine refugees. A broader interpretation would succeed in protecting those refugees, but it would also protect undeserving claimants.  The Article provides a minimal standard of protection for those who demonstrate the utmost good faith.  States are not obliged to detain those not covered by it.  Rather, the Refugee Convention simply does not require that States do not detain in such cases.

2.4.4  “Good Cause” for Illegal Entry

[39] The UNHCR states that “the expression ‘good cause’, requires a consideration of the circumstances under which the asylum-seeker fled”.46  In other words, if it was reasonable in all the circumstances for the refugee claimant to have attempted entry to the country without documentation, or with false documents, then he or she should be protected.  This too sits uncomfortably in the context of Article 31(2) since at the time of arrival, when the protection from detention is needed, there has been no opportunity for an assessment of whether, in fact, the claimant had good cause.  When the time comes to prosecute a refugee for illegal entry, the person’s refugee status may have already been determined, and that enquiry will illustrate whether there was a reasonable opportunity to obtain valid travel documents.  There is no chance of this occurring at the airport.

[40] In light of that impossibility, it should be presumed that a refugee claimant did have good cause.  If no such presumption is made, few if any asylum-seekers would receive the protection of the Article since it is virtually impossible to immediately show the presence of persecution without an enquiry.

2.5   Conclusion on Coverage

[41] In order to be eligible for the protection of Article 31(2), the individual must first have claimed refugee status.  Due to the declaratory nature of the refugee definition, the assumption is that the applicable rights under the Refugee Convention attach immediately refugee status is claimed.  So the first requirement is that the person be a refugee claimant.

[42] The second requirement is that the claimant must be present in the country unlawfully.  If they are present lawfully, there are other provisions guarding against detention, and, in practise, the New Zealand government is unlikely to wish to detain such persons.

[43] The third requirement is made up of three parts, and is carried over from Article 31(1) by the term “such refugees”.  Those asylum-seekers wishing to claim the protection of Article 31(2) must have come directly from a persecuting country.  They must also immediately report their refugee claim to airport authorities, before their entry is discovered to be illegal.  Lastly they must be able to show good cause for their illegal entry, although given the difficulties inherent in determining such a thing at the airport, a refugee claimant should be given the benefit of the doubt on this point.

[44] If a refugee meets these requirements, the justification for their detention must be of a higher standard than for other aliens. Article 31(2) gives an extra layer of protection to those whose actions in obtaining illegal entry are entirely understandable due to the recognised difficulties of obtaining valid travel documents in a persecuting country.  The next chapter looks at the nature of that protection.

3.   Nature of Protection

3.1   State Sovereignty and the Right to Detain

[45] The right to control borders is an important aspect of State sovereignty.  Indeed, it has been stated that “one of the most jealously guarded rights of a State [is] the right to prevent foreigners from crossing its borders”.47  A corollary of that right is the right to detain aliens who the State elects not to allow to enter, or remain, pending their removal from the country.48

[46] By ratifying certain international Conventions, States agree to limit their sovereignty.49  As the quotation above highlights, the right to exclude aliens from State territory has historically proven to be an aspect of sovereignty States have been least willing to compromise.50   One of the most significant inroads into that right is the obligation against non-refoulement in the Refugee Convention.51  This Article forbids States from returning refugees to countries where they will face persecution.  Since they are barred from removing such persons, disallowing their detention could be seen as giving them a right of entry, eliminating the ability of States to have complete control over their borders.  It is understandable then, that States will often fight hard not to be bound to restrict detention practises.52

[47] Notwithstanding a general reluctance to have the power to detain aliens restricted, States that have ratified the Refugee Convention have agreed to do so in limited circumstances.  The Convention does not altogether remove the right to detain.  As discussed above, Article 31(2) covers only a very limited class.  Even this group is not given immunity from detention.  Rather, the Convention requires States to provide a higher standard of justification for the detention of this group than for others.  This standard is discussed below.  First however, it is necessary to determine what constitutes detention.

3.2   Detention

[48] Article 31(2) protects against unnecessary restrictions on movement.  The Article is generally understood to apply most stringently to detention since “there is a qualitative difference between detention and other restrictions on freedom of movement”.53  While “detention” may seem self-explanatory, there is room for debate over whether a person is actually being detained, or whether their movements are being only limited in some less intrusive manner.54  There have been arguments for instance, that a State would not be detaining an asylum seeker by keeping them in an "international zone" at the airport, since they would remain free to leave the country if they so wished.55 This is clearly an attractive argument for those who wish to be seen to be acting in accordance with their obligations under the Convention, yet wish to prevent certain people entering the country.  The interpretation however clearly conflicts with the ExCom and UNHCR view of what constitutes detention, and would appear to contradict the reality of the situation.

[49] UNHCR guidelines define “detention” of asylum seekers as follows:56

[50] The current practise in New Zealand is to detain those refused entry to the country in prisons, their only option for leaving being to leave the country.57  Thus, whether or not a refugee claimant is being “detained” is unlikely to be an issue.

[51] If alternatives to prison were adopted however, Courts would likely apply a factorial approach to determine whether in fact a person was under detention.  This is the approach currently taken under the New Zealand Bill of Rights Act 1990, where a judge will look at the degree of interference with the subject's liberty.58  The factorial approach is also used in other jurisdictions.  The European Court of Human Rights, for instance, has stated that it will assess whether there has been a deprivation of liberty by reference to such factors as the area to which the person has free access, ability to contact people outside that area, degree of supervision, and liability to punishment for failing to comply with requirements.59 The UNHCR definition supplied above sufficiently captures such considerations, and for the purposes of this essay, that definition will be used to encapsulate the notion of detention.

3.3   What is “Necessary”?

[52] Since the Convention bars unnecessary detention, the scope of what is “necessary” is a vital and vexed question. Exactly what the term means is not elaborated on in the Convention itself.  The travaux preparatoires tells us that:60

[53] Despite the fact that requirements of national security would justify detention, this statement is not greatly enlightening.  The following section looks at some other justifications that have been offered for detention, and whether they could classify as “necessary”.

3.3.1  ExCom Conclusion No. 44

[54] The Executive Committee was established in its current form in 1958.61 ExCom is made up of representatives from States who are parties to the Convention. Among other things, its role is to advise the High Commissioner on the appropriateness of providing international assistance for solving specific refugee problems.62  In 1975, a Sub-Committee of the Whole on International Protection was set up to review situations of concern.63  This Sub-Committee formulated the conclusion of interest.

[55] It was only after extended, and often heated, debate the Sub-Committee eventually agreed upon the content of Conclusion No. 44 relating to the detention of refugees.64  In relation to when detention would be justified, the Committee:65

[56] The conclusion represents the consensus reached by a number of State representatives, only after the Committee failed to reach agreement in its allotted time and had to form a working group on the subject.66  The difficulty of reaching a consensus is quite important when assessing the weight it ought to be given in interpreting what constitutes necessary detention.

[57] The conclusion represents a workable compromise reached between States who believed detention is always undesirable, and those who sought to maximise the State’s right to control its borders.  The fact that all States were prepared to adopt this conclusion should mean that it will be influential in a judicial analysis of what constitutes “necessary” detention. Whereas UNHCR’s role is specifically geared towards protecting the interests of refugees,67 the States making up the Executive Committee act in the knowledge that their conclusions will impact on their own practises.  This aspect of self-interest means that their conclusion may be viewed as more objective than those coming independently from the UNHCR.

[58] ExCom conclusions are considered to form part of “soft” international law as they relate to refugee protection.68  That is, they are not documents of international law and are not binding on States, but do have some legal relevance, in the form of guidance and recommendations.69  Sztucki argues that if State’s did not believe their conclusions had any relevance to what constituted acceptable practise, “there would probably not be much sense in hard bargaining about the specific wording of the texts”.

3.3.2  UNHCR Guidelines

[59] The office of the United Nations High Commissioner for Refugees was created by the United Nations General Assembly in 1950.70  The UNHCR has two main functions, namely the provision of international protection and the seeking of permanent solutions to refugee problems.  The UNHCR periodically publishes guidelines on the subject of refugee detention.  The latest UNHCR Guidelines on applicable Criteria and Standards Relating to the Detention of Asylum Seekers were issued in February 1999.  The guidelines open with the strong words that:71

[60] There should be, according to the guidelines, a presumption against detention, and details are given as to available alternatives to detention, procedural safeguards, detention of certain groups, and the required conditions of detention.

[61] Guideline 3 is entitled “Exceptional Grounds for Detention”, and adopts the same exceptions as were accepted by the Executive Committee in its 1986 conclusion, and expands on their implications. To repeat, the exceptional circumstances in which detention may be classified as necessary are:

[62] The first exception is where it is necessary to verify identity, where the identity of the asylum-seeker is unknown, or disputed.  It is important that the host country know the identity of persons within its borders, and detention until such time as identity is verified is probably unavoidable.  In any event, without prior knowledge of the claimant’s identity it is likely to be unclear whether he or she is eligible for Article 31(2) protection.  This exception is foreseen to exist only for a “few days”.72

[63] The second exception exists where the basis for the claim for refugee status or asylum needs to be ascertained. Detention may be necessary to allow time, for instance, for an interpreter to speak to the applicant. The asylum-seeker may be detained only for a preliminary interview, and not for the entire determination process.

[64] Exception three occurs when an asylum-seeker has destroyed his or her travel documents, or has used false ones, with the definite intention of misleading authorities of the State where he or she intends to claim asylum. For the exception to apply there must be an intention to mislead, or a refusal to co-operate.  The criteria in Article 31(2) are designed to give preferential treatment to those who act in good faith in the asylum-seeking process, but it is not failsafe.  If a person satisfies the criteria but still exhibits bad faith, there may be a legitimate concern about the applicant’s credibility, and may increase the likelihood of absconsion in the particular case.  Individual exhibitions of bad faith may make detention necessary for a person otherwise satisfying the restrictive criteria.

[65] The final exception states that detention may be warranted if it is necessary to protect national security and public order.  This would apply to suspected terrorists, or asylum seekers with major criminal convictions.  There must be evidence to support the suspicion.  Under the Refugee Convention, countries have limited obligations to this class of person, and they will generally not be protected by the obligation of non-refoulement.73 Exceptions (i) and (iii), above, will often presumably apply when States wish to ascertain whether the claimant falls within this group, so that they will be entitled to expel the claimant back to his or her home country.

[66] The other situation where the national security exception could come into play is where the country is at war, or other “grave and exceptional circumstances” exist.  In such cases Article 9 of the Refugee Convention expressly reserves the right of States to take provisional measures, which could clearly include detention, in the case of a particular individual.74  Thus, the fact that an asylum-seeker may be detained in the interests of national security is beyond doubt.

[67] These are the only exceptions admitted of by the UNHCR.  There is explicit condemnation of detention imposed for ulterior motives such as general deterrence, or as punishment for mere illegal entry.  Where detention is imposed, the guidelines point out that the procedure and criteria should be clearly prescribed by national law.

[68] As stated above, given the fact that UNHCR has the specific role of protecting the interests of refugees, it is natural to assume that it will be inclined to maximise the extent of the obligations on States under the Refugee Convention.  However, any such inclination must be tempered by a wish to have as many States ratify the Convention as possible.  New ratifications are unlikely to occur if States perceive the Convention as imposing obligations that are overly intrusive on their sovereignty.  The UNHCR guidelines do not appear extreme, and given the fact that they adopt the ExCom conclusion on when detention is justifiable, the guidelines are likely to be considered persuasive by a Court in interpreting the Convention’s use of the term “necessary”.  The reliance on UNHCR guidelines in Uxbridge,75 and the fact that such guidelines are referred to in the New Zealand Immigration Service Policy Manual,76 would also aid an argument that the guidelines are instructive in this context.

3.3.3  Additional Grounds Making Detention Necessary

[69] The ExCom conclusion and the UNHCR guidelines on what may make detention qualify as “necessary” are persuasive. They show a legitimate objective sought to be achieved by detention and require States to be satisfied that those objectives cannot be satisfied by means falling short of detention.77  It is unlikely that a court would find that a detention alleged to be necessary according to one of those grounds to be contrary to Article 31(2).  The UNHCR guidelines at least, insist that these are the only grounds justifying detention. There may however be other grounds necessitating detention if it can be established first, that objective sought to be achieved by detention is legitimate, and second, that there is no less intrusive way the objective could be effected. To illustrate this method of determining necessity, two arguments are examined in this section.  The first is that detention is necessary to deter future attempts at unlawful entry.  The second is that detention is necessary to avoid asylum-seekers absconding, and avoiding removal after an unsuccessful claim.

  •   Deterrence
  • [70] Deterrence is often offered as an objective justifying the detention regimes in Australia78 and the United States.79 It has been denounced by the UNHCR, whose position is that detention “as part of a policy objective to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law”.80 Specific deterrence, where detention is used as a means of causing asylum-seekers to return home would be highly unlikely to be found necessary, since it arguably breaches the obligation against non-refoulement in international law, and in New Zealand, domestic law.  It would therefore be an illegitimate objective.

    [71] General deterrence aims to deter others from attempting the same actions as the person detained.  For instance if a group of "boat people" arrived and was detained, their detention may serve to deter other boats from attempting the type of unlawful entry.  General deterrence has played a large part in Australia’s policy of mandatory detention for illegal entry.  In 1992 the Minister of Immigration and Ethnic Affairs stated:81

    [72] There are several reasons why general deterrence too is unlikely reach the necessity standard.  There are a number of moral reasons why a Court would be reluctant to hold it to be a legitimate objective.82  In addition, it is questionable whether making an exception for the few persons satisfying the Article 31(2) test would detract from any deterrent effect achieved through detention.  Indeed, if the exception were to have any effect it would be to encourage honesty and promptness in the asylum-seeking process.  An argument based on the need to deter future unlawful entrants would likely fail in that the objective can be equally, if not better achieved by exempting those coming directly from a persecuting country and immediately identifying themselves as asylum-seekers.
  •   Avoiding Absconsion
  • [73] Another basis upon which detention policies could be defended is that it is necessary to avoid the risk of asylum-seekers absconding, that is, not appearing for their refugee hearings, or not delivering themselves up for removal once they have had their claim rejected.  If they are in detention, there is no such chance of bogus, or other failed claimants disappearing into the community, and avoiding deportation.  This is certainly a legitimate objective, since New Zealand has large numbers of persons present illegally, and the number of failed refugee claimants actually removed from the country is extremely low.83

    [74] But is detention of those that meet the Article 31(2) threshold the least intrusive way of achieving that objective?  Grahl-Madsen states that fears of absconsion in a particular case may make detention necessary.84  However, it should be remembered that he was of the opinion that the restrictive criteria in Article 31(1) did not apply in the detention context.  He even qualifies his own statement in this respect by stating in parenthesis “it will be remembered that [the asylum-seeker] does not need to have presented himself voluntarily in order to invoke [Article 31(2)]”.85 When it is a requirement that asylum-seekers must have admitted their illegal entry, it results that the group Article 31(2) protects is singled out for special protection for the very reason that they have illustrated the utmost good faith in bringing their claim to the attention of the authorities immediately upon arrival in the country.  Such persons are singled out for protection because they have shown themselves unlikely to abscond. Their detention is unlikely to be justified on the basis that it is necessary in order to avoid their absconscion, particularly when the risk of absconscion is not individualised but is used to justify a policy of detention.

    [75] In addition, detention for the purposes of removal is unnecessary since the object to be achieved can be attained through alternative means.   Efficient removal procedures after an unsuccessful refugee claim do not require the person to be in custody.  Although it may be more convenient for the authorities to have claimants readily available for removal, convenience does not constitute necessity in terms of Article 31(2).

    3.4   Conclusion on Nature of Protection

    [76] A detention can be said to be necessary when there are no other equally effective means to satisfy a legitimate objective.  ExCom and UNHCR have agreed upon a limited number of grounds representing legitimate objectives that detention may be necessary to achieve.  While there is arguably room for further grounds to be added, the fact that the Article 31(2) criteria are so narrow means that in practise, making an exception to a general policy of detention will have such a minimal impact as not to compromise the objective’s achievement.  Apart from unforeseen exceptional circumstances, the ExCom and UNHCR grounds provide an accurate summary of when detention could be justified as necessary.   The next chapter looks at New Zealand law and whether it satisfies the requirement that only “necessary” detention should be permitted when an asylum-seeker falls within the scope of Article 31(2).
    4.   New Zealand Law and Policy

    4.1   Immigration Act 1987

    [77] In New Zealand, immigration and refugee law issues are governed by the Immigration Act 1987.86  The basic premise of immigration law is contained in s4 of the Act:87

    [78] The only persons exempt from the requirement to hold a permit currently are citizens of Australia.88  Refugee claimants therefore will require a permit in order to be considered in New Zealand lawfully.  The decision of whether to grant a permit is a matter of discretion for the Minister of Immigration or an immigration officer empowered to make such a decision under the Act.89  When such a permit is refused, the claimant will be considered to be here unlawfully, and will become subject to s128.

    [79] Section 128 of the Act provides that if a person arrives in New Zealand and is refused a permit, he or she may be detained for 28 days, pending their return to whence they came.  There is also an initial 48-hour period during which a person may be detained by the Police without obtaining a warrant of commitment.90  The basic purpose of this provision is to arrange for the departure of a person who has not been permitted to legally enter New Zealand.

    [80] Since refugee claimants cannot, owing to the obligation of non-refoulement, be removed until their refugee status is determined, they are dealt with somewhat awkwardly within the scope of this section.91  Prior to the Amendment Act 1999, after the expiry of the statutory 28 day period, the Superintendent of the prison was required to release the person, if they had not been either released or removed from the country earlier.92  In addition, if it became apparent that the person would be unlikely to be able to leave New Zealand within the 28 day period, release was required.93  Since refugee claims generally take longer than 28 days to determine, the prohibition on removing asylum-seekers meant they would often be released under this provision.  Having been released, the person would become subject to the administrative removal procedures in Part II of the Act, under which the right to detain was much more difficult to acquire.94

    [81] Rather than provide specific legislative provision for the detention of refugee claimants, as was suggested by the Court of Appeal in D v Minister of Immigration, Parliament has preferred to work within the existing statutory framework which makes no distinction between asylum-seekers and other persons.  The most recent amendment to s128 changed the requirement of release after a 28 day period. From June 1999, warrants for commitment may be extended for seven day periods in the case of individual applicants95  or for as long as a Judge thinks necessary in the case of mass arrivals.96 This Act was the first time New Zealand had made separate provision for the arrival of large groups of illegal immigrants, the most common example being boat people.  However, in June of 1999 the commencement date  of this provision and several others were brought forward urgently, because it was feared they would be necessary to deal with the predicted arrival of a boat of 102 Chinese nationals.97

    [82] These amendments have made it possible for detention to occur for much longer periods; theoretically, even indefinitely. Notwithstanding concerns expressed about legislation making indefinite detention possible,98 detention may now be authorised for the entire status determination process.

    [83] The other provisions that are relevant to the detention of asylum seekers are sections 128A and 128B, introduced in 1993.  Section 128A has the effect of allowing the 28 day statutory period of detention to be frozen during judicial review proceedings regarding that detention.  Persons may therefore be detained for 28 days, plus the time taken to determine a challenge to the detention.  However, after 28 days of detention, a District Court Judge may grant bail,99 and this matter is considered at seven day intervals.100

    [84] Section 128B relates to persons whose eligibility for a permit is not immediately ascertainable.  The provision applies to those without appropriate documentation, or apparently false documentation, as well as persons who are suspected of being ineligible for a permit under s7.101  This class of persons may be detained while it is determined whether or not they come within s7.  Among other things, s7 excludes from eligibility for a permit those who have committed serious crimes, are suspected to be involved in terrorism or organisations with criminal objectives, or is likely to commit such crimes, acts of terrorism or drug offences.102

    [85] Originally, once it was ascertained that a person was not excluded by virtue of s7, the Act required that they be released immediately, and granted a temporary permit.103  This was a clear flaw in the legislation, since a person may fall outside s7 exclusion, but still be considered not to be of good character, such that they could still be denied entry to New Zealand.104 As from 16 June 1999, once it is determined that s7 does not apply to the detained person, an immediate decision must be made whether or not to grant a permit.  If a decision is made not to grant a permit, they become subject to s128, and detention will be continued until they are removed from New Zealand.105

    4.2   New Zealand Immigration Service Operations Policy Manual

    [86] The Immigration Act 1987 requires the Minister of Immigration to publish the Government’s immigration policy relating to rules and criteria for determining eligibility for permits.106  This requirement is fulfilled by the New Zealand Immigration Service Operational Manual.107

    [87] As discussed above, persons who are refused entry to New Zealand are subject to detention.  The Manual sets out a list of people who will normally be refused entry.  Relevantly, these include those who:108

    [88] When deciding to refuse entry, the Manual states that New Zealand’s international obligations should be taken into account.109  The Refugee Convention is specifically listed as being of potential application. The commitment to acting consistently with the Convention is reinforced in the refugee section by the purposive statement:110 [89] However, there is no direct mention of the obligation under Article 31(2) is made, nor are there any statements that seek to identify those persons satisfying the criteria which would require their detention to be justified to a higher standard.

    [90] Most provisions relating to refugees clearly show that there is a discretion whether or not to grant a permit to an asylum-seeker.111  One section states that a refugee claimant enters New Zealand on a false passport, they should not be automatically excluded from being granted a permit.112  There are though, certain factors which are said to automatically bar a permit from being given.  For instance, one statement reads:113

    [91] Written in these terms, it is apparent that there is an obligation not to grant a permit where the claim is abusive or manifestly unfounded, but where such lack of bona fides is absent, the immigration officer may grant a permit.  There is one part of the Manual that states visitor permits will “normally” be granted to refugee claimants.  There was much weight placed on this statement in the case of E v Attorney General,114 but as will be later discussed, its context means that it is unlikely to provide much assistance to asylum-seekers hoping not to be detained.115

    [92] The Manual goes on to state, in accordance with the Immigration Act, that if it is decided not to grant a permit, s128 of the Immigration Act applies, with the exception that the person may not be removed from New Zealand until their refugee status has been finally determined.  Refugee status officers are directed to determine the claim “as speedily as possible, ideally within one or 2 working days”.116

    [93] An interesting aspect of the Manual is that it makes explicit reference to the UNHCR guidelines, and their creation of a general obligation to admit people claiming refugee status on arrival in New Zealand.117  The recognition of the role of such guidelines in the Manual may give some force to an argument that the UNHCR guidelines on detention of asylum seekers should also be given some weight.

    4.3   Is New Zealand Law Currently Consistent with Article 31(2)?

    [94] To repeat the obligation owed by New Zealand under Article 31(2), refugee claimants who fit the criteria of Article 31 should only be subject to detention if such detention is “necessary”. There is no provision, either in the Act or the Policy Manual, to determine whether the obligation under Article 31(2) is owed to a particular claimant, that is whether he or she satisfies the requirements of having come directly to New Zealand, having good reason for travelling on false documents, or no documents, and did or had the intention of presenting themselves to the authorities.  Nor is there a wider statement of a presumption against detention that would encompass such persons.

    [95] The circumstances in which detention is allowable are not circumscribed to reflect the requirement of necessity.  The interpretation of that term argued for above would allow detention in the following narrowly circumscribed situations:118

    [96] The Immigration Act potentially authorises detention of asylum seekers in the following circumstances: [97] Clearly, the Immigration Act authorises detention on wider grounds than that conceived of as justified at an international level. This is perhaps inevitable due to the fact that refugee claimants and other illegal aliens are not distinguished in the legislation.  Goodwin-Gill notes that where the relevant law is of general application, “if special measures are not taken to single out the refugee, he or she is likely to be denied the rights and benefits due under the Convention and Protocol”.122

    [98] This broad basis for allowing detention could have been brought into line with the narrower position through making it policy that immigration officers should take account of the necessity of detention.  The Policy Manual though merely circumstances disallowing the grant of a permit, maintaining the broad discretion for those who do not fall into such excluded groups.  New Zealand law does not align with international law in terms of initiating detention.

    [99] Such an inconsistency is exacerbated by the potential for indefinite detention under the Immigration Act.  The provision allowing extended periods of detention is new for New Zealand, and was criticised by the UNHCR, who stated:123

    [100] Particularly in the case of mass arrivals, whose detention does not need to be assessed at seven day intervals, provision for long periods of detention fails to allow for a time when detention may no longer be necessary, even if the initial detention could have been justified.

    [101] The legislature and the executive have not ensured that the law reflects international obligations.  The following chapter considers whether notwithstanding this, the courts may be able to enforce Article 31(2).

    5.   Potential Role of the Courts

    5.1   Applying International Law in Domestic Law

    [102] New Zealand belongs to a dualist common law tradition which holds international and domestic law to be in different spheres. International conventions such as the Refugee Convention are ratified by the Executive. Laws, on the other hand, are created by Parliament.  The orthodox position is that the terms of such conventions are not operative in domestic law until specifically incorporated into statute by the legislature.124

    [103] Nevertheless, particularly in the case of conventions dealing with human rights, including the right to liberty, Courts have shown themselves willing to require the Executive to heed their international obligations.  International obligations are at least permissive considerations for administrative decision makers.125  Also, as a matter of statutory interpretation, courts try, where consistent with policy and the subject matter of the legislation, to align domestic law with international law obligations.126  Indeed, the Commonwealth Judicial Colloquium concluded that:127

    [104] The following sections look at some ways in which the Court may see its way clear to apply the obligation contained in Article 31(2) within the existing domestic framework.  The matter could come before the Courts in a variety of ways, including applications for habeas corpus, or applications for judicial review of the decision not to grant a permit, or to extend a warrant of commitment.

    5.2   Direct Incorporation of the Refugee Convention?

    [105] A successful argument that the Refugee Convention has been directly incorporated into New Zealand law would allow courts to uphold instances of detention only if they were in accord with Article 31(2) of that Convention.  Since the Convention would be embodied within legislation, detention that did not meet the strict necessity requirements would be inconsistent with the statute and therefore would be unlawful.

    [106] Previously the process for determining refugee status was entirely non-statutory, and had been set up under the Executive’s prerogative powers.128  However, recent amendments to the Immigration Act made the process statutory and, in doing so, attached the Refugee Convention as a schedule to the Immigration Act.129  Under the repealed Acts Interpretation Act 1924, a schedule was deemed to be part of the Act.130  The Interpretation Act 1999 makes no such explicit reference, but clearly the Convention does now form part of the Act.  This does not mean though, that it can automatically be taken to have been incorporated.  Rather, the intention of the legislature must be construed from the Act to determine whether incorporation has occurred, or whether the Convention is attached for information only.131

    [107] The amended Act now states that the Refugee Convention applies in New Zealand law:132

    [108] Further references to specific articles of the Convention are littered throughout the newly inserted sections of the Act, although mostly within the context of status determination.133

    [109] Despite repeated references, and the statement that the Convention is to “apply”, any argument that the Refugee Convention has been incorporated in its entirety into New Zealand law is bound to fail.  By comparison with the requirement for the RSB and the RSAA to act “in a manner consistent with” the Convention, the non-refoulement provision is written into law:134

    [110] If Parliament had intended the Refugee Convention to apply in its entirety, there would have been no need to write in such a prohibition on refoulement.  The amended Immigration Act falls short of incorporating even the definition provisions of the Convention.135 Since there is no reference at all to Article 31, it would be virtually impossible to argue that it is embodied in the Immigration Act.

    [111] Even if it could be argued that the Convention enjoys incorporation to an extent, it is clearly only intended to be incorporated in the context of refugee status determination.  The refugee status section and the immigration provisions are kept quite separate.  The statute explicitly states that immigration matters, such as the grant or refusal of a permit, are outside the power of refugee status officers or members of the Appeal Authority.136  Immigration officers are directed to “have regard to” the Convention,137 but this clearly falls short of saying that their actions must comply with that Convention, or even be “consistent with” it.

    [112] A final point is that if the Refugee Convention, and consequently Article 31(2), were to be seen as having been incorporated, it would apparently create a right in persons satisfying the restrictive criteria not to be detained.  The consequence of this would be that they would effectively have a right to be granted a permit.  Such a conclusion would constitute a direct conflict with s9 of the Immigration Act which expressly states that “[n]o person is entitled as of right to a temporary permit”.138  Parliament is unlikely to have intended such an inconsistency,139 and this point reinforces the claim that the Refugee Convention could not be viewed by a court as having been incorporated.

    5.3   Mandatory Relevant Considerations

    [113] While the Convention may not be fully incorporated, its obligations could potentially be given effect to through the doctrine of mandatory relevant considerations. When something is a mandatory consideration, the decision maker is bound to take it into account prior to reaching a conclusion.  The final decision need not necessarily be in accordance with the Convention, but it must have been a factor in the decision making process.  Failure to have regard to such a mandatory relevant consideration will be grounds for judicial review, and the court may declare the decision unlawful and of no effect.140

    [114] The claim that the Refugee Convention might be a mandatory relevant consideration could occur at two places in the detention process.  Initially, it may be a relevant consideration for the officer who decides not to grant a permit, and therefore to detain an asylum-seeker.  Secondly, the District Court judge may be required to have regard to the Convention in deciding whether to extend the warrant of commitment for another seven days, or for a longer period.141

    [115] As mentioned above, the Immigration Act seems clearly to make the Convention a relevant consideration for immigration officers, since it states:142

    [116] Any decision made by an immigration officer in respect of an asylum seeker, which made no reference to the Convention, would clearly be flawed, and a Court could order it to be reconsidered.

    [117] That the Convention is a mandatory relevant consideration for a judge is less clear, since it is not explicitly stated as relevant in the Act.  However the Convention could be interpreted as being of mandatory relevance through the application of the principle in Tavita v Minister of Immigration.143  In that case Cooke P stated that where universal human rights and international obligations are involved, it would likely be a requirement that the relevant right be taken into account, or even form the starting point, for any decision that might have an adverse affect on that right.144  The decision in Tavita was obiter, since the appeal was adjourned sine die, and strictly speaking has no precedential value.145 It has been discussed in a number of similar cases since, but while followed has not been unambiguously endorsed by the Court of Appeal.146  Despite this, Tavita is generally taken to be illustrative of the New Zealand approach to the relevance of international Conventions in administrative decision-making.  Since the amendment to s128 was envisaged mainly to affect asylum-seekers, the obligations owed to such persons under the Refugee Convention will clearly be in issue in most decisions to extend warrants of commitment under the section.  Failure to have regard to those obligations could well be a reviewable flaw in a decision to allow detention to be continued.

    [118] The Convention then, is now certainly a mandatory relevant consideration for immigration officers, and a strong argument can be made for it being so for District Court judges also.

    [119] Requiring that the Convention be taken into account does not automatically translate into asylum-seekers being detained only in the exceptional circumstances identified above.147  That something is a mandatory relevant consideration does not mean that it dictates the outcome of the decision.  Such considerations “do not compel decisions, they inform them”.148  In reality though, if a Court was to hold that Article 31(2) is a mandatory relevant consideration in decisions regarding whether to grant a permit or detain an asylum-seeker, the discretion of the decision-maker would be substantially constrained.  It is doubtful that if it were a required consideration the Article would not be applied, since it permits “necessary” detention.  Justifications for detention that did not meet the standard of necessity would be unlikely to outweigh Article 31(2).

    5.4   Legitimate Expectations

    [120] Another approach that could assist in implementing Article 31(2) of the Refugee Convention in the domestic sphere is the doctrine of legitimate expectation.  Although the doctrine is a somewhat confused concept,149 it is essentially a requirement of procedural fairness that if a representation has been made and is not later followed, the person affected by any change must be given an opportunity to be heard.

    [121] In some recent cases, the ratification of an international Convention has been held to constitute a representation that its terms will be complied with, subject to an indication to the contrary.  Such a case was Minister of Immigration and Ethnic Affairs v Teoh.150  There, the High Court of Australia held that Australia’s ratification of the United Nations Convention on the Rights of the Child amounted to a representation to the world and the citizens of Australia that it intended to comply with its provisions.  There was therefore an objective legitimate expectation that the provisions of the Convention would be applied, and before being allowed to disappoint that expectation, the person affected should have been given the opportunity to argue that the provisions should be applied.151  The approach has been both applauded152 and criticised,153 but the Privy Council's discussion of legitimate expectation in Thomas v Baptiste suggests it is now well established.154

    [122] Given that international human rights documents have founded legitimate expectations in Australia and the United Kingdom, could the Refugee Convention found one in New Zealand?  That is, having adopted the Tavita approach, albeit hesitantly, would it be possible to also adopt the approach advocated in Teoh?  While I do not wish to argue the compatibility of mandatory considerations and legitimate expectations in depth in this forum, it is certainly important to note the potential for an unacceptable inconsistency within the law to arise if both were adopted in different contexts.155  Would it, for instance, raise problems if the Convention on the Rights of the Child was a mandatory relevant consideration, and the Refugee Convention was the basis for a legitimate expectation?  Or could the Refugee Convention sometimes be a relevant consideration and sometimes form only an expectation?  While in practise the difference may be minimal, doctrinally the two are quite different, mainly due to the fact that a legitimate expectation can be disappointed so long as the correct procedural steps are taken.  Having raised this potential dilemma, the rest of this section proceeds on the basis that either the legitimate expectation doctrine could fit compatibly with that of mandatory relevant consideration, or that the Court of Appeal would expressly choose the Teoh approach over that suggested in Tavita.

    [123] It is possible to construe a relevant legitimate expectation in the New Zealand context.  However, it is important to ascertain the exact scope for such an expectation, since overestimating it is highly problematic, as will be seen in the discussion of E v Attorney General below.156  First, it could be argued that in ratifying the Refugee Convention, New Zealand held out to the world that it would agree to be bound by the terms of that Convention. This was the starting point both in Tavita157 and, in the context of Article 31 of the Refugee Convention, Uxbridge.158

    [124] Arguments as to whether there could exist a legitimate expectation that Article 31(2) would apply in New Zealand will need to focus not only on the fact of ratification of the Convention.  Attention needs also to be paid to the extent to which it has been implemented, short of incorporating its terms into domestic law.159  For instance there may be found to be an indication to the contrary of any representation made regarding the applicability of article 31(2).  While there is nothing expressly approving the Article 31(2) standard, there is nothing explicitly contradictory to that obligation in the Immigration Act.  Had the Act dealt with the detention of refugees separately in s128 or in a comparable section, likely that would be construed as implicitly contradicting a representation in line with the Convention.  However, the fact that s128 deals with all persons not permitted entry into New Zealand may leave room for argument that there would exist an objective legitimate expectation that refugees would have different standards apply to them in accordance with the Convention.

    [125] The argument that a legitimate expectation might exist for those passing the Article 31 threshold would be bolstered by the same provisions used to support the Article being a mandatory relevant consideration above.  That is, references to immigration officers being required to act consistently with the Convention could constitute a representation that Article 31(2) would not be breached.  The Policy Manual statement regarding commitment to upholding obligations under the Convention would also assist.

    [126] It may be concluded then that there is scope within the New Zealand law and policy for Courts to construe an objective legitimate expectation that Article 31(2) will be complied with, and that detention will not occur in situations where it cannot be justified as necessary.  However, it is important to recall that each case must be assessed to determine whether the legitimate expectation pertains to a particular case.  A person can only have an expectation that the obligation in Article 31(2) will be complied with if they meet the criteria that restricts the scope of the obligation.  A person who has been living for a considerable period of time in a country where he or she had no fear of persecution, but who nevertheless arrives without valid travel documentation would have no expectation of being afforded the protection of Article 31(2).  Only a refugee claimant who comes within the restrictive scope of Article 31(2) could be said to have a legitimate expectation that he or she would not be detained unless that detention could be shown to be necessary in that particular case.

    5.5   Case Study - E v Attorney General - High Court Decision

    [127] In 1999, in the case of E v Attorney General, the High Court was given the chance to address the question of when asylum-seekers could be detained. The case involved thirteen plaintiffs who had arrived in New Zealand and sought refugee status between 5 September and 18 October 1999.  Having arrived without valid identification documents, all were declined a temporary permit and detained in Mount Eden Prison.  From 28 October, the plaintiffs, and three other persons in a similar position, began a hunger strike, in protest at having their applications for permits declined and against their detention.  It was this aspect of the case that caught the attention of the media, although Fisher J, in his decision, explicitly stated that the hunger strike had no effect on his decision.160

    [128] The controversial and problematic result of E was that Fisher J found a legitimate expectation that the decision of whether or not to grant a permit to asylum-seekers should begin with the presumption that such persons should be allowed into New Zealand, in effect, that they should not be detained under s128.161 Together, the Refugee Convention, as given status in the Immigration Act, the Immigration Service Policy Manual, the usual practise of the Immigration Service in granting permits to refugee claimants, the UNHCR guidelines, and the general support of the New Zealand Bill of Rights Act, amounted, in the judge’s opinion, to creating a legitimate expectation that there would be a strong, though rebuttable presumption in favour of the grant of a temporary permit to any refugee claimant in New Zealand.  It was considered that since no such presumption had been applied, the expectation had been frustrated.  The applicants were entitled to have their cases reconsidered with that presumption applied, and the decisions to refuse temporary permits were quashed.162

    [129] The immediate reaction to this case was a degree of political outrage,163 and an immediate appeal to the Court of Appeal.  Before addressing the Court of Appeal's judgment, some problems with Fisher J's decision are highlighted here.

    [130] First, Fisher J placed some emphasis on the statutory status given to the Refugee Convention by the Immigration Amendment Act 1999, and stated that it was of contextual relevance.164 However no distinction is made between decisions made before and after the commencement date.  More importantly for future cases though is that the Convention is not incorporated fully, and Parliament kept its application fairly strictly confined to Part VIA.  Any role the Convention might play in creating an expectation that its obligations would be complied with would have to be minimal, and likely smaller than the role it played in the judgment.

    [131] Further to this point, there was no discussion in the judgment about whether the asylum-seekers in question actually would have had a legitimate expectation arising out of the Convention.  Fisher J states at one point:165

    [132] This conclusion is highly questionable.  As discussed above, persons who do not satisfy the criteria of Article 31(1) are not covered by Article 31(2).  Article 31 says nothing about refugee claimants as a group, but only protects those who fulfil certain criteria.  Those who do not fall within that narrow band therefore could have no legitimate expectation that they will be afforded the protection offered by that provision.  Without an examination into whether in fact the plaintiffs had come directly from the country where they claimed to have been persecuted it is impossible to know whether the Convention could have given rise to an expectation. Even if the Court would not have come to the same conclusion on the applicability of the restrictive criteria, it is a clear flaw that its application was not discussed at all.

    [133] Another basis for the legitimate expectation was said to be a provision in the Operations Manual stating “[n]ormally, claimants for refugee status will be granted visitor permits”.166  There are two possible interpretations of this statement.  Either refugee claimants would normally be granted a visitor permit as opposed to being refused entry, or they would be granted visitor’s permits, if at all, rather than other types of temporary permits. His Honour stated that regardless of the Minister’s intention in making the statement, the first interpretation was quite reasonable, and was capable of contributing to an expectation that in normal circumstances, a visitor permit would be granted to refugee applicants. While the statement that permits will “normally” be granted may seem to create such an expectation when read alone, it is questionable that a genuine ambiguity exists when the phrase is read in context.  The paragraph from which the sentence relied upon is taken goes on to direct the reader to sections of the Manual giving information on when work or student permits might be granted.  There are other references throughout the Manual as to when temporary permits may not be granted to refugee claimants, retaining discretion whether or not to grant one in other cases.167  Fisher J believes the interpretation in favour of the appellants “must be at least arguable”, but it would appear to be an extremely weak argument.

    [134] Another problem with regards to the decision is the intuitive difficulty in seeing how a legitimate expectation can derive from a representation construed from an ambiguity in a policy manual, when none of the applicants had in fact relied on, or even knew of, the statement.  That expectations can be engendered without the intention of the author is fairly controversial.168  However, the objective standard for deciding whether legitimate expectations exist is now well established in case law, and administrative law accepts the notion of fictionalised representations.169  In concluding that the plaintiffs had the legitimate expectation they argued for, Fisher J makes the odd statement that:170

    [135] The statement is puzzling because nowhere in the decision is it established that anyone had exhibited a positive intention that such a presumption should exist, except possibly the UNHCR, which is quite irrelevant to the particular case.

    [136] While the legitimate expectation in E v Attorney General is difficult to maintain, a legitimate expectation could validly be held in different circumstances.  Refugee claimants coming direct to New Zealand and presenting themselves without delay to the authorities could be said to hold a legitimate expectation that they will not be detained, unless that detention can be justified as necessary.  Whether the Courts would be prepared to recognise such an expectation is discussed below.

    5.6   Evaluation of Potential

    [137] Of the three methods of application discussed in this chapter, the doctrines of mandatory relevant consideration and legitimate expectation could potentially be applied to successfully challenge a detention that was contrary to Article 31(2).  Whether the Courts would elect to do so or not is a matter for conjecture. On the one hand, a person’s liberty is a fundamental human right, and Courts consider themselves under a duty to interpret domestic law consistently with international obligations.171  In Tavita, Cooke P stated the argument that the Minister of Immigration was free to disregard the obligations contained in the Convention on the Rights of the Child was “unattractive” and tended to suggest “that New Zealand’s adherence to the international instruments has been at least partly window-dressing”.172  The Court in Uxbridge expressed similar sentiments in the context of refugees, saying:173

    [138] On the other hand, Parliament, through its amendments to the detention provisions of the Immigration Act, has arguably illustrated its intention that detention should be widely available for individuals entering the country illegally. The Court may then be reluctant to impose the obligation if it was felt to be contrary to Parliamentary intent.

    [139] Another point which would weigh in favour of the Courts taking a hands-off approach to implementing Article 31(2) is that any successful argument based on Article 31(2) would place substantial limits on the discretion granted by the Immigration Act for decision-makers to choose whether or not to grant a temporary permit.  In a recent New Zealand case, the Court of Appeal was prepared to substantially limit the powers conferred by the Maritime Transport Act.174  The Act prohibited departure of certain crafts from New Zealand unless the Director of Maritime Safety was satisfied as to various safety aspects.  It was held that in fact all that the director would be entitled to be “satisfied” about would be to ensure compliance with international law standards.  That the director’s powers were to be constrained by international law was not specifically stated in the Act, but the Court was able to read in the limitations because of repeated references to wishing to abide by such law in the Act, and the long and entrenched history of maritime law.  International human rights law, including the Refugee Convention, does not have nearly so lengthy a history as the law of the sea.  The sovereign right to exclude aliens on the other hand does have a comparable history.  It is difficult to predict whether Courts would be willing to draw a similar conclusion in the detention context, that a decision-maker’s discretion was limited to being exercised in accordance with the international law relating to obligations owed to asylum-seekers.

    [140] Given this uncertainty, if New Zealand really wishes to uphold its international obligations, it cannot rely solely on the Courts to ensure the protection of the Refugee Convention is afforded to refugees in this country.  Similarly, if Parliament wishes to maintain the full extent of the discretion to detain some action is needed to ensure Courts do not find Article 31(2) to be a mandatory relevant consideration or form the basis of a legitimate expectation.  The following chapter addresses briefly the options for future direction in New Zealand law, the arguments for each and the methods of adoption.

    6.  Options for the Future of Article 31(2) in New Zealand Law

    [141] There are essentially three options for the future of Article 31(2) in New Zealand.  The first is to leave the decision to the Courts.  As was discussed above, a decision could equally go to giving Article 31(2) a much greater role in decisions regarding detention of asylum-seekers, or to maintaining the current position, where the restrictive criteria of the Article and the relative necessity of detention are not prescribed considerations.  It is somewhat unsatisfactory for the Government to leave this gap in the law to either be filled by the Courts or to be left open.  A more responsible move would be to address the arguments for and against requiring the Article 31(2) obligation to be fulfilled, and making a positive statement as to whether the obligation is or is not to be upheld in New Zealand.  This section looks briefly at the arguments in support of maintaining the status quo, and those in favour of making New Zealand law explicitly reflect the obligation.

    6.1   Arguments for Maintaining the Status Quo

    6.1.1  International Practise

    [142] One justification that could plausibly be offered for New Zealand detaining refugees is that it is common international practise to do so.   Australian law, for instance, makes the detention of all unlawful non-citizens, (defined as non-citizens in the “migration zone”175) mandatory.176  Refugee claimants are in no way exempt from that broad requirement.  Detention is usually maintained for the entire status determination process.  The United States has a widespread practise of detaining aliens who arrive without proper travel documentation.  In 1998, there were 15,000 Immigration and Naturalisation Service (INS) detainees in detention facilities around the country,177 that number having doubled in a decade.178  By 2001, the number of INS detainees is expected to rise to 23,000.179  The reason for the sharp increase in the use of detention is largely attributed to new legislation in 1996, which created mandatory detention provisions,180 and increased the number of crimes that may lead non-citizens to be deported.181 Again, no differentiation is made between ordinary illegal aliens and asylum claimants.182 European countries all have some form of detention regime,183 with the United Kingdom’s being among the strictest.184

    [143] The fact that many other countries act contrary to the Refugee Convention is not in itself a reason justifying detention.  The fact that detention is widely practised may show that there are one or more ways in which a breach of the international law can be justified.  For instance, if application of the Refugee Convention obligation would not sufficiently protect the citizens of the host country, national security might be thought to outweigh the desirability of upholding the international law.185  New Zealand may be able to learn from other countries reasons why detention might be acceptable.  However, if the countries that practise detention can not provide adequate justifications for that practise, New Zealand should not follow their example blindly.  All the countries mentioned above have been criticised for their detention practises.186  New Zealand should not be too quick to follow their example if there is no good reason for breaching international law, and, potentially, human rights.

    6.1.2  Refugees’ Interests Outweighed

    [144] One argument that was made by the then Minister of Immigration following the decision in E v Attorney-General was that if New Zealand is seen to take a soft line on refugee claimants, it will be flooded with such claims.187  New Zealand already hears many claims for refugee status each year, and suffers from a backlog of claims.  If the claim is unsuccessful and the right of appeal is exercised, the determination process can take up to two years.188  If more people are encouraged, by liberal detention policies, to come to New Zealand and claim refugee status, that backlog will be exacerbated.  Genuine refugees will be disadvantaged in that it will take longer to be granted refugee status, and those making unfounded claims will be unfairly advantaged in that they will be allowed to remain here for a longer period.  New Zealanders will be disadvantaged by an unwarranted influx of persons who would not otherwise be allowed into New Zealand to work or claim benefits.  The obligation under 31(2), on this argument, is found to be outweighed by countervailing interests.  It is an unfortunate but necessary result that a few refugees may be detained contrary to Article 31(2).

    [145] This is potentially a powerful argument against restricting New Zealand’s power to detain asylum-seekers in general.  It is difficult to see though, that it could really justify not abiding by Article 31(2).  As has been shown, the restrictive criteria that limit the application of the Article rewards honesty and good faith in the refugee determination process.  Promising to uphold the obligation could have the effect not of prompting a surge in the number of manifestly unfounded refugee claims, but of reducing the number of illegal entries attempted or effected in New Zealand.  Whether or not this would actually occur is not expanded on here.  It is pointed out merely to show that there is no clear evidence either way as to what the likely effect of abiding by Article 31(2) would be.  Floodgates arguments such as that made by the Minister tend to be exaggerated, and there has been no massive increase in the arrival of asylum-seekers since the E decision.  The argument that the refugees’ interests are outweighed by more pressing concerns is weak, particularly when the suggestion is merely to require a higher standard of justification for those meeting the requirements of Article 31(2).

    6.2   Arguments for Implementing Article 31(2)

    6.2.1  Financial Cost

    [146] One argument against detention is that is extremely expensive.  A recent statement by the  Act political party welfare spokeswoman claimed that the cost of detaining a person in Mt Eden Prison was close to $1000 per week.189   The Department of Corrections Annual Report tends to confirm this price by putting the average cost of imprisonment at $139 per day, or $973 per week.  This is not an insubstantial amount of money, particularly when the period of detention can be extended considerably during judicial review proceedings, or while a determination is made as to refugee status.

    6.2.2  Human Cost

    [147] Being detained is bound to be a generally unpleasant experience. But there are several relevant factors present in refugees that make detention a more horrific experience.  First, refugees are, by definition, outside their own country, and many if not most will have never been to New Zealand before.  Similarly, many will be unable to speak or understand English.  Lack of understanding as to why the detention is taking place at all will make the experience more frightening than it would be for someone who could understand the reasons for its occurrence.  Despite conditions of detention, many refugees report that detention in Australian centres was worse than detention in their own country, because there was a lack of connection with the community.  The fear existed that detention would “go unnoticed”.190

    [148] Secondly, it must be remembered that most refugees will have suffered persecution in the past, and even those who are not eventually recognised to fit the criteria of the Refugee Convention may have suffered extraordinary traumatic events.191  The voyage to New Zealand may itself be highly traumatic in some cases, particularly if by sea.  Becker and Silove argue that “the nature of detention inadvertently reproduces aspects of the traumatic experience and adds another trauma”.192  Although some refugees will have suffered persecution in jails,193 it is not necessary for the detention experience to directly mirror past traumatic events for it to have a major adverse psychological effect.194  Studies of detention camps have shown that Post Traumatic Stress Disorder is very common among detainees, and high rates of suicidal feelings.195

    [149] The adverse consequences for mental health are reflected in the physical health of detainees.  In the same centres mentioned above, detainees exhibited a poor standard of health.  Interestingly, even when treated, the rate of poor health remained high, suggesting the link between the physical environment, the lack of contact with community and poor health are interrelated.196

    [150] The potential of detention to compound physical and mental problems in refugee claimants is a good reason why detention should be considered an option of last resort.  When it is necessary, the period detention is to be allowed will also be relevant.  Psychological well-being deteriorates over a period of detention, meaning the longer the person is detained, the greater the cost to health.197  New Zealand legislation effectively allowing indefinite detention makes room for the increase of such health problems to increase.  This should cause concern purely from a humanitarian perspective.  Refugees are by definition deserving of international protection, yet ongoing detention multiplies the trauma they have already experienced.  But it can also be seen from a financial perspective.  The health problems developed by refugees while in detention must be treated at some stage, and the longer the detention is maintained, the greater the risk to health, particularly mental health.  Avoiding detention should be recognised as a method of avoiding costs and crowding in mental health units and hospitals in the future.

    6.2.3  Value of Abiding by International Obligations

    [151] Another argument in favour of bringing New Zealand’s law into line with the Refugee Convention obligations is that it is in New Zealand’s interests to be seen as upholding human rights and the international law.  New Zealand prides itself on being one of the few countries with an impeccable record in regards to human rights; indeed this is a likely reason why it is seen as an attractive destination for asylum-seekers.  The commitment to complying with the Refugee Convention is expressed in the Commentary to the Immigration Amendment Bill,198 which states that the bill “reinforces New Zealand’s commitment to its international obligations”.199  The idea that countries can ratify Conventions and then ignore them in practise is generally considered undesirable.200  It opens New Zealand to criticism from the international community, and potentially from the United Nations Human Rights Commission.201

    [152] The claim that New Zealand ought to legislate consistently with its international obligations is valid, in itself.  However, the fact that New Zealand’s law is inconsistent with the Refugee Convention as regards detention is unlikely to expose New Zealand to much criticism from the international community, essentially because most other countries are in the same position.  As was argued above, that in itself is not an excuse for the inconsistency. But neither is the argument that New Zealand’s international reputation will be harmed likely to motivate the Government to change the current law.  The political will to bring New Zealand law into line with Article 31(2) will not be stimulated by international pressure, but must be internal.

    6.3   Methods of Implementation

    6.3.1  Maintaining the Status Quo

    [153] It may seem somewhat odd that changes would be necessary to keep the law in its current form.  However, although it was concluded in Chapter 5 that the Courts may not require decision-makers to act consistently with the Refugee Convention, the possibility still exists that they may so decide.  In order to maintain the right to detain persons regardless of their claim for refugee status, or whether they are covered by Article 31(2), there should be some action taken to ensure the Courts could not find the Article to be either a mandatory relevant consideration, or to engender a legitimate expectation.

    [154] As was discussed earlier, a legitimate expectation may be removed by an express statement to the contrary.202  This could be achieved by a statement from the Executive, as was done in Teoh.203  However, a finding that the Immigration Act made Article 31(2) a mandatory relevant consideration, as is certainly arguable, could not be removed by such a statement.  To be sure that no Court would interpret that provision as making the obligation such a consideration the statute would need to be changed.  In particular, the requirement that immigration officers must have regard to the Convention would likely need to be rephrased to exclude Article 31(2) from consideration.

    [155] Such a change would need to be reported to the UNHCR, in accordance with Article 35 of the Convention.204  No doubt such a move to expressly deny New Zealand’s obligation to apply a provision of the Convention would provoke disapproval from UNHCR and possibly from the United Nations and other groups.  However the prospect of such disapproval is one of the factors that must be considered when deciding that New Zealand does not wish to, or cannot afford to abide by Article 31(2).

    6.3.2  Implementing Article 31(2)

    [156] Article 31(2) could be implemented in New Zealand law relatively easily.  The first way would be to change the legislation to provide explicit recognition of the special position of those meeting the Article 31(2) requirements, and possibly provide special procedures to be followed when the asylum-seeker comes within that group.205

    [157] The second way would be to achieve an equivalent effect through policy published under s13A of the Immigration Act.  This provision directs the Minister of Immigration to publish Government policy relating to “the rules and criteria under which eligibility for the …grant…of permits is to be determined”.206  The obligation under Article 31(2) could be relatively easily achieved by inserting the Article 31 criteria into the Manual and directing the decision-maker to grant a permit if their detention could not be justified as necessary.  There would of course have to be some definitions provided so as to ensure consistency of practise and compliance with the real requirements of Article 31(2).

    [158] While both methods have advantages, a combination would perhaps be the best means of implementing the Refugee Convention obligation.  Legislation may be too rigid to provide for the somewhat complex analysis of who come within the protected group.  Protection through policy alone may be undesirable in that, at least in the context of temporary entry,207 immigration officers are free to depart from policy.208  The ideal form of implementation is a subject that requires further study.

    7.   Conclusion

    [159] When it ratified the Refugee Convention, New Zealand undertook to fulfil certain obligations in order to offer protection to persecuted people forced to flee their country of origin.  Among those obligations is Article 31(2), which limits the detention of refugee claimants who satisfy certain criteria to situations in which it is necessary.  It has been argued in this paper that New Zealand is currently failing to live up to that obligation.  Neither the Immigration Act, nor immigration policy makes provision for identifying those asylum-seekers eligible for the protection of Article 31(2).  This would be acceptable if no refugee claimants were detained for reasons that were not strictly necessary.  However the current law and policy does not guarantee this, as the discretion not to grant a permit, and therefore to authorise detention under the Immigration Act remains broadly stated.

    [160] Since Article 31(2) has not been fully incorporated into New Zealand law, it is not directly enforceable in domestic Courts.  However, there exists the potential for the Courts to interpret the existing legislation in a way that effectively requires compliance with the obligation.  This could be done through the doctrine of mandatory relevant consideration or through construing a legitimate expectation on behalf of those who satisfy Article 31(2)’s restrictive criteria.  Despite recent enthusiasm for the use of legitimate expectation at High Court level, the failure to address the real issues raised by Article 31(2) as it fits within the context of the legislation and policy means that there is as yet no positive statement from the Courts as to the direction they are likely to take.  But whether they would choose the path forged by Tavita or Teoh is of rather less importance than whether they would choose to interpret the obligation as applicable at all.

    [161] There is as great a chance of the Courts intervening as there is of them refusing to.  Rather than leaving it to the Courts to decide the future of New Zealand’s compliance with its international obligations, the Government should decide whether they wish to comply with Article 31(2) or not.  While there are legitimate arguments both ways, the small group of people being protected by the Article, and the huge personal consequences of detention should make the Government reluctant to make a positive statement that they refuse to provide protection for those who come within the scope of Article 31(2).  Implementing Article 31(2) would have minimal detrimental effects, yet would avoid much hardship on the part of the refugees New Zealand agreed to protect through ratifying the Convention.  Bibliography



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  •   Australia
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  •   United States of America
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    1 New Zealand acceded to the Refugee Convention 1951 on 30 June 1960, and the 1967 Protocol Relating to the Status of Refugees (which extends the applicability of the 1951 Convention by removing temporal and geographic restrictions) on 6 August 1973.  These documents are referred to collectively for the purposes of this paper as “the Refugee Convention”, or simply “the Convention”.

    2 Goodwin-Gill, G, The Refugee in International Law, Clarendon Press, Oxford, 1996, (2nd ed.), at p279.  For a discussion of the quota refugee programme see, Naden, C, "The Chosen", Metro, March 2000, 80.

    3 Haines R, An Overview of Refugee Law in New Zealand: Background and Current Issues, Paper delivered at the International Association of Refugee Law Judges, Auckland Conference, 10 March 2000, para. 14.  See also Immigration Act 1987 s129F(1)(a).

    4 Refugee Convention, Article 1A.

    5 Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 19-20, and Refugee Appeal No. 2039/93 Re MN (12 February 1996) 14-16.

    6 Hathaway, J, The Law of Refugee Status, Butterworths, Toronto, (1991), at p10.

    7 UNHCR statistics record New Zealand as having received 2,870 applications for refugee status in 1998.  See <>

    8 At September 1998, the average time for a first instance decision on refugee status was 355 days.  See Haines, R, “International Law and Refugees in New Zealand” [1999] NZL Review 119 at 139. More recent estimates have stated the period to be closer to 2 years: Smellie, P, “Refugees left in limbo”, Sunday Star-Times, December 5, 1999, pA6.

    9 Current practise in New Zealand is for immigration detainees to be kept most often at Mt Eden Prison, Auckland.
    10 For more on the human cost of detention see below at chapter 5.2.

    11 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1979, para. 28

    12 Ibid. para. 28.

    13 UNHCR, “Fair and expeditious asylum procedures”, Nov. 1994, cited in Dunstan, R. “United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention” (1998) 10 IJRL 205, at 213.

    14 Immigration Act 1987, s129X(1).

    15 Ibid, s129X(2).

    16 Grahl-Madsen, A, Commentary on the Refugee Convention 1951, Division of International Protection of the United Nations High Commissioner for Refugees, Geneva, 1997 (reprint), at 180.  See also Weis, infra at note 20 at 200.

    17 Grahl-Madsen, ibid. at 180.

    18  See text of Article 31(1) below at chapter 2.4.

    19 Refugee Convention, Article 31(1).
    20 See Weis, P. (ed.), The Refugee Convention 1951, Cambridge University Press, Cambridge, 1995, at 279.

    21 UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers, 1999, guideline 2.

    22 Refugee Convention, Article 31(1).

    23 Supra at note 20 at 295.

    24 Supra at note 16 at 179.

    25 Ibid. at 179-180.

    26 Supra at note 20 at 295.

    27 Supra at note 16 at 180.
    28 Supra at note 21 at Introduction, para. 4.
    29 Abu v Superintendent Mount Eden Women’s Prison (Potter J, High Court Auckland, 24 December 1999) at para. 15.

    30 Supra at note 2 at 249, recording the authors observations of the sessions.  For further discussion of the ExCom and their conclusion on this matter see Chapter 3.3.1.

    31 International Covenant on Civil and Political Rights, Article 9.

    32 See discussion of difficulties in obtaining valid travel documents above in Chapter 2.3.

    33 Refugee Convention, Article 31(1).

    34 Weis, supra at note 20 at 280. Grahl-Madsen, supra at note 16 at 175.

    35 Supra at note 29.

    36 Ibid. at para. 15, emphasis in original.

    37 R v Uxbridge Magistrates’ Court [1999] 4 All ER 520 at 527

    38 For instance in the later stages of the drafting process the High Commissioner for Refugees expressed a wish to avoid placing on refugees “the very unfair onus of proving that he was unable to find even temporary asylum anywhere”.  The wording of the article was changed from “being unable to find asylum even temporarily in a country other than the country in which his life or freedom would be threatened” to the current form to avoid that type of unfairness.   See Weis, supra at note 20 at 297 - 301.

    39 Handbook, supra at note 11; UNHCR Guidelines on Detention, supra at note 21.

    40 Supra at 37, at 527 - 528.

    41 Supra at note 21 at Introduction, para. 4.

    42 Supra at note 37 at 528.

    43 Supra at note 21 at Introduction, para. 4.

    44 Supra at note 37 at 524 - 525.

    45 Ibid. at 529.

    46 Supra at note 21 at Introduction, para. 4.

    47 United Kingdom representative, second session of Universal Declaration of Human Rights Drafting Committee, E/CN.4/SR.56, 4 June 1948, p10, cited in Alfredsson & Eide (eds.), The Universal Declaration of Human Rights: A Common Standard of Achievement, Martinus Nijhoff Publishers, The Hague, 1999, p282.  See also Grahl-Madsen, supra at note 16 at 168.

    48 Supra at note 2 at 247.

    49 Brownlie, I, Principles of Public International Law, Clarendon Press, Oxford, 1998 (5th ed.) at 100.

    50 See for instance the discussion on the drafting of Article 14 of the Universal Declaration of Human Rights, where States were prepared to guarantee the right to seek and enjoy asylum, but not to bind themselves to granting asylum, supra at note 47.  Significantly, even this right was not carried forward to the International Covenant on Civil and Political Rights.

    51 Refugee Convention Article 33.

    52 Evidenced in the debate surrounding the formulation of ExCom Conclusion No.44.  See discussion in Goodwin-Gill, supra at note 2 at 249 - 250.

    53 UNHCR, Note on accession to international instruments and the detention of refugees and asylum-seekers: UN doc. EC/SCP/44 (19 Aug. 1986) para 25.

    54 Supra at note 2 at 250.

    55 Ibid at 250 at footnote 15 - Argument made by Netherlands representative during formulation of ExCom Conclusion No.44, discussed further below at chapter 3.3.1.

    56 Supra at note 21 at guideline 1.

    57 Immigration Act 1987, s128(5).

    58 Huscroft & Rishworth, Rights and Freedoms, Brooker’s, Wellington, 1995. See Temese v Police (1992) 9 CRNZ 425 (CA) and Police v Smith & Herewini [1994] 2 NZLR 306 (HC).

    59 Guzzardi v Italy, Judgment of 6 Nov. 1980 (No. 39) 3 E.H.R.R. 333 at para. 95.

    60 Supra at note 20 at 299.

    61 United Nations General Assembly resolution. 1166(XII), 26 Nov. 1957, and Economic and Social Council resolution. 672(XXV), 30 Apr. 1958. Hereafter referred to as ExCom.

    62 UNGA res., ibid. at par. 5(c)

    63 Supra at note 2 at 215;  Sztucki, Infra at note 58.

    64  Supra at note 2 at 249.

    65 Executive Committee Conclusion No. 44 (XXXVII), “Detention of Refugees and Asylum-Seekers”, 1986, para. (b).

    66 Supra at note 2 at 249-250.

    67 See below at chapter 3.3.2.

    68 Sztucki, J, “The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme”, (1989) 1 IJRL 285.

    69 Ibid.

    70 Statute of UNHCR, 1950, reproduced in Goodwin-Gill, supra at note 2 at 385-389.

    71 Supra at note 21 at Introduction, para. 1.
    72 Supra at note 2 at 247.

    73 Refugee Convention, Article 33(2).

    74 Ibid. Article 9.

    75 Supra at note 37.

    76 New Zealand Immigration Service Operations Manual, C4.25 a.  For further discussion see chapter 4.2.

    77 Supra at note 21 at guideline 3.

    78 For a discussion of Australia’s deterrence policy see McKiernan, J, “The Political Imperative: Defend, Deter, Detain”, in Crock, M (ed.) Protection or Punishment The Federation Press, Sydney, 1993, 3.
    79 For a discussion of US policy in this regard see Helton, A, “The Detention of Asylum-Seekers in the United States and Canada”, in Adelman (ed) Refugee Policy: Canada and the United States, York Lane Press Ltd, Toronto, 1991, p253

    80 Supra at note 21 at guideline 3.

    81 House of Representatives, Hansard, 5 May 1992, 2372, cited in Poynder, N, “Human Rights Law and the Detention of Asylum-Seekers” in Crock, M (ed.) Protection or Punishment The Federation Press, Sydney, 1993, 60, at p67.

    82 It is generally understood to be immoral to use people as a means to an ends; Immanuel Kant, see Handerich, T (ed), The Oxford Companion to Philosophy, Oxford University Press, Oxford, 1995, p438. When the people being used are asylum-seekers, and among them are likely to be a number who have suffered high levels of persecution, it is surely even more reprehensible.

    83 For instance in 1997, 926 applications were rejected by the Refugee Status Branch and the Refugee Status Appeals Authority, yet only 79 were removed. In 1996 16 of 1006 were removed. See Haines, supra at note 8 at 138.

    84 Supra at note 16 at 181.

    85 Ibid. at 181.

    86 Hereafter "the Act” or “the Immigration Act”.  For the purposes of footnotes, the Act will be abbreviated to "IA".

    87 IA, ss4(1) & (2).

    88 Immigration Regulations 1999, Schedule 1.

    89 IA s9(1).

    90 IA, ss128(5) & (7).

    91 Refugee Convention Article 33. Following the Immigration Amendment Act 1999, this is recognised in statute, at s129X(1).

    92 IA, s128(9).

    93 IA, s128(13), repealed.

    94 IA, s55.

    95 IA, s128(13B)(a) as substituted by Immigration Amendment Act 1999, s37(2).

    96 IA, s128(13B)(b) as substituted by Immigration Amendment Act 1999, s37(2).

    97 House of Representatives, Hansard, vol. 578, 17351, Hon. Tuariki Delamere.

    98 See Select Committee discussion, House of Representatives, Hansard, vol. 576, 15633 - 15639.  Concerns from UNHCR were tabled; see below in chapter 4.3.

    99 IA, s128A(4).

    100 IA, s128A(1)(ii).

    101 IA, s128B(1).

    102 IA, s7(1).

    103 IA, s128B(5)(a), now repealed.

    104 For details of the good character requirement see Immigration Service Policy Manual, A5.

    105 IA, s128B(5)(a) as substituted by Immigration Amendment Act 1999, s39(1).

    106 IA, s13A(1).

    107 Hereafter “the Manual”.

    108 Manual, Y3.1.

    109 Manual, Y3.65.

    110 Manual, C1.1.

    111 There is one statement that refugees will “normally” be granted temporary permits - E8.5.1e.  See discussion of the implications of this terminology below at chapter 5.5.
    112  Manual, E8.5.10.

    113 Manual, C4.25 d, See also E8.5.10.

    114 E v Attorney-General (Fisher J, High Court Auckland, 29 November 1999).

    115 See discussion below at chapter 5.5.

    116 Manual, C6.25.

    117 Manual, C4.25 a.

    118 Supra at note 21, guideline 4.

    119 IA, s128.

    120 IA, s128B(1)(b).

    121 IA, s128B(1)(a).

    122  Supra at note 2 at 240-241.

    123 UNHCR submissions on Immigration Amendment Bill, read into the record by Lianne Dalziel, House of Representatives, Hansard, vol. 576, 15635.

    124 Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC). Sieghart, P, The International Law of Human Rights, Clarendon Press, Oxford, 1983, 40.

    125 Ashby v Minister of Immigration [1981] 1NZLR 222.

    126 King-Ansell v Police [1979] 2NZLR 531 (CA).

    127 Bangalore Principles, Commonwealth Judicial Colloquium 1998, cited in Elias, S, “The Impact of International Conventions on Domestic Law", Paper delivered at the International Association of Refugee Law Judges, Auckland Conference, 10 March 2000, 1.

    128 Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J).  See discussion in Haines, R, The Legal Condition of Refugees in New Zealand Legal Research Foundation, Auckland, 1995 at para. 3.  The Court of Appeal recommended the refugee status determination process should put on a statutory basis in the recent case of Butler v Attorney General [1999] NZAR 205 at 219 - 220.

    129 IA, Sixth Schedule, inserted by Immigration Amendment Act 1999, s60.

    130 Acts Interpretation Act 1924, s5(h).

    131 Keith, K, “New Zealand Treaty Practice: The Executive and the Legislature”, (1964) 1 NZULR 272, at 297-298.

    132 IA, s129D.

    133 See for instance IA, ss 129F(1)(a), (b), 129L(1)(a), (c), (f), & 129R, all inserted by inserted by Immigration Amendment Act 1999, s40.

    134 IA, s129X, inserted by Immigration Amendment Act 1999, s40.  In fact, this absolute bar on removal is actually wider than the Convention bar on refoulement, since the Convention only prohibits removal to a country where the person faces persecution.

    135 Supra at note 8 at 141.

    136 IA, s129W.

    137 IA, s129X(2).

    138 IA, s9(1)(a).  Section 8(1)(a) contains an equivalent provision in relation to residence permits.

    139 Supra at note 131 at 297-298.

    140 Aronson & Dyer, Judicial Review of Administrative Action LBC Information Services, Sydney, 1996,  290.

    141 IA, s128(13B).

    142 IA, s129X(2), emphasis added.

    143 Tavita v Minister of Immigration [1994] 2 NZLR 257.

    144 Ibid at 266.  Later cases have denied that the right in question need form the “starting point” for the decision.  See Puli’uvea v Removal Authority [1996] 3 NZLR 54; Rajan v Minister of Immigration [1996] 3 NZLR 543.

    145 Supra at note 143 at 266: “…a final decision on the argument [regarding the relevance of international treaties] is neither necessary nor desirable”.

    146 Puli’uvea v Removal Review Authority and Rajan v Minister of Immigration, citations supra at note 144.

    147 See chapter 3.

    148 Joseph P, “Constitutional Law”, (1997) NZ Law Rev, 230.

    149 Supra at note 140 at 414, 416.

    150 Minister of Immigration and Ethnic Affairs v Teoh (1995) 69 ALJR 423.  The legitimate expectation approach was preferred to imposing a mandatory relevant consideration because the latter was said to incorporate international law into domestic law by “the back door”.

    151 Ibid.

    152 Allars, M, “One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government” (1995) 17 Sydney Law Review 204.

    153 Taggart M, “Legitimate Expectations and Treaties in the High Court of Australia” (1996) 112 LQR 50.

    154 Thomas v Baptiste [1999] 3 WLR 249, at 262 - 263.  In that case, the Privy Council agreed that Trinidad and Tobago's ratification of the American Convention on Human Rights, along with moves by the government to implement it, short of legislation, could have created a legitimate expectation that an execution would not occur before a petition was finally determined.  However, the government had issued instructions that effectively dispelled any such expectation.

    155 Note that in the E decision, discussed in chapter 5.5, there was no discussion of the potential inconsistency between interpreting a Convention as a legitimate expectation and the Teoh approach.  This may show the acceptance of the applicability of legitimate expectation in the refugee area, or it may be another of the problems with the judgment.

    156 Supra at note 114.  Discussed in chapter 5.5.

    157 Supra at note 143.

    158 Supra at note 37 at 540.

    159 Supra at note 154 at 262.

    160  Supra at note 114 at para 53.

    161 Ibid.

    162 Ibid. at para. 52.

    163 Mager & Clark, “Creech slams asylum ruling”, NZ Herald, Wednesday, December 1, 1999, A3.

    164 Supra at note 114 at para 28.  For the text of Art 31, see above at chapter 2.4.

    165 Ibid. at para. 29.
    166 NZIS Operations Manual E8.5.1e, cited in E v Attorney General, supra at note 114 at para. 32.

    167 See for instance Operations Manual C4.25d and E8.5.10a, see above at chapter 4.2.

    168 Supra at note 140 at 316: “…we think [application of the doctrine of legitimate expectation] is justified where the expectation is based on an undertaking or representation, intended as such by the decision maker”.  Emphasis added, internal references omitted.

    169 Teoh, supra at note 150.  Thomas v Baptiste, supra at note 154.

    170 Supra at note 114 at para 38.

    171 See Colloquium speech at chapter 5.1, note 127.

    172 Supra at note 143 at 266.

    173 Supra at note 37 at 540.

    174 Sellers v Maritime Safety Inspector [1999] 2 NZLR 44.

    175 Essentially Australian territory. Migration Reform Act 1992, s2.

    176  Ibid. s54W.

    177 Human Rights Watch, “Country Reports - United States: Locked Away: Immigration Detainees in Local Jails in the United States”  (September 1998), available on United Nations RefWorld.

    178 Supra at note 79 at 257: In October 1989, 7,641 aliens were in INS custody.

    179 Myung Oak, K, "York County, PA, Benefits From Tougher Immigration Laws," Philadelphia Daily News, May 14, 1998, cited in "Locked Away" supra at note 177.

    180  Anti-Terrorism and Effective Death Penalty Act 1996 and Illegal Immigration Reform and Immigrant Responsibility Act 1996.

    181 Such crimes now include minor drug offences and some cases of shoplifting and drink driving.  Immigration and Nationality Act, 1952.  See discussion in “Locked Away”, supra at note 177 and ; Amnesty International, “Amnesty International Report 1998 - United States”, as published on United Nations RefWorld.

    182 Rizza, N, “INS Detention: The Impact on Asylum Seekers” Refugee Reports, vol XVII No. 8, Aug 30, 1996.  Available at <>.  In fact, in many cases there is no differentiation made between asylum-seekers and criminal inmates - 60% of INS detainees are kept in local prisons: “Locked Away” supra at note 177.

    183 Lambert, H, Seeking Asylum, Martinus Nijhoff Publishers, Dordrecht, 1995, 104 - 108.

    184 In 1994, 2/3 of asylum-seekers were detained.  Home Office statistics cited in Lambert, ibid. at 108.

    185 See the discussion of this point at chapter 3.3.

    186 Australia: Crock, M (ed), Protection or Punishment: The Detention of Asylum-Seekers in Australia, The Federation Press, Sydney, 1993; Human Rights and Equal Opportunities Commission, Those who’ve come across the seas, 11 May 1998; Amnesty International, “Amnesty International Report 1999 - Australia”, as published on United Nations RefWorld;  USA: Amnesty International, "United States of America: Lost in the Labyrinth - Detention of Asylum-Seekers", September 1999, available at <>; Amnesty International, “Amnesty International Report 1999 - United States”, as published on United Nations RefWorld; Rizza, supra at note 182; Human Rights Watch, supra at note 177; UK: Dunstan, R, “United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention”, (1998) 10 IJRL 205.

    187 Supra at note 163 .

    188 Supra at note 8.

    189  “Price of Prison”, New Zealand Herald, March 23, 2000, pA10.

    190 Becker & Silove, “The Psychological and Psychosocial Effects of Prolonged Detention”, 81 at 83, in Crock (ed.) Protection or Punishment, The Federation Press, Sydney, 1993 at 89.

    191 For instance, a person may have been persecuted in the past, but the fear of it continuing in the future may not be well-founded, so that they will not be classified as a refugee.  See also Becker & Silove’s discussion of witnessing torture as constituting a traumatic stressor. Ibid. at 82.

    192 Supra at note 190 at 90.

    193 For instance see the account of a Sri Lankan refugee raped by guards in a jail in Togo given by Rizza, supra at note 182.

    194 Supra at note 190.

    195 Ibid.

    196 Ibid. at 84.

    197 Ibid at 87.

    198 Immigration Amendment Bill No. 183 - 2, as reported from the Social Services Committee.

    199 Ibid. at page ii, Commentary.  The “reinforcement” though, is strictly in the context of refugee status determination.  See discussion supra at 5.2.

    200 See statement of Cooke P in Tavita, in chapter 5.6.

    201 For instance if it was claimed that detention contrary to Art31(2) constituted arbitrary detention contrary to Article 9 of the ICCPR.

    202 See above at chapter 5.4.

    203 Joint Statement of the Minister for Foreign Affairs and the Attorney General, 10 May 1995.

    204 Refugee Convention Article 35(2)(c) - “Contracting States undertake to provide [the UNHCR]…with information …concerning…laws, regulations and decrees which are, or may hereafter be, in force relating to refugees”.

    205 For instance, while it is not within the scope of this paper to discuss the option in depth, the government could choose to implement the alternatives to detention advocated by UNHCR and other NGOs such as the  European Council for Refugees and Exiles.

    206 IA, s13A(1).

    207 Cf. IA, s13C - Immigration officers are under a statutory duty to apply residence policy.

    208 Chen v Minister of Immigration [1992] NZAR 261.