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2007

Index

17 December 2007  High Court at Auckland delivers judgment addressing exclusion issues under Article 1F(a) of the Refugee Convention

16 November 2007  Employment support for refugees

9 November 2007  Refugee resettlement policy questioned

9 November 2007  Refugees As Survivors expanding services

9 November 2007  UNHCR criticises classified information provisions of Immigration Bill
31 October 2007  New Minister of Immigration appointed in Cabinet re-shuffle

9 October 2007  New Zealand makes NZ$1 million contribution to UNRWA

18 September 2007  Aviation security legislation passed

28 August 2007  Professor James Hathaway appointed Dean of the Melbourne Law School

21 August 2007  New Zealand asked to take Guantanamo detainees

20 August 2007  Bali Process workshop held in Wellington

16 August 2007  Immigration Bill passes first reading and is referred to Select Committee

8 August 2007  Immigration Bill tabled in Parliament

1 August 2007  Refugee Lifeline to open on 13 August 2007

17 July 2007  Unsuccessful refugee claimant jailed for passport and related offences

27 June 2007  Immigration consultant jailed for refugee fraud

14 June 2007  UNHCR relaunches RefWorld online

12 June 2007  67 Zimbabweans fail to submit applications under special policy

1 June 2007  Three recent Court decisions added to Case Search page of this website

21 May 2007  Refugee Status Appeals Authority affirms refugee claimants not required to establish so-called "subjective" fear

8 May 2007  Court of Appeal dismisses appeal by Iraqi Chaldean Christian

1 May 2007  Immigration Advisers Licencing Act 2007 passed

20 April 2007  Australia-USA refugee swap scheme - now described as a non-binding informal arrangement for mutual assistance

19 April 2007  Australia - USA refugee swap scheme

12 March 2007  Public lecture on The UN Convention on the Rights of Persons with Disabilities

1 March 2007  Some ninety percent of eligible Zimbabweans apply by special policy deadline

28 February 2007  200 Afghan refugees accepted for resettlement in New Zealand

26 February 2007  Michigan Guidelines on Protection Elsewhere now available on this website

22 February 2007  Professor James Hathaway to give public address at Melbourne Law School

15 February 2007  Zimbabwe residence policy expires on 28 February 2007

1 February 2007  Young refugees targeted by settlement strategy

31 January 2007  Auckland Regional Migrant Services looking for mentors to participate in employment support programme

31 January 2007  Auckland migrant settlement strategy launched

31 January 2007  New Zealand signs Protocols on maritime terrorism

1 January 2007  Government legislative programme for immigration and refugee issues

17 December 2007 In X and Y v Refugee Status Appeals Authority (High Court Auckland, CIV-2006-404-4213, 17 December 2007) Courtney J has addressed a number of substantive issues relating to the application of Article 1F(a) of the Refugee Convention. X and his wife Y sought refugee status in New Zealand. In relation to X the Refugee Status Appeals Authority determined that there were serious reasons for considering that he had committed both crimes against humanity and serious non-political crimes with the result that he was excluded from the provisions of the Refugee Convention by reason of the application of Article 1F(a) and Article 1F(b) of the Refugee Convention. In relation to the wife, while not herself excluded from the Refugee Convention, the Authority determined that she had failed to establish the "well-founded" element of the refugee definition. Held:

1    On an application for judicial review the Court would only intervene if the decision or the decision-making process exceeded the power of the Refugee Status Appeals Authority, was procedurally unfair, was based on a misunderstanding of the facts or disclosed an error or law, if the Authority had taken irrelevant matters into account or was so unreasonable that no rational Authority could have made that decision. Judicial review was concerned not with the decision, but with the decision-making process (see para [6]).

Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (PC) and Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) applied.

2   The Authority had jurisdiction to determine the plausibility of testimony and to make findings on the basis of implausibility. Such findings, however, may well be marginally easier to challenge on judicial review but to succeed, the plaintiffs had to show that the Authority's decisions, including its determination in relation to X's credibility, were so unreasonable that no Authority, properly directing itself could have made them (see paras [7], [8] & [9]).

B v Refugee Status Appeals Authority (High Court Auckland, M1600/96, 23 July 1997, Giles J) and Cen v Canada (Minister of Citizenship and Immigration) [1996] 1 CS 310 (FC:TD) applied.

3   The Authority could not be diverted from the proper interpretation of Article 1F by non-binding guidelines (such as the UNHCR guidelines on the application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees), which do not accord with either the purpose of the Article and are contrary to persuasive authority as to the proper construction of that Article (see para [16]).

KK v Secretary of State for the Home Department [2005] INLR 124 (UKIAT) followed.

4   There was no burden on an asylum-seeker to prove that Article 1F does not apply but that there must be some evidence on which a determination is made and it was for the Executive to point to such evidence. In the absence of such evidence there will not be "serious reasons for considering" that the refugee claimant has committed one of the specified acts but this does not equate to imposing a legal burden of proof on the Executive (see para [21]).

Gurung v Secretary of State for the Home Department [2003] Imm AR 115; [2003] INLR 133 (UKIAT) followed.

5   One could expect the application of Article 1F to be determined in part on the evidence adduced by the claimant in support of his or her refugee claim. However, the Authority is entitled to obtain and rely on its own country information as well. Where there is evidence, the issue in a judicial review application can only be whether an Authority conducting itself properly could reasonably have reached the conclusions it did on the evidence before it. It would, however, be wrong to view this as being determined by reference to a burden of proof (see para [22]).

6   There was no basis to justify and no authority to support the submission that the benefit of the doubt should be exercised in favour of the refugee claimant in the application of Article 1F of the Refugee Convention. Procedural fairness does not equate to allowing the benefit of the doubt (see paras [28] & [29]).

7   The Authority was not bound to give the husband the benefit of the doubt. Provided there was evidence to support the inferences that the Authority drew the High Court would not interfere. The fact that another tribunal or even the High Court might have drawn different inferences from the same evidence was not relevant. The High Court would only interfere if the refugee claimant could show that the inferences drawn were so unreasonable that no Authority conducting itself properly could have reached them (see paras [41] & [54]).

8   In considering the application of Article 1F(a) in the context of alleged crimes against humanity, the Authority is required only to specify a particular proscribed act and is not required to identify a specific instance of a proscribed act (see paras [59] & [69]).

9   The Authority was correct to proceed on the basis that the phrase "serious reasons for considering" in Article 1F establishes a lower standard of proof than the balance of probabilities (see paras [73] & [99]).

10   A person will be complicit in a crime against humanity if he or she participates, assists or contributes to the furtherance of a systematic and widespread attack against civilians knowing that his or her acts will comprise part of it or takes the risk that it will do so. There need not be a specific event identified that is linked to the accomplice's own acts (see para [81]).

Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 FC 306 (FC:CA); Sivakumar v Canada (Minister of Employment and Immigration) [1994] 1 FC 433 (FC:CA); Bazagan v Canada (Minister of Citizenship and Immigration) (1996) 205 NR 282 (FC:CA); Mugesera v Canada (Minister of Citizenship and Immigration) [2005] SCC 40; (2005) 254 DLR (4th) 200 (SC:Can) and Prosecutor v Blaskic (Appeals Chamber, Case No. IT-95-14-A (29 July 2004)) (ICTY) applied.

11   The assessment of conduct as a serious non-political crime is to be undertaken by reference to the offending itself and probable penal consequences. It is not be assessed on a comparative basis against the seriousness of the possible persecution (see para [89]).

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

16 November 2007 The Auckland Regional Migrant Service has secured funding which will allow its ReactNow programme to continue. This service helps refugees find work by providing individual support for refugee job seekers, including mentoring from local business people. Participants receive training in aspects such as CV writing, interview skills, Kiwi workplace culture, communication skills and an understanding of New Zealand's job market. The additional funding has been provided by the ASB Community Trust as well as the Lottery. The next sessions will run at the Migrant Services' resource centre in the Three Kings Plaza on December 5, 7, 12 and 14. To register phone: 625-2440, extension ext 7521.

["Refugees get a hand job hunting", Central Leader, Friday, November 16, 2007]

9 November 2007 The UNHCR Representative in the South Pacific, Rick Towle, is reported as expressing concern at an apparent shift towards taking more resettlement refugees from Asian countries, who are seen by some as integrating into New Zealand society more easily than Africans. The intake from sub-Saharan and East Africa, which made up just over half of the total resettlement refugees accepted under the UNHCR quota between 1998 and 2002, has been cut to just over a quarter in the past five years and a sixth in the year to June 2008. In the same period, the intake from East and South Asia (mainly Burma) has increased from a tenth to a third. The Middle East (mainly Afghanistan and Iraq) accounts for most of the rest, rising from 35% in the first half of the past decade to 55% in the second half. But the Director of the Refugee Division of the Department of Labour, Kevin Third, is reported as saying that its policy remains open to accepting refugees from a range of areas prioritised by the UNHCR. The quota to next June includes three new groups which are UNHCR priorities but have no existing communities in New Zealand - Rohingya Muslims from western Burma who have fled to Bangladesh; Bhutanese who have fled to Nepal and Colombians who have fled to Ecuador.
 
[Simon Collins, "African exiles giving way to Asians", NZ Herald, Friday November 9, 2007, p A11]

9 November 2007 Refugees As Survivors, a charitable trust which runs a mental health clinic at the Mangere refugee centre, has bought four hybrid petrol/electric cars to take its services in rotation to clinics at Mt Roskill, Glen Innes, Beach Haven, Manukau and Waitakere. The new service will expand the trust's staff from fifteen to twenty-five full time equivalents. The team includes psychologists, doctors, nurses, social workers and community workers from the Afghan, Burmese, Iraqi, Kurdish, Somali and Sudanese communities. The new mobile service, funded by the government and the ASB Community Trust, will keep working with refugees after they leave their Mangere Centre for as long as they need help.

[Simon Collins, "Refugee health service goes clean, green", NZ Herald, Friday, November 9, 2007, p A8]

9 November 2007 The UNHCR Regional Representative in Canberra has criticised the provisions in the Immigration Bill which will allow for the use of classified information in immigration cases, saying that the provisions would be "harder and more vague" than similar laws in Britain and other European countries. The provisions were "too wide and too vague". The position of the UNHCR was that someone trying to make a refugee claim should be entitled to know what there is against them because the consequence of getting it wrong could be a matter of life and death. The UNHCR has also criticised another clause in the Bill that would reject a refugee claim if the claimant may have lodged or had the opportunity to lodge a claim for recognition as a refugee or for protection in another country.

[Simon Collins, "Refugee security clause 'too wide and too vague'", NZ Herald, Friday, November 9, 2007, p A11]

31 October 2007 Hon Clayton Cosgrove has been appointed Minister of Immigration in the Cabinet re-shuffle announced today. The previous Minister of Immigration, Hon David Cunliffe, is now Minister of Health. Hon Shane Jones is the Associate Minister of Immigration.

[Rt Hon Helen Clark, "Renewed Cabinet line-up", Media Statement, 31 October 2007]

9 October 2007 New Zealand is to make a NZ$1 million contribution towards an international emergency appeal by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The contribution will come from the government's aid and development agency, NZAID which will also contribute NZ$500,000 to UNICEF's programme in the occupied Palestinian Territories.

[Rt Hon Helen Clark, "NZ Aid to help Palestinian refugees", Media Statement, 9 October 2007]

18 September 2007 Parliament has enacted legislation to strengthen New Zealand's aviation security. Under the new legislation aviation security officers will have wider powers to search passengers and power to require that airlines deny carriage to passengers who refuse to be searched. The legislation also enables foreign in-flight security officers to enter and depart New Zealand and allows New Zealand to deploy in-flight security officers, should the Government decide take this step in the future.

[Hon Harry Duynhoven, "Aviation security legislation passed", Media Statement, 18 September 2007]

28 August 2007 Professor James Hathaway, presently the James E and Sarah A Degan Professor at the University of Michigan Law School, has been named as the new Dean of the Melbourne Law School, University of Melbourne. He will take up the appointment at Melbourne in January 2008 and will also be appointed to the Hearn Chair in Law. Professor Hathaway succeeds Professor Michael Cronnelin, who is stepping down at the end of 2007 after serving nearly two decades as Dean. James Hathaway is best known for his work on international refugee law, which has been regularly cited by leading courts in Australia and throughout the common law world.  Widely-published in leading law journals, his publications include a seminal treatise on the refugee definition, The Law of Refugee Status (1991), an interdisciplinary study on refugee law reform, Reconceiving International Refugee Law (1997), and in 2005, The Rights of Refugees under International Law  – the first comprehensive analysis of the human rights of refugees set by the UN Refugee Convention.

["Melbourne Law names internationalist Dean" <http://www.law.unimelb.edu.au/index.cfm?objectid=4B1D1CB1-B0D0-AB80-E28E8C05438EC230&DiaryID=3362>]

21 August 2007 The Director of the Refugee Division of Immigration New Zealand (Mr Kevin Third) is reported as saying that in 2005 and early 2006, New Zealand declined several requests from the United States to resettle Guantanamo Bay detainees as refugees in New Zealand. Mr Third explained that the New Zealand Government accepted a quota of 750 quota refugees each year who had been "prioritised" by the UNHCR. The UNHCR had not prioritised Guantanamo Bay detainees as a group for resettlement in New Zealand under this programme. Prior to accepting any quota refugees, the Department of Labour considers New Zealand's capability to resettle particular groups and any support mechanisms available to assist this process. He was reportedly responding to questions after revelations that the US Government had asked Canada to accept detainees of Uighur descent who claimed to be at risk if sent back to the People's Republic of China which takes a hard line on Uighur dissidents from the Xianjiang Uighur Autonomous Region (also known as East Turkestan). Reports say that the twenty-two men concerned were sold to the US by Pakistani bounty hunters after the September 11, 2001 attacks, but several of the Muslim men said they were fleeing Chinese persecution and had been en route to Iran and Turkey to seek refugee status. Five of the men have been settled by the US in Albania. The remaining seventeen are still being held at Guantanamo Bay and live in isolation for twenty-two hours a day.

[NZPA, "NZ resisted US requests to take Guantanamo refugees", NZ Herald, Tuesday, August 21, 2007, p A4]

20 August 2007 The 2007 Bali Process Workshop: Enabling Electronic Authentication of Travel Document Information will be held in Wellington on 20 to 22 August. It will focus on strengthening cooperation against people-smuggling and related trans-national crime in the Asia/Pacific region through information-sharing on lost and stolen travel documents. The Bali Process was initiated in 2002. There are currently forty-three member countries from the Asia/Pacific region, and two Special Administrative Regions of China (Hong Kong and Macau). One of the initiatives to be discussed at the workshop will be the Regional Movement Alert System which has already detected over seven hundred lost or stolen passports held by people attempting to enter New Zealand.

[Hon David Cunliffe, "International meeting strengthens border security", Media Statement, 20 August 2007]

16 August 2007 The Immigration Bill has passed its first reading and has been referred to the Transport and Industrial Relations Select Committee. The closing date for submissions is 12 October 2007. The Committee is to report by 15 February 2008.

[NZPA, "Revamp of immigration laws passes first reading", NZ Herald, Friday, August 17, 2007, p A6]

8 August 2007 The Government has tabled in Parliament an Immigration Bill. Possibly the most significant aspect of the new legislation is that protection claims under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 and under Article 6 and 7 of the International Covenant in Civil and Political Rights, 1966 will now be determined within a formal statutory framework. The Refugee Status Appeals Authority will be dis-established and replaced by an Immigration and Protection Tribunal which will have jurisdiction over refugee and protection appeals. The Tribunal will also hear residence, deportation and humanitarian appeals. The Bill will also allow classified information to be used in immigration, refugee and protection decisions.

[Hon David Cunliffe, "Immigration law change takes New Zealand forward", Media Statement, 8 August 2007]

1 August 2007 Refugee Lifeline will start on 13 August 2007. The new service aims to help new refugee settlers deal with loneliness, stress and the trauma of their past experiences. It is a partnership between the mental health agency Refugees as Survivors and telephone counselling service Lifeline. Thirteen people have been trained and will provide counselling in Arabic, Farsi, Dari and Burmese. The telephone lines will be open from Monday to Saturday. For help in Arabic, phone: 0800-886645, Burmese: 0800-886646, and Farsi or Dari: 0800-886647.

[Heather McCracken, "Help at hand for refugees", Central Leader, Wednesday, August 1, 2007]

17 July 2007 In the Blenheim District Court a Thai national has been jailed for sixteen months on two charges of fraudulently providing a passport and four charges of providing false information to immigration officers. The man visited New Zealand in March 2002 as a tourist but was later granted a work permit. Thereafter he tried to claim refugee status but was returned to Thailand in November 2004. In October 2005 he returned to New Zealand on a false Thai passport. After returning to Thailand he used the false passport to return to New Zealand in January 2006. On four occasions when applying for work permits he supplied immigration staff with false information about the identity he had assumed under the false passport.

[NZPA, "Thai man jailed after twice using false passport to enter NZ", NZ Herald, Tuesday, July 17, 2007]

27 June 2007 John Hikuwai has been sentenced to twenty-one months' jail after being found guilty of three breaches of the immigration legislation. It had been alleged that he falsely declared that applicants represented by him understood the contents of their claims for refugee status before signing the documents. Department of Labour spokeswoman, Mary Anne Thompson, is reported as saying that Mr Hikuwai attempted to scam several hundred Thai nationals through unsuccessful refugee status appeals.

[NZPA, "Conman jailed for work permits scam", NZ Herald, Thursday, June 28, 2007, p A9]

14 June 2007 Previously only available in CD-Rom and DVD formats, RefWorld has been relaunched as a website (www.refworld.org). This free service contains a vast collection of reports relating to situations in countries of origin, policy documents and positions, and documents relating to international and national legal frameworks.  It includes multiple and advanced possibilities for browsing the collection of more than 76,000 documents by region and/or country, by publisher, by topic or key word and by document type. It also has a powerful full-text search engine and advanced searching facilities. RefWorld will be updated daily and includes special features on topics such as refugee status determination, statelessness, migration and related issues, gender equality and women, internally displaced persons, resettlement, voluntary repatriation and children.

[UNHCR, "UNHCR relaunches RefWorld as state-of-art online protection tool" (14 June 2007) <http://www.unhcr.org/news/NEWS/4671697f4.html>]


12 June 2007 67 Zimbabweans entitled to apply for residence in New Zealand under a special policy have failed to submit applications notwithstanding a special HIV/AIDS amnesty. Of this number, 40 do not have valid permits allowing them to be in New Zealand. Immigration authorities are warning those who did not register that they may not get residence permits, although it seems unlikely they will be sent home while Zimbabwe remains unstable.

[NZPA, "67 Zimbabweans snub AIDS amnesty", NZ Herald, Tuesday, June 12, 2007, p A3]

1 June 2007 Three recent court decisions are now available on the Case Search page of this website. First, the decision in S v Chief Executive of the Department of Labour [2007] NZCA 182 discusses whether it is an error of law for the Refugee Status Appeals Authority to fail to rule on some particular aspect of an appeal if that aspect is not raised by the appellant. The Court has reaffirmed its longstanding jurisprudence that the answer to this question is "No", provided the matter does not "stand out as requiring decision". In the High Court an interim order has been made preventing a refugee status officer from hearing cancellation proceedings brought against a citizen of Rwanda who was a quota refugee accepted for resettlement in New Zealand and against whom charges have been made of genocide and crimes against humanity. The High Court held that until a definitive ruling on the meaning of s 129T of the Immigration Act 1987 has been given either in the Court of Appeal or by the Supreme Court the individual should not be called upon to respond to the allegations made in the cancellation proceedings. See Z v Attorney-General (High Court Auckland, CIV2007-404-330, 30 March 2007, Andrews J). Finally, in Yadegary v Manager, Custodial Services, Auckland Central Remand Prison (High Court Auckland, CIV2006-404-7620, 4 April 2007, Courtney J) the High Court has considered the question whether detention in custody pending removal from New Zealand may become illegal if such detention continues for an unreasonable period. The High Court has determined that the principles enunciated in R v Governor of Durham Prison; Ex part Hardial Singh [1984] 1 WLR 704 (QBD) require that an affirmative answer be given to this question. The decision has as its focus the meaning and application of s 60 of the Immigration Act 1987.

21 May 2007 The Refugee Status Appeals Authority has released for publication a decision given on 3 March 2006 in which it affirms its longstanding jurisprudence that a refugee claimant is not required to establish a so-called "subjective" fear and that the "well-founded fear" element of the inclusion clause has as its reference not the facts subjectively perceived by the claimant, but the objective facts as found by the decision-maker. The trepidation of the individual, no matter how genuine or intense, does not alter or affect the legal standard and is irrelevant to the well-foundedness issue. The state of mind of the refugee claimant is only relevant to the question whether he or she is unable or unwilling to return to the country of his or her nationality. The Authority has further held that the congruence of New Zealand refugee law on well-founded fear and the Michigan Guidelines on Well-Founded Fear means that those guidelines properly identify the principles to be applied in New Zealand when issues of well-foundedness are determined. In the same decision the Authority has rejected a challenge to its institutional independence but has accepted that institutional independence on its own is insufficient. A refugee decision-maker must also be impartial. The full text of the decision in Refugee Appeal No. 75692 (3 March 2006) is available on the Case Search page of this website and may be accessed by clicking on the Index of Leading Decisions of the RSAA.

[Refugee Appeal No. 75692 (3 March 2006)]

8 May 2007 An Iraqi national and a Chaldean Christian, unsuccessful in his refugee claim both at first instance and on appeal to the Refugee Status Appeals Authority (RSAA), had challenged the RSAA decision in the High Court. He was again unsuccessful, the decision of the High Court being reported as S v Chief Executive of the Department of Labour [2006] NZAR 234 (Keane J). In the Court of Appeal it was argued that the RSAA had erred in not considering (or not adequately considering) whether, although there was no risk to life or other violence, there was nonetheless a risk of serious harm arising from systemic violation of other basic human rights. The High Court had erred in similarly approaching the matter in terms of life and death and had not come to grips with the question whether the RSAA had dealt with persecution in its broader sense. Before the Court of Appeal it was accepted that it could not be an error of law for a tribunal to fail to rule on some particular aspect of the matter if that matter was not raised with it by the interested party and if it did not stand out as requiring decision (Butler v Attorney-General [1999] NZAR 205, 215 (CA) and Jiao v Refugee Status Appeals Authority [2003] NZAR 647 at [33] (CA)). The Court of Appeal found that the question of persecution in the broader sense was not one which stood out in the manner described in Butler as requiring decision. The point now advanced by the refugee claimant had not been emphasised before the RSAA nor indeed before the High Court. Rather the focus in the High Court to some extent had been on the application of the real chance test. The appeal could be dismissed on that basis. However, the Court of Appeal went on to consider what was available to the RSAA in relation to the claimant's broader claim. The Court referred to the meaning of "persecution" discussed by McHugh J in Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430 where he stated that to constitute "persecution", the harm threatened need not be that of loss of life or liberty; other forms of harm short of interference with life or liberty may be sufficient and measures in disregard of human dignity may in appropriate cases, constitute persecution. On the assumption that this approach was the correct one, the Court of Appeal examined the evidence available to the Authority and found that there was nothing in that evidence sufficient to meet the "stand out as requiring decision" test in Butler and Jiao. The Court accordingly concluded that neither the Authority nor the High Court had erred in their approach to the case and the appeal was dismissed. [Editor's Note: There in no mention in the judgment of the fact that the jurisprudence of the RSAA on the "being persecuted" element of the refugee definition has moved beyond the now dated decision in Chan. In Refugee Appeal No. 74665/03 [2005] NZAR 60; [2005] INLR 68 the RSAA adopted a human rights understanding of "being persecuted". That is, 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. In other words, core norms of international human rights law are relied on to define forms of serious harm within the scope of "being persecuted". Those core norms are to be found in the Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights, 1966, the Convention on the Elimination of All Forms of Racial Discrimination, 1966, the Convention on the Elimination of Discrimination Against Women, 1979 and the Convention on the Rights of the Child, 1989. The RSAA decision also emphasises that the Convention text uses "being persecuted", not "persecution". The difference is important. Among other things, the phrase "being persecuted" draws attention to the fact of exposure to harm rather than to the act of inflicting harm. This is a significant point, especially in the context of causation.]

[S v Chief Executive of the Department of Labour [2007] NZCA 182 (8 May 2007) (Hammond, Ellen France & Wilson JJ)]

1 May 2007 Parliament today passed the Immigration Advisers Licencing Act 2007 which requires the mandatory licencing of all immigration advisers and makes provision for fines of up to NZ$100,000 or seven years in jail for unlicenced agents. The law also includes offshore advisers who will be required to be licenced one year after their local counterparts. Three years from when the law receives the Royal Assent, all offshore immigration advisers must be licenced. The Act provides for the establishment of the Immigration Advisers Authority within the Department of Labour, headed by an independent registrar, and for the Immigration Advisers Complaints and Disciplinary Tribunal within the Ministry of Justice. To obtain and hold a licence, advisers must meet competency standards and be fit to practise. This includes consideration of any previous convictions.

[Hon David Cunliffe, "Shonky immigration agents on notice with new law", Media Statement, 1 May 2007]

20 April 2007 It is reported that a US State Department spokesperson has said that the Australia-USA scheme is a non-binding "informal arrangement for mutual assistance" and that "The arrangement does not create legal obligations". In addition the spokesperson reportedly said that the scheme did not require the direct exchange of a refugee processed in Australia for one processed in the USA and that no referrals had yet been made. No one referred for resettlement in Australia would be forced to accept resettlement. A spokeswoman for the US Embassy in Canberra is reported as saying that the USA had agreements with several countries for the resettlement of refugees and that the USA wished to deter dangerous and illegal migration and alien smuggling that put lives at risk, "which is why when the US interdicts migrants at sea we don't bring them to the US".

[Cath Hart, "Refugee swap not binding, says US", The Australian, Friday, April 20, 2007]

19 April 2007 Australia and the USA have reached an agreement under which asylum-seekers intercepted en route to Australia will be swapped with those detained while trying to enter the USA. The deal would mean Australia resettling Cuban and Haitian refugees held at Guantanamo Bay in return for the USA taking asylum-seekers on Nauru. It is reported that Australia is expected to begin the exchange by sending 82 Sri Lankans and 8 Burmese to the USA. Their departure from Nauru will circumvent difficulties created by the demand by Nauru that their asylum claims be settled within the next 6 to 12 months. It is said that the new agreement was negotiated last week and formalised at a meeting of immigration ministers from Australia, the US, Britain and Canada on 17 April 2007. It will be reviewed after two years. Up to 200 people a year could be exchanged under the deal. For a statement of the minimum international legal requirements for a valid protection elsewhere policy see The Michigan Guidelines on Protection Elsewhere (3 January 2007) which are to be found on the Michigan Guidelines page of this website.

[Greg Ansley, "US, Aussie refugee swap scheme on the high seas", NZ Herald, Thursday, April 19, 2007, pp B1 & B2]

12 March 2007 A public lecture on The UN Convention on the Rights of Persons with Disabilities will be given today by Professor Michael Stein and Mr Andrew Begg. Michael Stein is the Cabell Research Professor of Law at William & Mary Law School (USA) and has also taught at Harvard, New York University and Stanford law schools. An internationally recognised disability rights expert, Professor Stein has participated in the drafting of the United Nations Convention on the Rights of Persons with Disabilities and consults with international governments on their disability laws and policies. Andrew Begg is a Senior Legal Advisor to the Ministry of Foreign Affairs and Trade in Wellington. From 2002 until 2006 he was posted to the New Zealand Permanent Mission to the United Nations in New York and represented New Zealand on human rights negotiations in the General Assembly and the Commission on Human Rights. In this capacity he worked closely with Ambassador Don MacKay, the New Zealand Chair of the negotiations that developed and adopted the Convention on the Rights of Persons with Disabilities. The public lecture will commence at 7.15pm in the Stone Lecture Theatre, Faculty of Law, Auckland University. The venue is wheel-chair accessible.

1 March 2007 The Minister of Immigration, Hon David Cunliffe, says that over 90% of the Zimbabweans entitled to apply for residence in New Zealand under a special policy had submitted applications by the deadline of 28 February 2007. Since the Special Zimbabwean Residence Policy opened in July 2005, 930 Zimbabwe nationals living in New Zealand have applied. This number includes 126 who filed applications after the health waiver for Zimbabweans was announced in August 2006. Of this number there were 13 individuals with HIV-AIDS. The Minister says that some 90 eligible people have yet to come forward, though this is not a final figure. Officials are still processing last-minute applications and final numbers will be available when this work is finished.

[Hon David Cunliffe, "Most Zimbabweans apply by special policy deadline", Media Statement, 1 March 2007]

28 February 2007 Following a visit by New Zealand immigration officials to India from late September 2006 to early October 2006 some 200 Afghan refugees have been accepted for resettlement.  Some had been in India for more than twenty years consequent upon the Soviet occupation of Afghanistan in the 1980s. Others came during the 1990s during the civil war period followed by the harsh Islamic rule of the Taleban, who were ousted in late 2001. Many Afghan refugees cannot repatriate because clan and ethnic affiliations still make it insecure to go home, while others no longer have any family ties in the country and some are in mixed marriages. In addition the Taleban continue to fight Afghan government and foreign forces in the south and east. In India the refugees faced restrictions such as difficulty finding work, no prospect of getting citizenship and limited access to first-class education for their children. These were factors that made them candidates for resettlement. On 17 January 2007 a first group of 47 Afghans arrived in New Zealand and are presently taking part in a six-week orientation course in Mangere. A second departure of around 100 people will take place in March 2007.

UNHCR, "Afghans optimistic about a bright new life in Land of the Long White Cloud" (28 February 2007) <http://www.unhcr.org/news/NEWS/45e57e3f4.html>

26 February 2007 Refugees increasingly encounter laws and policies which provide that their protection needs will be considered addressed somewhere other than in the territory of the state where they have sought, or intend to seek, protection. Such policies - including "country of first arrival", "safe third country",  and extraterritorial processing rules and practices - raise both opportunities and challenges for international refugee law. They have the potential to respond to the Refugee Convention's concern "that the grant of asylum may place unduly heavy burdens on certain countries" by more fairly allocating protection responsibilities among states. But insistence that protection be provided elsewhere may also result in the denial to refugees of their rights under the Refugee Convention and international law more generally. The challenge is to identify the ways in which the protection regime may be made more flexible without compromising the entitlements of refugees. To this end the Fourth Colloquium on Challenges in International Refugee Law convened by the Programme in Refugee and Asylum Law, University of Michigan Law School, Ann Arbor, was convened on 10-12 November 2006. The Colloquium brought together ten invited refugee law experts to consider the question whether and when states may implement protection elsewhere policies. The Colloquium has now issued its conclusions in form of the Michigan Guidelines on Protection Elsewhere. These Guidelines emphasise that protection elsewhere policies are lawful only if the sending and receiving state respect all refugee rights contained in Articles 2-34 of the Refugee Convention and if appropriate safeguards (detailed in paras 12 to 16 of the Guidelines) are observed. The Guidelines (in English and French) are now available on the Reference page of this website.

22 February 2007 Professor James C Hathaway, Director, Programme in Refugee and Asylum Law, the University of Michigan Law School, is to give a free public lecture today at 6pm at the Melbourne Law School, 185 Pelham Street, Carlton. The title of his address is Why Refugee Law Still Matters. International refugee law has come under increasing attack in recent years. In particular, it has been suggested that international efforts are best addressed to meeting the needs of at-risk persons still inside their own country, and that whatever external protection is granted should be strictly temporary. Professor Hathaway will seek in this 25th Allen Hope Southey Memorial Lecture to open a debate on the wisdom of departure from traditional notions of asylum and to suggest constructive ways that the human rights of involuntary migrants can best be reconciled to the legitimate concerns of receiving states. Registrations by 13 February 2007. Email: law-rsvp@unimelb.edu.au ("Southey" in heading, please). Telephone: (03) 8344 1153. Website: www.law.unimelb.edu.au.

15 February 2007 Zimbabweans eligible for residence under a special policy are being encouraged to come forward and apply before time runs out on 28 February 2007. Almost 700 people who left Zimbabwe for their safety and who arrived in New Zealand have been made residents since the Government introduced a special policy for them in 2005. But an estimated 130 people are yet to apply and after 28 February 2007 they will no longer have the opportunity. An exception to policy also made by the government last year means Zimbabweans eligible under the policy do not have to meet normal health standards. This includes applicants with HIV/AIDS. All applications from HIV-positive Zimbabweans decided to date have resulted in residence being granted.

[Hon David Cunliffe, "Zimbabwe residence policy deadline nears", Media Statement, 15 February 2007]

1 February 2007 The Ministry of Social Development is to establish a new position for a youth worker to work with young refugees in Auckland's most multiculturally suburbs (Mt Roskill, Mt Albert and Avondale) as part of a regional settlement strategy launched last night. The new position, while Government funded, is likely to be contracted out to a community group. A spokesperson for the Ministry is reported as saying that the need for the job had been identified by a series of meetings with young refugees from Somalia, Ethiopia, Sudan and other countries and there were issues around health, career planning, employment, training, access to sport and recreation as well as legal matters. It is also reported that the Auckland Regional Migrant Services Trust already supports a mentoring scheme for engineers and is seeking mentors for refugee women. It has applied to the ASB Trust and another funder for a similar scheme for highly qualified refugees. For details of settlement programmes funded by Immigration New Zealand see <http://www.immigration.govt.nz/community/stream/support/fundedsettlementprogrammes/>.

[Simon Collins, "Action plan to settle migrants targets young refugees", NZ Herald, Thursday, February 1, 2007, p A3]

31 January 2007 Auckland Regional Migrant Services is looking for people to play a key mentoring role in a new employment support programme. The coordinator, Anna Fyfe-Rahal, is reported as saying that mentoring will form a vital part of ReactNow (Refugee Employment Action - New Opportunities for Work). She says that internationally, successful employment support programmes for refugee job-seekers have all used mentoring as a way to assist people into work. Volunteer mentors will be matched with refugees and will meet them on a regular basis to support their search for employment. They can help with CV writing, interview preparation and even attend interviews for support. Mentors will receive training and ongoing support. For more information, contact Ms Fyfe-Rahal at 625-2440, extension 751 or by email at annaf@arms-mre.org.nz.

["Mentors needed to help refugees", Central Leader, Wednesday, January 31, 2007, p 14]

31 January 2007 The Minister of Immigration has today launched the Auckland Regional Settlement Strategy and the Auckland Regional Settlement Action Plan the aim of which is to support new migrants and refugees to fully contribute and participate in the region. The Auckland strategy supports and advances the migrant work already under way nationally as part of the New Zealand settlement strategy and contains forty-eight initiatives, including developing a pre-employment programme for unemployed and unskilled refugees and developing an interpreter service model as a regional pilot. The strategy has been developed by talking to communities, migrants and refugees to ascertain their needs.

[Hon David Cunliffe, "Auckland migrant settlement strategy launched", Media Statement, 31 January 2007]

31 January 2007 New Zealand has signed two international protocols addressing the threat of maritime terrorism and the proliferation of weapons of mass destruction. They strengthen the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and create new offences relating to maritime terrorism and the trafficking of weapons of mass destruction. They also establish a regime allowing law enforcement and other officials to board vessels where they suspect an offence has been committed. The Minister of Foreign Affairs, Rt Hon Winston Peters says that legislation will have to be passed before New Zealand can ratify the protocols. Eleven other nations have so far signed the treaties, including Australia, France, the United Kingdom and the United States of America.

[Rt Hon Winston Peters, "NZ signs protocols fighting maritime terrorism", Media Statement, 31 January 2007]

1 January 2007 At the commencement of the New Year it might be helpful to bear in mind that in late November 2006 Cabinet signed off a set of proposals which will form the foundation for a new Immigration Bill to replace the existing Immigration Act 1987 in the first half of 2008. That Cabinet paper can be found at the following site: http://www.dol.govt.nz/actreview/. The broad timetable that will be followed to implement the proposals is as follows:


 

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