Inaugural Meeting IARLJ Australia/New Zealand Chapter - 10 March 2000


Rodger Haines QC, Deputy Chair, Refugee Status Appeals Authority 


Whether Refugee Convention incorporated into domestic law

The approach of the RSAA
Overseas case law
United States of America
Academic writers

The independence issue
Detention of asylum seekers

Civil war
Persecution - the case of the Chinese Indonesians
Internal protection alternative
Article 33(2) - Refugees constituting a danger to the community
Procedures for CAT cases



[1] Accession by New Zealand to the Refugee Convention took place on 30 June 1960 and to the Protocol on 6 August 19731.  Established procedures for determining claims to refugee status have existed in New Zealand since at least 1978.2

[2] The initial procedures required that the determination of refugee status be made by the Ministers of Foreign Affairs and Immigration, acting jointly on a recommendation from a committee of government officials known as the Inter-departmental Committee on Refugees.  Following the landmark decision of Benipal v Ministers of Foreign Affairs and Immigration,3 it was recognized that those procedures were inadequate.4  However, it was not until a change in government following the October 1990 general election that the incoming administration, on 17 December 1990, approved new procedures for the determination of applications for refugee status.  On 11 March 1991 those procedures were incorporated into Terms of Reference and comprised a first instance decision from which there was a right of appeal to an appellate tribunal.5  At first instance, the applications were processed within the New Zealand Immigration Service by immigration officers employed in a specialized section of the Service known as the Refugee Status Branch.  The refugee claimant was interviewed and subsequently given an opportunity to comment in writing on the interview report compiled by the interviewing officer.

[3] Thereafter a decision was made as to whether the claim was accepted or declined.  Where the claim was declined, there was a right of appeal to the Refugee Status Appeals Authority, an independent body staffed by practising or recently retired lawyers drawn entirely from outside Government.  A representative of the UNHCR was ex officio a member of the Authority.  The jurisdiction of the Authority was strictly confined to the determination of refugee issues and it was precluded from making any immigration decisions including whether successful refugee claimants should be granted a residence permit.  Although the Terms of Reference were subsequently modified on three separate occasions, the basic outline of the procedures remained unchanged.6

[4] The unusual feature of this refugee determination system was that it operated on an extra-statutory basis.  The view taken in the High Court was that the procedures were the creature of the prerogative but nonetheless amenable to judicial review.7  However, the Court of Appeal twice expressed reservations as to both the reviewability of the decisions and as to the appropriateness of the procedures being extra-statutory.8  Legislative reform was finally enacted in 1999.9


[5] The Immigration Amendment Act 1999, s 40 inserted a new Part VIA into the Immigration Act 1987.10  While the new Part VIA places the refugee determination procedures on a statutory footing, no change has been made to the system itself and it continues to comprise two tiers.

[6] The first instance decision is taken by a refugee status officer.11  From this decision there is a right of appeal to the Refugee Status Appeals Authority (RSAA) which is “continued” as a body though it now has the powers of a Commission of Inquiry.12  The decision of the RSAA is final, subject only to review.13  The grounds of judicial review have not been modified or restricted, but the proceedings must be commenced with three months after the date of the decision, unless the High Court decides that, by reason of special circumstances, further time should be allowed.14

Whether Refugee Convention incorporated into domestic law

[7] One change introduced by the Immigration Amendment Act 1999 was the scheduling of the text of the 1951 Refugee Convention and of the 1967 Protocol to the principal Act in the form of the Sixth Schedule.15  But there is no express provision incorporating the terms of these instruments into New Zealand domestic law.  On one view, the text has been annexed only for information.16  However, the situation is less than clear:



[8] Because Part VIA of the Immigration Act 1987 addresses only procedural issues (as did the Terms of Reference prior to 1 October 1999), the refugee law of New Zealand is to be found in the decisions of the RSAA, of the High Court and of the Court of Appeal.

[9] By way of contrast to the experience of Australia, Canada and the United Kingdom, few decisions of the RSAA have reached the High Court on judicial review, and even fewer still have reached the Court of Appeal.  Furthermore, only a small proportion of these cases have raised issues of substantive refugee law.  Most have focussed on procedural and fairness issues which are beyond the scope of this paper.17  This is a remarkable situation, given that the RSAA has been determining refugee appeals for a period approaching ten years.

[10] In the period 1992 to 1999, approximately 46 judicial review proceedings challenging decisions of the RSAA were filed in the High Court.  Of these, eight were discontinued, 19 dismissed, 11 settled by way of a consent order setting aside the RSAA decision and remitting the case for rehearing while in a further six cases which went to trial the decision of the RSAA was set aside and a rehearing ordered.  Hearings are pending in another two cases.18  These statistics, spanning an eight year period, are to be contrasted with the claim made in September 1998 by the (then) Minister of Immigration on the second reading of the Immigration Amendment Bill that sixty percent of all judicial review cases in New Zealand are immigration related.19  Even if the figure given by the Minister is accepted at face value, it is clear that refugee cases make up only a small fraction of immigration cases coming before the Courts.

[11] Of the High Court decisions, only three have addressed issues arising out of Article 1 of the Convention.  In two of these cases, the real chance formulation of the “well-founded” fear standard prescribed by Article 1A(2) is referred to approvingly, but only in passing and without discussion or examination of the issues.20  In another two there is an examination of Articles 1F(a) and 1F(b).21

[12] Three cases have been decided by the Court of Appeal.22  Two only have addressed issues of substantive refugee law but those judgments are of considerable significance.  In the first, the Court addressed the issue of internal protection (known also as the Internal Flight Alternative or relocation issue).23  In the second, the issues addressed were the meaning of “serious crime” in the context of Article 1F(b) and whether a proportionality exercise is required in the exclusion context.24

[13] Given the numerically small number of cases which have been considered on their merits by the High Court and by the Court of Appeal, the bulk of the substantive refugee law of New Zealand is to be found in the decisions of the RSAA.  For this reason alone, the approach of the RSAA to issues of refugee law must be briefly noted.

The approach of the RSAA

[14] From the outset, the RSAA has approached issues of substantive refugee law on the basis that the definition is drawn from an international convention and is not to be seen as a “New Zealand” definition.  While this proposition is, of course, self-evident, the RSAA has consciously sought out “the best” of the case law of other State Parties to the Convention and has also relied, where appropriate, on respected academics and other commentators.  It has endeavoured to expose and articulate the principles it has applied in the hope that this will assist reviewing courts to understand why one path was chosen in preference to another.  That the membership of the RSAA is numerically small is an advantage.25  It has facilitated training and the forging of a broad consensus among members as to the interpretation and application of the Convention.  Consistency of decisions on refugee status is clearly demanded by the Convention and, beyond that, by the rule of law.26

Overseas case law

[15] The search for “the best” does have its hazards.  Experience, skill and judgment are required.  Much overseas case law requires “de-coding” from the historical, social, constitutional and domestic law settings.


[16] Initially, the decisions of the Federal Court and Supreme Court of Canada appeared to set the benchmark, as exemplified by the seminal decision in Ward.27  But a recent unpublished research paper reviewing subsequent Federal Court of Canada jurisprudence has concluded that cases interpreting the “particular social group” ground reveal a rather diverse body of jurisprudence not united by a consistent and principled analytical approach.28  The authors suggest that although the principles articulated in Ward are frequently cited as authority, the framework of analysis developed by the Supreme Court is rarely applied.  It could also be added in addition to these points that important areas of Canadian refugee law have in recent years been developed not by the courts, but by administrators who have published “guidelines” on a broad range of topics.  Not only has this re-directed the course of the Canadian jurisprudence, the “patent unreasonableness” test applied by the Federal Court - Trial Division in granting leave to bring judicial review proceedings has arguably lessened the intensity of review.


[17] The RSAA has borrowed freely from the excellent refugee jurisprudence which has grown exponentially in both the Federal Court and in the High Court of Australia since the landmark decision in Chan.29

[18] But a more cautious approach to Australian case law may now be necessary given the (on one view) dramatic legislative curtailment of the scope of judicial review of decisions of the Refugee Review Tribunal.  This legislation excludes from review both a breach of the rules of natural justice and unreasonableness.30

United States of America

[19] By and large, the RSAA has found the USA refugee jurisprudence both insular and surprisingly undeveloped.  Even if access issues can be overcome, the decoding exercise is substantial.31


[20] The jurisprudence of the European State Parties to the Convention is equally difficult to access.  This is not a language issue.  For example, French case law does not in general develop legal reasoning.32  There is also the Joint Position on the Harmonized Application of the Term “Refugee” in Article 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees adopted by the Justice and Home Affairs Council of the European Union on 4 March 1996 on the basis of Article K.3 of the Treaty on European Union.33  The Joint Position has not been fashioned by courts or refugee decision-makers.  It represents the consensus of the participating governments.  But “harmonization” remains a problematical ambition.  The divergence in European approaches to persecution by non-state agents was strikingly exposed by the “second” Adan decision.34

[21] Decisions of the English courts obviously deserve attention if only because of the shared common law heritage, but an understanding of the sclerotic and, on one view, dysfunctional refugee determination system in the United Kingdom is also necessary.   A possible sense of unease also arises from the fact that the House of Lords has in two recent cases strikingly reversed the Court of Appeal.  See the “first” Adan case and Shah.35  It is telling that a new series of law reports known as the Immigration and Nationality Law Reports emerged in late 1997, apparently to counteract a perceived “conservative” bias in the established series known as the Immigration Appeal Reports.

[22] None of this is new, but one of the challenges to decision-makers who do not often work in this field is the identification of the jurisprudence or academic writing which best facilitates the development of refugee law in a progressive and dynamic manner, while remaining true to the language, object and purpose of the Refugee Convention.

Academic writers

[23] As Lord Lloyd of Berwick observed in Adan v Secretary of State for the Home Department, the views of academic writers are important since it is academic writers who provide the best hope of reaching international consensus on the meaning of the Convention.36   In this regard, the Authority has drawn on the work (inter alia) of Atle Grahl-Madsen37, Professor James C Hathaway38 and Professor Guy S Goodwin Gill39.  Of these writers, it would be fair to say that Professor Hathaway’s work has been drawn on the most as his text represents the most thorough and detailed examination of Article 1 currently available.  In addition, the conceptualized approach to the Convention advocated by Professor Hathaway has allowed a re-invigorated and dynamic interpretive approach to the Convention, as a reading of the Ward decision will show.  Professor Hathaway was rightly described by by Lord Lloyd in Shah as “one of the leading figures in the academic field”.40

[24] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, a remarkable document in its day (1979) is also a valuable resource but with the passage of time and the developing understanding of the Convention, several paragraphs are no longer good law.


The independence issue

[25] The Immigration Amendment Act 1999 made welcome progress in securing a degree of independence for the refugee determination system in New Zealand.  Refugee status officers must be specifically designated by the chief executive of the Department of Labour and no person so designated can be currently employed in making permit decisions or in administering the removal provisions of the Immigration Act 1987.41

[26] More significantly, the RSAA has been given statutory recognition and the powers of a Commission of Inquiry.42  But the Authority’s budget remains within the Department of Labour vote and the Authority’s administrative assistance is similarly provided by the Department of Labour.  In fairness to the Department, processes have been put in place which recognize the independence of the RSAA, but the system contains within it inherent tensions, not the least of which is the fact that the RSAA is funded and administered by the same Department on which it sits in judgment.

[27] The appointment of members of the RSAA for limited terms is also unsatisfactory when the Minister of Immigration is directly involved in the appointment process.  The dangers were highlighted last year when the (then) Minister of Immigration publicly attacked members of the Deportation Review Tribunal for setting aside a deportation order earlier made by the Minister himself.  He warned that changes would be made to the Tribunal.43  When the terms of two of the members came up for renewal a short time later, their appointments were not continued by the (then) Minister of Justice because it was said that Tribunal members should be appointed for two terms only.44   In a letter to the Editor of Northern Law News (published weekly by the Auckland District Law Society) the Minister of Justice explained his decision on the basis that:45

[28] There is a very real issue as to whether these guidelines are applicable to a highly specialized tribunal such as the RSAA.  The situation requires early resolution.
Detention of asylum seekers

[29] The detention of asylum seekers is a controversial issue.  In proceedings arising from detention procedures initiated during the Gulf War, the Court of Appeal noted the absence of an express legislative power to detain applicants for refugee status while their status is being investigated.46  However, no such power was conferred by the subsequently enacted  Immigration Amendment Act 1991.

[30] Nor is such express power contained in the Immigration Amendment Act 1999.  But in provisions originally scheduled to come into effect on 1 October 1999, the turnaround procedures were amended to allow for the 28 day period of detention permitted by s 128(7) and (14) to be extended by a District Court Judge either for seven days at a time or, where the person detained is a member of a group of people who arrived in New Zealand on the same ship or aircraft, for such longer period as the Judge thinks necessary in the circumstances “to allow all the persons in the group concerned to be properly dealt with”.47

[31] On 15 June 1999 the Minister of Immigration announced that a vessel had left Honiara in the Solomon Islands on the previous Saturday evening with 102 Chinese nationals aboard, with the declared intention of landing in New Zealand.48  On the following day, 16 June 1999, Parliament enacted the Immigration Amendment Act (No.  2) 1999 which had the effect of bringing into force from 16 June 1999 the amendments to the turnaround provisions.49  It subsequently transpired that the vessel concerned had landed in Papua New Guinea instead.50

[32] The new detention provisions have yet to be tested.  The decision in F v Superintendent of Mt Eden Prison51 delivered on 5 August 1999 is not in point.  There, the lawfulness of the particular detention (which was upheld) turned on the interpretation of a provision unaffected by the 1999 amendments.

[33] The detention issue is well beyond the scope of this paper, but a hunger strike campaign conducted in late 1999 by a group of detained asylum seekers did highlight the vulnerability of the refugee determination system to manipulation.

[34] On 28 October 1999 some 16 refugee claimants held in custody at Mt Eden prison commenced a hunger strike.  Their protest was not directed against any matter relating to the hearing of their refugee claims, but against their detention in custody and in particular, the refusal by the New Zealand Immigration Service to issue them with a temporary permit pending the hearing of their cases.  Their challenge to that refusal is currently before the Court of Appeal.52

[35] When each hunger striker was seen by a refugee status officer in connection with his refugee claim, he declined to be interviewed on the grounds that he had not eaten for several days, was weak and could not speak properly.  After several attempts to interview the men had failed for similar reasons, their refugee claims were declined on the grounds that as the person was unwilling to be interviewed, no determination could be made that he was a refugee within the meaning of Article 1A(2) of the Convention.  From these decisions each person appealed.  Being custody cases, the appeals were given priority over all other business of the RSAA, causing delays in other cases and considerable administrative dislocation.  On 10 November 1999 and on the days which followed, the Authority began to hear the appeals.  On each occasion counsel sought an adjournment on the grounds that the particular appellant was, by reason of the hunger strike, medically unfit to present his case.  In each instance, an adjournment was granted but a further date fixed.  When that further date came round, a further adjournment application was presented on identical grounds.

[36] By the end of December 1999, approximately one month of member sitting time had been lost and the additional cost to the Secretariat of each appeal was five times that of a normal appeal.  It was abundantly clear that unless and until the hunger strikers abandoned their fast, each and every of them would continue to seek an adjournment of their respective appeals on medical grounds.  In effect the position taken was that until the permit dispute with the New Zealand Immigration Service had been resolved, the men would not prosecute their refugee cases.  They claimed to be acting in good faith as they were not refusing to pursue their appeals before the RSAA, they were simply medically unfit for a hearing.  The stalemate was broken when on 1 December 1999 the hunger strikers were released on bail by the District Court at Otahuhu.  One of the terms of their release was that they pursue their refugee claims with due diligence.  Following a scheduling conference, the Authority on 3 December 1999 issued a Minute allocating further dates of hearing for each of the appeals.  Following further submissions by counsel, the schedule was amended.

[37] The timetable was set to ensure that all the appeals would be heard in the period January to mid March 2000.  However, it quickly transpired that the firm of solicitors representing the men saw the timetable as unduly onerous for the two solicitors handling the cases.   Adjournment applications were foreshadowed because the solicitors were too busy. Surprising though it may seem, the Authority was required to publish a minute reminding the solicitors that the law is clear in that adjournments are not to be granted because counsel instructed has other commitments.53

[38] The emerging concern is in relation to the integrity of the refugee determination process.  The New Zealand procedures have been shaped around the premise that a refugee claimant will have a genuine interest in pursuing that claim and will recognize a responsibility not to imperil the system for other refugee claimants.  As the hunger strike case shows, it is difficult for the system to escape undamaged when a refugee claimant pursues an agenda which subordinates the refugee claim to other priorities.

[39] The further concern is that failure by first level decision-makers to interview a refugee claimant and to meaningfully grapple with the refugee claim produces the result that the “appeal” hearing becomes, in effect, a first instance hearing, thus marginalizing the relevance of the first level and imperiling the role of the appellate tribunal.  It may be that there will be circumstances in which this cannot be avoided, as the case of the hunger strikers may show.  But it deserves mention that the 1999 statutory amendments do not require that all refugee claimants be interviewed by a refugee status officer.  The power to interview is discretionary.54  But if no such interview is held, the RSAA is under a mandatory statutory duty to interview.55


[40] In the past six months the RSAA has delivered three decisions of note addressing the issues of civil war, the meaning of persecution and finally, the internal protection alternative.

Civil war

[41] In early 1999 it emerged that refugee status officers had adopted an approach to civil war claims which required the refugee claimant to establish that he or she was more at risk of persecution for a Convention reason than others.  This reading of the Convention was based on the unreported decision of Wilcox J in Periannan Murugasu (1987), a decision of the Refugee Review Tribunal (N 97/16416 (12 August 1998) which cites not only Murugasu but also the decision of Hill J in Mohamed v Minister of Immigration and Multicultural Affairs (1998) 51 ALD 666) and on Adan v Secretary of State for the Home Department where Lord Lloyd (with whom Lord Goff, Lord Nolan and Lord Hope agreed) stated:56

[42] In response to a request by the Refugee Status Branch for guidance, the RSAA in Refugee Appeal No. 71462/99 (27 September 1999) reviewed the principles to be applied in refugee claims arising from civil war situations.

[43] On the state complicity issue, the RSAA reviewed the case law of a number of countries before affirming its own long standing jurisprudence that there are four situations in which it can be said that there is a failure of state protection, namely persecution committed by the state, persecution condoned by the state, persecution tolerated by the state and persecution not condoned and not tolerated by the state but nevertheless present because the state either refuses or is unable to offer adequate protection.57

[44] The more controversial issue which had to be addressed was how, in a civil war situation, a nexus is established between the anticipated harm and the claimant’s race, religion, nationality, membership of a particular social group or political opinion.  As Professor Hathaway points out in The Law of Refugee Status (1991) at p 187, the mere fact that the conflict escaped is based on religion or politics does not make all persons escaping the conflict Convention refugees.  A claimant must show that he or she is differentially at risk.  The view taken by the RSAA is that this does not mean that a person at real risk of serious harm for reason of his or her religion is required to establish that he or she is more at risk of serious harm for reason of religion than others who are equally at real risk of serious harm for reason of their religion.  There is no requirement to show a double-differential risk.  One must not confuse equality of risk of harm with equality of reason for that harm.  Yet on one reading, this is what the House of Lords decision in Adan has held to be the law in the United Kingdom.  The RSAA in Refugee Appeal No. 71462/99 (27 September 1999) held that if this reading of Adan is correct, the decision of their Lordships is not to be followed in New Zealand.  It is of interest to note that Adan has not been followed by the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Abdi, though for differently expressed reasons.58  These two complementary decisions arguably offer a more compelling and penetrating analysis of the issues than those to be found in the speeches in Adan.

Persecution - the case of the Chinese Indonesians

[45] On 30 June 1998 the Minister of Immigration announced that the number of countries whose citizens require transit visas when passing through New Zealand was to increase from 24 to 70.  The measure was said to be “to  manage risks and to clamp down on refugee scams”.59  The Immigration (Transit Visas) Regulations 1998 implemented this decision.60  Dramatically, on 21 October 1998 citizens of Indonesia lost their right of visa-free entry to New Zealand and found themselves in the position of requiring even a transit visa to pass through New Zealand.61  These changes were made to prevent Indonesians of Chinese ethnicity from seeking refugee status in New Zealand in the aftermath of the violence, and in particular the anti-Chinese violence, which occurred on May 13-15, 1998, particularly in Java.62  In announcing the changes, the Minister of Immigration said that there had been over 300 refugee applications in the past four months from Indonesian nationals.  This, he said, was “a very serious trend” and that by suspending the visa-free status for Indonesian nationals, New Zealand was better placed to “manage the risk of people seeking refugee status” upon arrival in New Zealand.63   Following the massive refugee crisis caused by the outflow of Kosovar refugees into Albania, Macedonia and Montenegro, the New Zealand Government moved quickly to prevent the spontaneous arrival of such refugees in New Zealand.  On 1 July 1999 the Immigration (Transit Visas) Regulations 1999 came into force.64  In addition to revoking and replacing the 1998 Regulations, these Regulations added citizens of Albania, Macedonia, Yemen and Yugoslavia to the list of persons who require transit visas.  The New Zealand Government did agree, however, to offer permanent refuge to 200 Kosovar Albanian families with family ties in New Zealand.65

[46] Little attempt has been made to reconcile these new transit visa provisions with New Zealand’s obligations under the Refugee Convention.

[47] In the refugee determination context, the challenge posed by the Indonesian claims was to predict the outcome of the general elections held in Indonesia on 7 June 1999, the outcome of the presidential election held by the People’s Consultative Assembly on 20 October 1999 and finally, the future direction of the new democracy.  Ever present in the background at the time was the ongoing unrest in Aceh, the systematic destruction of East Timor by the Indonesian military, the Muslim-Christian violence in parts of the Indonesian archipelago and the uncertainties inherent in the first attempt since the 1950’s to establish democracy in Indonesia.  The Indonesian refugee claims brought into sharp relief the unique nature of decision-making required by refugee status determination.

[48] The decision of the RSAA in Refugee Appeal No. 71404/99 (29 October 1999) was that a refugee claim based on the assertion that Chinese Indonesians are at risk of persecution by virtue of their race alone, is bound to fail and that the discrimination undoubtedly encountered by Chinese Indonesians does not rise to the level of persecution.

[49] From a jurisprudential approach, the decision possibly illustrates the advantage of the RSAA’s approach to the issue of persecution.  In some jurisdictions the meaning of persecution is derived largely from dictionaries.  This is an inherently limited approach and can lead to an unseemly ransacking of dictionaries before the decision-maker lights upon a phrase or word which assists the resolution of the particular case.

[50] The view taken by the RSAA is that a more principled approach is required to the interpretation exercise, one which can be applied consistently across the broad spectrum of cases.  It has preferred the formulation offered by Professor Hathaway in The Law of Refugee Status (1991) at 104, 108 that refugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard.66  These core human rights are identified in the so-called International Bill of Rights comprising the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966.  To these should now be added the Convention on the Rights of the Child 1989 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984.  While the hierarchy of rights found in these instruments is not to be rigidly or mechanically applied, it does assist a principled analysis of the persecution issue.  The decision-maker is also freed from the inherent limitations of the asylum state’s own domestic law where human rights may be but imperfectly recognised.  This approach also exposes the refugee determination process to the decisions of international bodies such as the Human Rights Committee, the Committee Against Torture, the European Court of Human Rights and the Inter-American Court of Human Rights.  As French J acknowledged in Damouni, the determination whether the treatment feared in any particular case amounts to persecution involves normative judgments going beyond mere fact finding.67

[51] The only remaining point to be made in relation to the Chinese Indonesian cases is that the RSAA left open as an issue not falling for determination on the facts, the question whether an atmosphere of insecurity is a violation of the right to personal security as guaranteed by Article 9(1) of the International Covenant on Civil and Political Rights.

Internal protection alternative

[52] Underlying the Article 1A(2) definition is the notion of protection.  The short issue is whether a person who otherwise satisfies the refugee definition can be denied recognition as a refugee on the grounds that effective state protection is available in his or her country of origin.

[53] The answer in a large number of jurisdictions, including Australia and New Zealand, is that denial of refugee status is indeed appropriate.  The focus of the debate is on the conditions which must exist in the country of origin before such denial can take place.

[54] The position taken by Professor Hathaway in The Law of Refugee Status at 134 is that the internal protection principle should be restricted in its application to persons who can genuinely access domestic protection and for whom the reality of protection is meaningful.  This requires the provision of basic norms of civil, political and socio-economic rights.  The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, para 91 says that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the country, if under all the circumstances, it would not have been reasonable to expect him to do so.

[55] In the period 1991 to 1993, the RSAA, drawing on these two sources, formulated the following test:

[56] The requirements were cumulative.  In other words, before an individual possessing a well-founded fear of persecution could be expected to relocate within the country of origin, it must have been possible to say both that meaningful protection could be genuinely accessed by that person and also that in all the circumstances, it was reasonable for that individual to relocate.

[57] This test was examined in Butler, the first decision of the Court of Appeal to address issues of substantive refugee law.68  The Court added important qualifications to each limb of the RSAA test:

[58] While helpfully identifying the shortcomings of the RSAA test, the Court of Appeal did not disapprove of the basic framework.  But the Court did not suggest an alternative wording to the test.  This was left to the RSAA.

[59] In Refugee Appeal No. 71684/99 (29 October 1999) the RSAA reassessed its jurisprudence in the light of Butler.  It noted also at para 54 of the decision that the Authority had not hitherto attempted to quantify the meaning and content of the protection aspect of the inquiry.  It was also an issue the Court of Appeal had not addressed.  The RSAA concluded that meaningful internal protection requires:

[60] The RSAA concluded that if each of these three cumulative conditions are satisfied, the two limbs of the original test (as modified in Butler) would be satisfied.  That is, if the stated preconditions are met, the refugee claimant will indeed access meaningful state protection and it would be reasonable to expect him or her to access such protection.  But in view of the more explicit articulation of the inquiry as now formulated, it was no longer necessary to pose any question in terms of “reasonableness”.  The term was accordingly dropped from the inquiry as surplusage.

[61] Underlying the formulation of this test is recognition of the fact that the issue of internal protection only arises if an individual first satisfies the inclusion clause criteria in some part of the country of origin.  Ordinarily, assuming no issue of exclusion or cessation, arises the grant of refugee status could be expected to follow.  Seen in this light, the internal protection principle has the effect of denying refugee status to a person who otherwise satisfies the Convention definition.  The re-formulated test can be understood as requiring that the claimant receive in his or her country of origin the same level of protection which is guaranteed by the Refugee Convention itself.  Hence the civil, political and socio-economic rights referred to in the third limb of the new test are those which State Parties are required to extend under the Refugee Convention itself, i.e. the Convention identifies the irreducible core minimum human rights agreed to by the State Parties.

[62] The new formulation of issues employed by the RSAA now reads:

[63] In arriving at this formulation the RSAA was assisted by a collective study of the internal protection alternative initiated by Professor Hathaway and convened by the Programme in Refugee and Asylum Law, the University of Michigan Law School.  This study led to the publication of a set of “guidelines” known as The Michigan Guidelines on the Internal Protection Alternative (April 1999).  While the RSAA has eschewed guidelines (for reasons given at para 63 of the decision) it felt able to draw on the Michigan Guidelines because, to a very large degree, they reflect current New Zealand jurisprudence.  The Butler decision prepared the way for New Zealand to adopt the more principled approach to internal protection suggested by the Michigan Guidelines. In practice, the new formulation does add to the “burden” of decision-making because the inquiry mandated is both more focussed and more rigorous.  However, it is seen by members of the RSAA and by most lawyers practising refugee law in Auckland as a positive and beneficial development.  Some lawyers, however, will be challenging the absence of an explicit “reasonableness”element, even though that element is now the unarticulated premise of each of the three elements of the test.

[64] Two emerging issues deserve brief mention.

Article 33(2) - Refugees constituting a danger to the community

[65] Article 33 provides:

[66] It can be seen that Article 33(2) permits the expulsion of refugees in two circumstances: [67] Security issues are addressed by Parts III and IVA of the Immigration Act 1987 which anticipate a decision by the Executive with limited rights of appeal.71  For reasons which are not clear, both limbs of Article 33(2) have been brought under the security regime, even though only the first limb is security related.72  This is anomalous as the rationale for the curtailment of appeal and review rights in the security context does not extend to the expulsion of criminal offenders who, in another context, enjoy a full de novo right of appeal to the Deportation Review Tribunal under Part IV of the Act.  In the interests of maintaining a consistent and comprehensive refugee determination process, cases which fall under the second limb of Article 33(2) should be brought within the existing two tier determination process prescribed by Part VIA.

Procedures for CAT cases

[68] The non-refoulement obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 is not qualified by the restrictions found in the Refugee Convention.  Article 3 provides:

[69] It will be seen that there are no exceptions relating to national security or danger to the community.  Nor is the Convention against Torture restricted by the need to show that the “substantial grounds for believing” are for reasons of race, religion, nationality, membership of a particular social group or political opinion.  Nor are there exclusion provisions relating, for example, to persons who have committed crimes against humanity.

[70] Refugee claimants who fail to meet the Refugee Convention criteria, or who are excluded from that Convention, may nevertheless be at risk of torture in the country of origin.  They have a clear interest in availing themselves of the protection guaranteed by Article 3 of the Torture Convention.  For a recent example see S v Refugee Status Appeals Authority73.  Yet there are no New Zealand procedures for the determination of the “substantial grounds for believing” prescribed by Article 3 of the Convention against Torture.  This is a surprising, if not serious omission, given that New Zealand recognizes the competence of the Committee against Torture to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention.74  Consideration ought to be given to adapting the refugee status procedures to include also the determination of issues relevant to the Convention against Torture.  The advantage of a face to face interview for determining the difficult credibility issues which lie at the heart of such cases cannot be over emphasized.  The task also calls for an experienced tribunal skilled in making the inevitably difficult assessment of the human rights situation in the country of origin.


[71] After a possibly promising start, refugee law in New Zealand is bound to grow.  The challenge to all decision-makers is to develop refugee law in a progressive and dynamic manner, while remaining true to the language, object and purpose of the Refugee Convention.

1. New Zealand acceded to the Convention on 30 June 1960 and it entered into force for New Zealand on 28 September 1960.  See further Ministry of Foreign Affairs and Trade, New Zealand Consolidated Treaty List as at 31 December 1996 Part I (Multilateral Treaties) (May 1997) p 183.  New Zealand acceded to the protocol on 6 August 1973 and it entered into force for New Zealand on the same day.  See further Ministry of Foreign Affairs and Trade, New Zealand Consolidated Treaty List as at 31 December 1996 Part I (Multilateral Treaties) (May 1997) p 244.

2. Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, A Nos.  878/83, 993/83 & 1016/83, 29 November 1985, Chilwell J) pp 46 to 55 (appeal by the Crown dismissed on other grounds in Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222 (CA)).

3. Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, A Nos.  878/83, 993/83 & 1016/83, 29 November 1985, Chilwell J) (appeal by the Crown dismissed in Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222 (CA)).

4. Rt. Hon. David Lange, “Refugee Policy”, Press Statement, March 1986.

5. Singh v Refugee Status Appeals Authority [1994] NZAR 193, 198-200 (Smellie J).

6. See Terms of Reference (March 1991); Terms of Reference (1 April 1992); Terms of Reference (in force on 30 August 1993) and the Rules Governing Refugee Status Determination Procedures in New Zealand (in force from 30 April 1998).

7. Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, A Nos.  878/83, 993/83 & 1016/83, 29 November 1985, Chilwell J) pp 264-273 (appeal by the Crown dismissed on other grounds in Minister of Foreign Affairs v Benipal [1988] 2 NZLR 222 (CA)); Singh v Refugee Status Appeals Authority [1994] NZAR 193, 209-212 (Smellie J); Khalon v Attorney-General [1996] 1 NZLR 458, 461 (Fisher J); B v Refugee Status Appeals Authority (High Court Auckland, M 1600/96, 23 July 1997, Giles J) pp 3-4.

8. Butler v Attorney-General [1999] NZAR 205, 218-220 (Richardson P, Henry, Keith, Tipping & Williams JJ); S v Refugee Status Appeals Authority [1998] 2 NZLR 291, 294 (Henry, Keith & Blanchard JJ).

9. Immigration Amendment Act 1999, s 40.

10. The new Part VIA came into force on 1 October 1999: Immigration Amendment Act 1999, s 1(3).  These provisions are to be read with the Immigration (Refugee Processing) Regulations 1999 (SR 1999/285).

11. Immigration Act 1987, ss 129E to 129M.

12. Immigration Act 1987, s 129N(1) and Schedule 3C para 7.

13. Immigration Act 1987, s 129Q(5).

14. Immigration Act 1987, s 146A(1).  Compare the narrow scope of review prescribed by the Migration Act 1958 (Cth), ss 475 and 476.  While the constitutional validity of these restrictions was upheld in Abebe v Commonwealth of Australia (1999) 162 ALR 1 (Gleeson CJ, McHugh, Kirby and Callinan JJ; Gaudron Gummow and Hayne JJ dissenting) the consequential resort to the High Court of Australia for prerogative relief has had a serious effect on the business of that Court (102 applications for prerogative relief pending as at January 2000, 66 of them arising under the Migration Act): Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 409 (McHugh J) (HCA).

15. Immigration Act 1987, s 129D(2).

16. The “scheduling” of international treaties and instruments in this manner is discussed by K J Keith in “New Zealand Treaty Practice: The Executive and the Legislature” (1964) 1 NZULR 272, 297-299 and by J F Burrows in Statute Law in New Zealand (2nd ed, Butterworths 1999) 258 (whether setting out a treaty in a schedule to an Act gives the treaty statutory force, and thus part of the law of New Zealand, presumably depends on whether it was set out with the intention of enacting it, or for the purpose of giving information only).  See generally Law Commission, A New Zealand Guide to International Law and its Sources (1996) 14-26.  Compare Collins v State of South Australia (1999) 74 SASR 200, 209-210 (Millhouse J) (Sct.SA).

17. For reported examples see Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J) and Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J).

18. Statistics provided to the author by the Registrar of the RSAA on 1 March 2000.  If the “settled” and “quashed” figures are taken together, the success rate of judicial review proceedings in refugee cases is approximately 37% of the total number of proceedings issued.

19. (1998) 575 NZPD 12789-12790 (29 September 1998).

20. Zhan v Refugee Status Appeals Authority (High Court Auckland, M 47/95, 8 March 1996, Morris J) p 8; K v Refugee Status Appeals Authority (High Court Auckland, M 1586-SW99, 22 February 2000, Anderson J) para 4.

21. Garate v Refugee Status Appeals Authority [1998] NZAR 241 (Williams J); S v Refugee Status Appeals Authority [1998] 2 NZLR 301 (Smellie J) (appeal dismissed in S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA)).

22. Butler v Attorney-General [1999] NZAR 205 (Richardson P, Henry, Keith, Tipping & Williams JJ); S v Refugee Status Appeals Authority [1998] 2 NZLR 291, Henry, Keith & Blanchard JJ) and Malkit Singh v Attorney-General (CA 252/99, 16 November 1999) (Richardson P, Gault & Tipping JJ).

23. Butler v Attorney-General [1999] NZAR 205 (CA) (Judgment given on 13 October 1997).

24. S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA).

25. As at 1 March 2000 there were 18 members of the RSAA representing 10.9 full-time equivalent decision-makers.

26. For a recent affirmation of the importance of consistent treatment in the immigration context, see Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102, 111 per Baragwanath J citing John Finnis, Natural Law and Natural Rights (Clarendon Press, 1980) at pp 270-271.

27. Canada (Attorney General) v Ward [1993] 2 SCR 688 (SC:Can).

28. Krista Daley & Ninette Kelley, “Particular Social Group: A Human Rights Based Approach” (unpublished, February 2000).  This paper has been circulated to members of the IARLJ working party on Membership of a Particular Social Group in anticipation of a final draft being presented at the IARLJ conference to be held at Berne in October 2000.

29. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA).

30. Migration Act 1958 (Cth), ss 475 & 476 and see footnote 14.

31. The degree to which domestic politics can play a part in domestic legislation is illustrated by the amendment introduced by § 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which added a sentence to the definition of refugee in the Immigration and Nationality Act 1952, § 101(a)(42) to the effect that forced abortion or involuntary sterilization is deemed to be persecution on account of political opinion, provided that no more than 1,000 refugees per year are granted refugee status under the amendment.

32. Haines, “Interim Report on Membership of a Particular Social Group” (IARLJ Ottawa Conference, October 1998) Appendix I - French Jurisprudence.

33. For the text on the Joint Position see Richard Plender, Basic Documents on International Law (2nd rev ed, Martinius Nijhoff, Dordrecht 1997) 519.

34. R v Secretary of State for the Home Department, Ex parte Adan [1999] 3 WLR 1274; [1999] 4 All ER 774 (CA).

35. Adan v Secretary of State for the Home Department [1999] 1 AC 193 (HL) and R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 (HL).

36. Adan v Secretary of State for the Home Department [1999] 1 AC 293, 307B.

37. Atle Grahl-Madsen, The Status of Refugees in International Law Vol 1 (1966) and Vol 2 (1972).

38. Professor James C Hathaway, The Law of Refugee Status (1991).

39. Professor Guy S Goodwin-Gill, The Refugee and International Law 2nd ed (1996).

40. Adan v Secretary of State for the Home Department [1999] 1 AC 293, 307B.

41. Immigration Act 1987, s 129E(2) and (3).

42. Immigration Act 1987, s 129N(1) and Schedule 3C.

43. Louisa Cleave, “Man who hurt wife is to stay”, NZ Herald, Wednesday, May 19, 1999, p A3; Louisa Cleave, “Tribunal strikes back at Delamere”, NZ Herald, Tuesday, June 15, 1999, p A4; Editorial, “Injudicious treatment”, NZ Herald, Wednesday, June 16, 1999, p A14.  The Minister was criticized by the Attorney-General but not dismissed until a few days before the November 1999 general election when it was found that he had given special treatment to Chinese investors prepared to put money into Maori projects: Audrey Young, “Shipley wields the axe”, NZ Herald, Thursday, November 25, 1999, front page; Tony Wall, “Minister’s wade head over heels into strife”, NZ Herald, Thursday, November 25, 1999, p A7; Naomi Larkin, “‘Pleased and proud’ to offer residency deals”, NZ Herald, Thursday, November 25, 1999, p A7.

44. Louisa Cleave & John Roughan, “Trio on way out as axe hits deportation body”, NZ Herald, Wednesday, June 16, 1999, p A3.

45. Hon Tony Ryall, Minister of Justice, “Procedure for Deportation Tribunal Appointments”, Northern Law News, July 23, 1999.

46. D v Minister of Immigration [1991] 2 NZLR 673, 676 (Cooke P, Hardie Boys and Bisson JJ).

47. Ibid, s 128(13B) as amended by the Immigration Amendment Act 1999, s 37(2).

48. Hon Tuariki John Delamere, Minister of Immigration, “Boatpeople Bill to be introduced to Parliament tonight”, New Zealand Executive Government News Release Archive (15 June 1999).  Staff reporter, “Bill targets Chinese boatpeople”, NZ Herald, June 16, 1999, front page; John Armstrong, “Orion to scan seas for boatpeople”, NZ Herald, June 17, 1999, p A3; Manying Ip, “Economic migrants are not refugees”, NZ Herald, June 22, 1999, p A13; Matt Robson, “Imbalance in handling immigrants”, NZ Herald, June 25, 1999, p A11.

49. Immigration Amendment Act (No.  2) 1999, s 2.

50. “Chinese boatpeople dumped in PNG”, NZ Herald, July 14, 1999, p A6; see also Colin James, “Migrant repellent”, Far Eastern Economic Review (July 8, 1999) p 22.

51. F v Superintendent of Mt Eden Prison [1999] NZAR 420 (Anderson J).

52. The decision of Fisher J at first instance is E v Attorney General (High Court Auckland, M 1884-SW/99, 29 November 1999).  The Immigration Service was ordered to reconsider the decision not to grant temporary permits.  The appeal by the Crown has been heard by the Court of Appeal but as at the date this paper was drafted, no decision had been published.

53. Refugee Appeal No. 71735/99 - Minute (25 January 2000).

54. Immigration Act 1987, s 129H(1)(f).

55. Immigration Act 1987, s 129P(5)(a).  The results is that a refugee status officer can deal with a manifestly unfounded claim on the papers, but not the RSAA.  This is unsatisfactory not only in terms of resource allocation (it is less expensive to interview at first instance), it also detracts from the RSAA’s appellate function by rendering it, in effect, a first instance decision-maker.

56. Adan v Secretary of State for the Home Department [1999] 1 AC 293, 311A

57. Refugee Appeal No.  11/91 Re S (5 September 1991) p 16; Refugee Appeal No.  71462/99 (27 September 1999) para 46.

58. Minister for Immigration and Multicultural Affairs v Abdi (1999) 162 ALR 105 (FC:FC) (O’Connor, Tamberlin & Mansfield JJ).

59. Hon Max Bradford, Minister of Immigration, “New Transit Visa Arrangements”, New Zealand Government Executive News Release Archive (30 June 1998); Hon Max Bradford, Minister of Immigration, “Transit Visas to Prevent Abuse”, New Zealand Government Executive News Release Archive (7 August 1998).

60. Immigration (Transit Visas) Regulations 1998 (SR 1998/164).  These Regulations added citizens of Colombia, Ecuador, countries that were part of the former Soviet Union, and the majority of countries in the African continent to the list of persons who require transit visas.  They also added Niue, Tokelau and the Marshall Islands to the list of routes for which transit visas are required.

61. Immigration Amendment Regulations (No.  4) 1998 (SR 1998/320) Reg 2(b); Immigration (Transit Visas) Amendment Regulations (No.  2) 1998 (SR 1998/321), Reg 2.

62. For an account of the violence see Human Rights Watch, Indonesia: The Damaging Debate on Rapes of Ethnic Chinese Women (September 1998) and Susan Berfield & Dewi Loveard, “Ten Days that Shook Indonesia”, Asia Week (July 24, 1998) 30-41.

63. Hon Tuariki John Delamere, Minister of Immigration, “Indonesian Nationals Require Visas to Enter New Zealand”, New Zealand Government Executive News Release Archive (21 October 1998).  Between 1991 and September 1997, there were 22 refugee status claims by people of Indonesian nationality, while 625 claims were made between October 1997 and June 1999: Department of Labour, 1999 Briefing to Ministers, p 92.

64. Immigration (Transit Visas) Regulations 1999 (SR 1999/172).

65. Hon Tuariki John Delamere, Minister of Immigration, “NZIS moves swiftly on Kosovo refugee aid”, New Zealand Government Executive News Release Archive (13 April 1999).  As at 10 July 1999, only some 160 of the anticipated 600 individuals had arrived in New Zealand.  See Warren Gamble, “Some Kosovo refugees quitting a second time”, Weekend Herald, July 10-11, 1999, p A13; Warren Gamble & Catherine Masters, “NZ refuge better option than stripped home”, NZ Herald, July 12, 1999, p A3.

66. See 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.

67. Damouni v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 97, 101 (French J) adopted and applied in Refugee Appeal No. 2039/93 Re MN  (12 February 1996) at 15.

68Butler v Attorney-General [1999] NZAR 205 (CA) (Judgment given on 13 October 1997)

69. Ibid 218.

70. Ibid 218.

71. Immigration Act 1987, ss 72-90; 114A-114R.

72. Immigration Act 1987, s 114C(5)(a) and (b).

73. S v Refugee Status Appeals Authority [1998] 2 NZLR 291, 300 (CA).

74. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, art 22.  See further Ministry of Foreign Affairs and Trade, New Zealand Consolidated Treaty List as at 31 December 1996 Part 1 (Multilateral Treaties) (May 1997) p 234.