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2008

Index

16 December 2008  Immigration Bill reinstated

10 December 2008  60th anniversary of Universal Declaration of Human Rights

20 November 2008  Parliament to open on 8 December 2008

17 November 2008  Minister of Immigration appointed

8 November 2008  Election day

30 October 2008  Court of Appeal upholds two year sentence of imprisonment in case where false claim made for refugee status
1 October 2008  Court of Appeal reviews sentencing for immigration fraud and addresses sentencing factors

26 September 2008  48th Parliament ends and Immigration Bill lapses

12 September 2008  General election to be held on 8 November 2008

12 September 2008  Conference announcement: leading human rights scholars to critique New Zealand's new refugee and protection regime

 11 September 2008  Refugee Status Appeals Authority publishes updated Practice Note 1/08

11 September 2008  Refugee Status Appeals Authority publishes significant decision on the internal protection alternative and on gender and political opinion

7 August 2008  Annual report of Refugee Status Appeals Authority to 30 June 2008 now published

1 August 2008  Lawyers and Conveyancers Act 2006 comes into effect

30 July 2008  Australia reverses detention practices

23 July 2008   Five new court decisions added to Case Search page of this website

23 & 24 July 2008  Conference: Immigration Law 2008

22 July 2008  Immigration Bill 2007 reported back by Select Committee

22 July 2008  Identity fraud addressed by Births, Deaths, Marriages and Relationship Registration Amendment Act 2008 passed today

14 July 2008  Government releases preferred approach to tribunal reform - Immigration and Protection Tribunal affected

9 July 2008  Offer to provide computer training for families with school age children from refugee backgrounds

4 July 2008  Changes made to Refugee policy in the INZ Operational Manual
1 July 2008  Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill introduced to Parliament today

1 July 2008  Remuneration paid to legal aid lawyers to increase by ten percent

28 June 2008  Government not considering special dispensation for Zimbabweans

20 June 2008  Supreme Court interprets confidentiality provisions relating to refugee claims and overrules High Court and Court of Appeal

20 June 2008  World Refugee Day

18 June 2008  Optional Protocol to the International Covenant on Economic, Social and Cultural Rights adopted

13 June 2008  Mental health practitioners to receive training to improve their work with migrants and refugees

28 May 2008  High Court at Auckland dismisses application for review in conversion case

21 May 2008  House of Lords interprets Article 31(1) of the Refugee Convention

19 May 2008  Auditor General to undertake inquiry into the Immigration Service

12 May 2008  Enactment of Immigration Bill in doubt

5 May 2008  Immigration Advisers Licensing Act 2007 comes into force

3 May 2008  UN Disabilities Convention comes into force

24 April 2008  High Court at Auckland declines application by failed asylum-seeker for leave to file judicial review proceedings out of time
27 March 2008  Bhutanese refugees resettled

27 March 2008  New Transit Visa regime to impose additional cost
26 March 2008  New Transit Visa regime introduced

19 March 2008  High Court at Auckland dismisses interim order application by unsuccessful refugee claimant

7 March 2008  Professional standards and code of conduct for Immigration Advisers released

18 February 2008  High Court decision addressing crimes against humanity and exclusion added to Case Search page of this website

12 February 2008  Resettlement refugees to be screened for mental health problems

31 January 2008  Burmese resettlement refugees unable to leave Thailand for New Zealand

30 January 2008  RMS refugee resettlement agency urgently needs volunteers

29 January 2008  Six Court decisions added to Case Search page of this website


16 December 2008 The Immigration Bill has been reinstated from the 48th Parliament.

[31 The Capital Letter 48 (1472) (16 December 2008)]

10 December 2008 Today is the 60th anniversary of the Universal Declaration of Human Rights, 1948. For further information refer to the OHCHR UDHR 60 webpage at http://www.ohchr.org/EN/UDHR/Pages/60UDHRIntroduction.aspx. This page provides a link to a video of Eleanor Roosevelt, Chair of the UDHR Drafting Committee, on its adoption in 1948 and Navi Pillay, current UN High Commissioner for Human Rights.

20 November 2008 The Prime Minister, Hon John Key, has announced that the Commission Opening of Parliament is planned for Monday 8 December 2008, being the date on which the new Members of Parliament will be sworn in and a new Speaker chosen. It is the intention of the new administration to pass its tax legislation before Christmas 2008. More details of the Government's legislative programme in the upcoming session of Parliament will be released in "coming days".

["Hon John Key, "Opening of Parliament", Media Statement, 20 November 2008]

17 November 2008 The Prime Minister designate, John Key, has announced the portfolio allocation for the incoming Cabinet. The new Minister of Immigration is Dr Jonathan Coleman. The Associate Minister of Immigration is Kate Wilkinson who is also Minister of Labour. Dr Coleman was elected as the Member of Parliament for Northcote at the 2005 General Election. According to the biography on the website of the National Party, Dr Coleman studied medicine at Auckland University Medical School, followed by a post-graduate Diploma of Obstetrics at National Women's Hospital. He worked overseas for a number of years, including time with the Royal Flying Doctor Service in Outback Australia, and three years as a partner in an inner city general practice in London. In 1997 he achieved Membership of the Royal College of General Practitioners. In London he studied for a MBA at London Business School. Upon graduation, he worked for Booz Allen and Hamilton in London. After returning to New Zealand in 2001 he combined advisory work in the healthcare sector for PricewaterhouseCoopers with clinical practice.

["John Key's Cabinet", NZ Herald, Tuesday, November 18, 2008, p A5]

8 November 2008 Election day.

30 October 2008 The Court of Appeal has upheld an effective sentence of 24 months' imprisonment imposed after a plea of guilty to two counts of using documents with intent to defraud under s 229A of the Crimes Act 1961 and three counts under s 142(1)(c) of the Immigration Act 1987 alleging that the appellant had supplied information to an immigration officer and refugee status officers knowing that it was false or misleading in material respects. The appellant was a citizen of Turkey and the holder of a Turkish passport. He was also a citizen of Iraq. He was granted a visitor's visa to New Zealand but on arrival disposed of his legitimate Turkish passport and passed himself off as a refugee coming from a different destination, giving a different name and identity to the New Zealand immigration authorities. In the District Court the sentencing judge adopted as a starting point two years and nine months but then gave a very generous discount for a comparatively late guilty plea. On appeal, the Court of Appeal found that the starting point was well within the range available to the sentencing judge. It was not persuaded that the sentence was clearly excessive.

[R v Sabuncuoglu (CA298/2008); [2008] NZCA 448 (30 October 2008)]
1 October 2008 The Court of Appeal has reviewed sentencing in the context of immigration fraud and while not giving "a tariff judgment", has nonetheless made observations as to factors to be taken into account in the sentencing context. It has also commented on the current range of sentences being imposed in New Zealand for offences of this kind. The case involved a Somali man who, having become a Swedish citizen, arrived in New Zealand in 2004 and applied for recognition as a refugee under an assumed name. Eventually the Refugee Status Appeals Authority recognised him as a refugee. He then claimed various benefits from Work and Income New Zealand. In February 2008 he pleaded guilty to using a forged document (s 257(1)(b) Crimes Act 1961 - the use of a false birth certificate); making a false declaration (s 111 Crimes Act - his false declarations in support of his application for refugee status); and attempting to pervert the course of justice (s 117(e) Crimes Act - his provision of the false declarations to the Refugee Status Appeals Authority). In the District Court he was sentenced to 2 years imprisonment on the charges of forgery and attempting to pervert the course of justice, and eighteen months imprisonment on the false declaration charge (all concurrent sentences). The Court of Appeal, after considering sentencing levels for immigration fraud on appeal in the High Court, took the view that the highest starting point, taking into account the aggravating features in the charge of attempting to pervert the course of justice, was two years imprisonment. A discount of approximately 40% was to be allowed in recognition of the guilty plea, the appellant's youth and his crime-free record. Nine months was deducted from the two years to reach a final sentence of fifteen months imprisonment. There was no question of the sentence being served by way of home detention. The appellant was not entitled to be resident in New Zealand and could expect to be deported immediately upon the completion of his sentence. The Court recognised that a higher starting point of two and a half years might be appropriate in the future with significant uplifts where other persons are brought into New Zealand, where there is a commercial aspect to the fraud, or where other aggravating features are present. The Court stated that it wished to add its voice to those judges who have stressed deterrence as an important sentencing principle in this area. The Court said that the integrity of the country's immigration system was a vital part of its integrity as a state in deciding who may live within its borders. Those who dishonestly challenge the immigration system can expect deterrent sentences and can expect to be sent to prison.

[R v Hassan (CA420/2008); [2008] NZCA 402 (1 October 2008)]

26 September 2008 The 48th Parliament came to an end on Friday 26 September 2008 after adjourning for the General Election scheduled for 8 November 2008. When Parliament ended the Immigration Bill sat at No. 40 on the Order Paper for Tuesday, 23 September 2008. With the ending of Parliament, the Bill has lapsed and will have to be reintroduced when Parliament resumes in late November 2008 or early in December 2008 depending on the election result and how difficult it is to form a Government.

12 September 2008 The Prime Minister, Hon Helen Clark, has announced that the general election will be held on 8 November 2008. The date for the dissolution of Parliament will be 3 October 2008. Writ day will follow on 8 October 2008.

[Hon Helen Clark, "PM announces 2008 general election", Media Statement, 12 September 2008]

12 September 2008 The Legal Research Foundation, in conjunction with the Faculty of Law, Auckland University, will host a one day conference at Auckland entitled "Human Rights at the Frontier: New Zealand's Immigration Legislation - an International Human Rights Law Perspective". The conference will have as its focus the new jurisdiction of the Immigration and Protection Tribunal which is to be created by the Immigration Bill reported back to Parliament on 21 July 2008 following extensive Select Committee hearings. The proposed Tribunal will absorb the jurisdiction and powers of the present Refugee Status Appeals Authority, Removal Review Authority, Residence Review Board and Deportation Review Tribunal. In addition, the Tribunal will have jurisdiction to hear and determine protection claims under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 and under Articles 6 and 7 of the International Covenant on Civil and Political Rights, 1966.

The keynote speaker will be Professor James C Hathaway, preeminent refugee scholar and author of the seminal text, The Law of Refugee Status (Butterworths, 1991) and more recently of the widely acclaimed The Rights of Refugees under International Law (Cambridge, 2005). Professor Hathaway is currently Dean of the Faculty of Law, University of Melbourne. Also from Melbourne is Dr Michelle Foster, author of the groundbreaking, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge, 2007) which demonstrates that claims based on socio-economic deprivation are properly considered within the Refugee Convention. Dr Foster is Senior Lecturer & Director, Research Programme in International Refugee Law, Institute for International Law and the Humanities at the Melbourne Law School. The third international speaker is Dr Jane McAdam who is co-author with Guy S Goodwin-Gill of The Refugee in International Law 3rd ed (Oxford, 2007). Dr McAdam has also recently published Complementary Protection in International Refugee Law (Oxford, 2007) which is directly relevant to the new complementary protection regime proposed by the Immigration Bill. Dr McAdam is a Senior Lecturer at the Faculty of Law of the University of New South Wales and also Director of the "Climate Change 'Refugees' and International Law" Project at the Gilbert+Tobin Centre of Public Law. The three international speakers will be joined by Claudia Geiringer of Victoria University of Wellington, John Ip of the University of Auckland and Rodger Haines QC, Deputy-Chair of the Refugee Status Appeals Authority.

The venue for this full day conference is the Hyatt Regency Hotel, Waterloo Quadrant, Auckland. To register for this conference contact the Legal Research Foundation, PO Box 741, Shortland Street, Auckland, New Zealand. Telephone (09) 309 9540, Fax (09) 373 7473, Email info@legalresearch.org.nz. The conference fee is NZ$250 for members of the LRF. For non-members the fee is NZ$275.

11 September 2008 The Refugee Status Appeals Authority has issued a new practice note, being Practice Note 1/2008 (11 September 2008) which updates the previous practice note of 2004. Among the changes is a new section addressing appellants who are in custody. The new Practice Note supercedes all previous practice notes and is effective from 11 September 2008. It is accessible on the Authority's website at www.nzrefugeeappeals.govt.nz and also on the New Zealand Refugee Law website (www.refugee.org.nz).

11 September 2008 In a decision published today the Refugee Status Appeals Authority has reaffirmed New Zealand jurisprudence on the internal protection alternative, holding that even were it free to do so, it would not follow the decisions of the House of Lords in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 and AH (Sudan) v Secretary of State for the Home Department [2007] 3 WLR 832 which facilitate the withholding of recognition of refugee status. The Authority has emphasised that such withholding of recognition can only occur in a highly limited class of case where (a) the proposed internal protection alternative is accessible to the individual. This requires that the access be practical, safe and legal; (b) in the proposed site of internal protection there is no risk of being persecuted for a Convention reason; (c) in the proposed site of internal protection there are no new risks of being persecuted or of being exposed to other forms of serious harm or of refoulement; and finally, (d) in the proposed site of internal protection basic norms of civil, political and socio-economic rights will be provided by the State. The Authority has also declined to follow the two recent decisions of the High Court of Australia in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and SZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. In these two decisions the "protection" element of the refugee definition in Article 1A(2) was interpreted as "diplomatic protection".

In the same decision, addressing honour killings in Turkey, the Authority has held that the political opinion ground was the most appropriate Convention ground on which the claim succeeded. The Authority has made important observations about gender in the context of the political opinion ground and the need for that ground to receive a gender-sensitive interpretation. It concluded that "honour" enforces rigid control by men over women and their sexuality. It is about policing community norms and codes of behaviour, collective decisions and acts of punishment. Ultimately, it is about the distribution and exercise of power in Turkish society. The observance of honour reflects the gendered inequality of power in that society. In the specific context the Authority was satisfied that the claimant's assertion of her right to life and of her right to control her life and her challenge to inequality and the structures of power which support it, was plainly "political" as that term is used in the Refugee Convention.

The Authority's decision is available on the Case Search page of this website.

[Refugee Appeal No. 76044 (11 September 2008)]

7 August 2008 The Annual Report of the Refugee Status Appeals Authority to 30 June 2008 is now available on the Annual Reports page of this website.

1 August 2008 The Lawyers and Conveyancers Act 2006 comes into effect today. The Associate Justice Minister, Hon Rick Barker, has drawn attention to the consumer protection provisions of the new legislation which introduces a new complaints service for customers of lawyers and conveyancers and also establishes an independent three stage disciplinary process for reviewing complaints. Standards Committees run by the Law Society or the Society of Conveyancers will hear complaints in the first instance. If a party is dissatisfied with the decision, they may apply to the newly established Legal Complaints Review Officer, who has wide powers of review and may confirm, modify or reverse the decision of the Standards Committee, award costs against either party, and can lay a charge with the Lawyers and Conveyancers Disciplinary Tribunal. That Tribunal is the third part in the system and determines the most serious disciplinary charges against members of the legal and conveyancing professions. The Tribunal also receives applications regarding suspension, striking off and restoration of practitioners to the roll or register. The Legal Complaints Review Officer and Disciplinary Tribunal are administered by the Ministry of Justice.

[Hon Rick Barker, "Lawyers and Conveyancers Act comes into effect", Media Statement, 1 August 2008]

30 July 2008 The Federal Government of Australia has abandoned its practice of imprisoning all asylum-seekers in remote detention camps. In reforms introduced by the Rudd Government, boatpeople and other illegal migrants will be allowed to live in the community while their claims are processed. After identities, health and security checks have been completed, the only people to remain in detention will be those assessed as presenting "unacceptable risks" to the community, and others who repeatedly refuse to comply with visa conditions. The detention of children will be explicitly banned. Detention will now be based on seven principles, including the policy that mandatory detention remains essential, requiring initial detention for all illegal migrants to assess health and security, continuing for those presenting unacceptable risks or not complying with visa conditions; children and juveniles aboard fishing boats illegally operating in Australian waters will not be confined in detention centres; indefinite or arbitrary detention will not be allowed; detention will be used only as a last resort, for the shortest practicable time; and detainees will be treated fairly. The new policy could mean the release of many of the 257 people still in detention and whose cases will now be reviewed under new criteria already being used to carry out personal assessments of 72 people who have been held in detention for more than two years. The Minister of Immigration, Chris Evans, is reported as saying that 31 of this group should not have been in detention, 24 would be deported and the remaining 17 were subject to ongoing legal proceedings. He emphasised, however, that Labour would maintain a hardline on illegal migration, including the initial detention of asylum-seekers until health and security checks had been completed. Next week he and the Minister of Home Affairs, Bob Debus, will lead a delegation of senior officials to South East Asia to "reinvigorate" close cooperation against people-smugglers and any revival of the fleets of boatpeople that originally spurred the previous policy of mandatory and often indefinite detention.

[Greg Ansley, "Razor wire cut for Australia's asylum-seekers", NZ Herald, Wednesday, July 30, 2008, pp B1 & B3]

23 July 2008 Five court decisions have been added to the Case Search page of this website. A brief description of each case follows.

 Attorney-General v X (NZSC, 2008) - Confidentiality - Whether evidence produced by refugee claimant available for use in non-refugee proceedings, particularly extradition proceedings or proceedings in New Zealand for genocide or crimes against humanity

F v Refugee Status Appeals Authority - Religion - Conversion to Christianity - Proselytism - Consistency of RSAA decisions

M R v Refugee Status Appeals Authority - Judicial review proceedings brought six months out of time - Whether further time should be allowed

E & W v Refugee Status Appeals Authority - Whether costs should be awarded against legally aided plaintiffs who discontinued judicial review proceedings the day before the substantive hearing

X  v  Refugee Status Appeals Authority (Courtney J, 19 March 2008) - Joint hearing - Whether procedurally unfair - Religion - Conversion to Christianity - Whether RSAA entitled to conclude motivation not spiritual but instrumental or pragmatic

23 & 24 July 2008 The LexisNexis Immigration Law 2008 Conference will be held at the SkyCity Convention Centre at Auckland. Speakers include the Hon Clayton Cosgrove, Minister of Immigration, Hon Dr Lockwood Smith, National Party Spokesperson for Immigration, Beverley Wakem, Chief Ombudsman and Graeme Buchanan, Deputy Secretary Legal and International, Department of Labour. To view the full programme in PDF format go to http://www.lexisnexis.co.nz/conferences/seminars/2008/ImmigrationLaw2008/default.asp. Additional information is available from Customer Service on 09 368 9502 or send your request via email to: seminars@lexisnexis.co.nz.

22 July 2008 The Immigration Bill 2007 has been reported back to Parliament by the Transport and Industrial Relations Committee.  Several changes to the Bill have been recommended to reflect key concerns expressed in the ninety written and sixty-seven oral submissions received by the Committee. The key changes relate to the classified information system, the refugee and protection system and the detention and monitoring system. The Minister of Immigration, Hon Clayton Cosgrove, says the recommended changes are supported by the Government, which will continue to progress the new legislation, the biggest rewrite of immigration law for two decades.

The Select Committee report on the Immigration Bill as well as the amended form of the Bill is available on the website of the New Zealand Parliament at http://www.parliament.nz/en-NZ/SC/Reports/b/a/e/48DBSCH_SCR4142_1-Immigration-Bill-132-2.htm

[Hon Clayton Cosgrove, "Immigration Bill reported back", Media Statement, 22 July 2008]
22 July 2008 The Births, Deaths, Marriages and Relationship Registration Amendment Act 2008 was passed today. While maintaining access to birth, death, marriage and civil union registers, the new legislation contains a number of provisions aimed at reducing identity fraud and providing better collection management of personal information.

[Hon Rick Barker, "Act will ensure access to registers with more transparency", Media Statement, 23 July 2008]

14 July 2008 As part of its Tribunal Reform Programme the government has released a consultation document outlining its preferred approach to the reform process. The four key aspects of this preferred approach are to develop a new legislative framework for forty-seven existing tribunals, the establishment of a unified Tribunal Service, the reduction in the number of tribunals and the development of government guidelines for new tribunals. It is intended that establishing a unified structure will result in tribunals receiving better administrative, training, information technology and case management support. The Tribunal Service would be located as a new unit within the Courts structure. It would be similar to the Environment Court, which is also a standalone specialist body, on the same hierarchal level as the District Court, headed by a Principal Judge. The Ministry of Justice would be the administering body. The new legislation, to be called the Tribunals Act, would apply to all the forty-seven tribunals within the scope of the Programme, including the proposed Immigration and Protection Tribunal.

[Ministry of Justice, Tribunals in New Zealand: The Government's Preferred Approach to Reform (July 2008) <http://www.justice.govt.nz/pubs/reports/2008/tribunals-reforms-programme/tribunals-in-new-zealand/report.pdf>]
9 July 2008 The Ministry of Education has contracted Platinum IT Ltd to provide twelve computer training sessions for families with school age children from refugee backgrounds in 2008 under the project called Computers in Homes Programme for Refugee Families. The project has been developed to provide refugee children and their families with access to online education resources from home and to empower refugee families with the necessary computing tools and skills to become active participants in the online world. Families will be chosen on the basis of greatest need. Applicants must fit one or more of the following criteria: recently arrived as a quota refugee (within the last twelve months); family head by solo mother; family without computers; family with children in Year 9 to 13; own a computer but require training. If chosen for the Programme the successful applicant will need to have a phone line at home for the free dial up internet connection and a table on which to put the computer either in the lounge or in the communal living area. For the Computers in Homes - Refugee Recruitment Questionnaire contact Angela Gibbons, Platinum IT, PO Box 108011, Symonds Street, Auckland; Level 1, 740 Sandringham Road, Mt Roskill, Auckland (Phone 620 2090 or Fax 620 2091) or email angela.gibbons@platinumit.co.nz.

4 July 2008 Changes have been made to the Refugee policy contained in the INZ Operational Manual. The amendments will be published in the electronic and printed versions of the INZ Operational Manual on 28 July 2008.

[Immigration New Zealand, Immigration New Zealand Instructions: Amendment Circular No. 2008/09 (4 July 2008)]
1 July 2008 The Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill introduced to Parliament today removes inconsistencies within current legislation and will enable New Zealand to ratify the Convention.

[Hon Ruth Dyson, "Disability Issues Bill to enable UN Convention ratification", Media Statement, 1 July 2008]
1 July 2008 In the recent Budget the Government approved funding to allow the remuneration rates under the current legal aid schemes to be increased for 2008/09. The Legal Services Agency has announced that the level of funding approved will enable it to increase the rates of remuneration paid to legal aid lawyers and other listed providers by ten percent. This increase will be applied uniformly across all proceedings and forum categories for all levels of experience, and to any fixed and special fee rates applied under the Agency's current steps in the legal aid schemes - including the duty solicitor and police detention legal assistance schemes.

The increase in rates, fixed fees and special rates will be effective from Tuesday 1 July 2008 - the implementation date - being the commencement of the financial year for which the funding has been approved.

[Legal Services Agency, Circular Letter dated 23 May 2008]

28 June 2008 The Prime Minister, Hon Helen Clark, is reported as saying that the Government is not considering any special dispensation for Zimbabweans seeking refuge in New Zealand, but will exercise "discretion" in individual cases.

[Simon Collins, "PM rules out Zimbabwe refugee deal", NZ Herald, Saturday, June 28, 2008, p A7]

20 June 2008 Section 129T of the Immigration Act provides that confidentiality as to the identity of a refugee claimant and as to the particulars of his or her case must at all times, both during and subsequent to the determination of the refugee claim, be maintained by refugee status officers, the Refugee Status Appeals Authority and other persons involved in the administration of the Act. However, subs (3) goes on to provide that disclosure of particulars can be made in certain prescribed circumstances. In the High Court Baragwanath J held that s 129T afforded an assurance of absolute confidentiality of all evidence filed in support of the refugee claim and any disclosure under subs (3) could only be for the purpose of determining the claim for refugee status and not for any other purpose, including extradition or criminal prosecution in Rwanda or New Zealand. Alternatively, disclosure of the evidence by the refugee claimant beyond the Refugee Status Appeals Authority would prejudice any criminal trial and would, if necessary, be restrained by the High Court. In the Court of Appeal a majority held that the approach of Baragwanath J to s 129T was broadly correct. In her dissenting decision Ellen France J concluded that disclosure was permitted to other officials for the purposes of extradition or prosecution. The Supreme Court has held that the plain wording of the section supports the latter interpretation. As a matter of statutory interpretation, s 129T(3)(b) permits disclosure to those referred to in that paragraph for the purpose of their considering the extradition or prosecution of the refugee claimant. Disclosure is permitted not only of the refugee application as such but also any other information produced in support of it. In the result, s 129T permits information about the application for refugee status to be disclosed to officials who required that information to consider the claimant's possible extradition for a crime of a type described in Article 1F(a) of the Refugee Convention or prosecution under the International Crimes and International Criminal Court Act 2000. The Court recommended that the Department of Labour consider the development and adoption of a Code of Practice laying out the circumstances in which information may be disclosed under any of the categories in s 129T(3) or (4).

[Attorney-General v X [2008] NZSC 48 (20 June 200)]

20 June 2008 World Refugee Day is marked each year on 20 June.  To find out more about World Refugee Day go to http://www.unhcr.org/events/3e7f46e04.html.This year the focus is "Protection, a place to call Home". In New Zealand a number of activities are being planned. The programme will be launched on 15 June 2008 with the second annual celebratory football (soccer) match involving Wellington Invitational XI v World Refugee All Stars XI. Wellington Mayor Kerry Prendergast will be opening the game and the Hon Annette King is expected to present the winning team with the "The Hon. Annette King MP Trophy, 2007". The event is promoted by RMS Refugee Resettlement supported by Wellington City Council's Push Play Outreach Programme and Waterside-Karori AFC. The match will be held on Sunday 15 June 2008 at Waterside-Karori AFC grounds in Karori. Kick off is scheduled for 11am. Rain day postponement is set for the following Sunday, 22 June 2008. RMS Refugee Resettlement is the lead agency in New Zealand working to resettle refugees who arrive here under the Government quota system. Approximately 32% of the 750 refugees that arrive in New Zealand each year are settled in the Central region; of that amount, 24% are settled in Wellington, the Hutt valley and Porirua. This equates to about 180 refugees arriving in the Wellington area each year. If you would like to support the event by making any offer of assistance or donation, please contact Liz Barrett at wntemp@rms.org.nz or Peter Scott, Regional Manager (RMS) at peter.scott@rms.org.nz.

18 June 2008 The United Nations Human Rights Council has adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 1966. The Optional Protocol will provide the opportunity for individuals seeking a remedy for violations of economic, social and cultural rights to have their complaints adjudicated by the UN Committee on Economic, Social and Cultural Rights.

[Amnesty International, Economic, Social and Cultural Rights Strengthened, 19 June 2008]
13 June 2008 From July 2008 more than 100 mental health practitioners throughout New Zealand will receive training in cultural competency to improve their work with migrants and refugees. The $100,000 Cultural and Linguistically Diverse Workforce Development pilot project is funded from the Wings Innovation Fund and the project has been developed by the Asian Health Support Service of the Waitemata District Health Board and the Refugees as Survivors centre.

[Craig Borley, "Mental health of refugees given priority", NZ Herald, Friday, June 13, 2008, p A9]

28 May 2008 In the High Court at Auckland Harrison J has dismissed judicial review proceedings brought by an Iranian national who converted from Islam to Christianity but who was found by the Refugee Status Appeals Authority to be an ordinary convert who would not practise his faith or share his faith with others in Iran in a manner that would cause him to be of concern to the authorities there and lead to him suffering persecution. The High Court found that the challenge to the decision of the Authority was essentially an argument on the merits under the guise of an application for review. In addition, the High Court could not discern where the Authority had made a reviewable error. The factual and credibility conclusions reached by the Authority were all properly open to it on the evidence before it.

[F v Refugee Status Appeals Authority (High Court Auckland, CIV 2006-404-007714, 28 May 2008, Harrison J)]
21 May 2008 In R v Asfaw [2008] UK HL 31 (21 May 2008) the House of Lords had to determine whether Ms Asfaw had been properly convicted on two counts charging her with using a false passport and attempting to obtain air transport services from Virgin Atlantic by falsely representing that she was the person named in the false passport. Both counts related to the appellant's attempt to transit through the UK to the USA where she intended to claim asylum. It was accepted that the appellant, an Ethiopian national, had been imprisoned, tortured and raped in Ethiopia on account of her alleged support for student activism. Her father also was persecuted and died in police custody. She decided to leave Ethiopia and travel to the United States to claim asylum. With the help of an agent she left Ethiopia by air, travelling on a false Ethiopian passport. They stopped in an unknown Middle Eastern country and remained in the airport for about three hours. They arrived in the UK on 14 February 2005 at Heathrow Airport and passed through immigration control, with the agent presenting the passport on her behalf. The agent then left her in the airport for about an hour, after which he returned and gave her a false Italian passport, a false driving licence in the same name and a ticket to Washington DC. He then left. On the same day Ms Asfaw checked in for a Virgin Atlantic flight from Heathrow to Washington and for that purpose presented the false Italian passport. When she attempted to board the aircraft at the departure gates she was stopped. Her passport was examined and found to be false. She was arrested and shortly after expressed a wish to claim asylum. There is a statutory defence in s 31 of the Immigration and Asylum Act 1999 to certain, but not all charges. It requires a refugee to show that he or she came to the UK directly from the country where his or her life or freedom was threatened and presented him or herself to the authorities in the UK without delay; to show good cause for the illegal entry and to make a claim for asylum as soon as was reasonably practicable after arrival in the UK. However, because this defence applies to a limited number of offences only it did not include the offences of which Ms Asfaw was charged. The issue before the House of Lords was whether Article 31 of the Refugee Convention could be used as a "defence". Drawing on Article 31 Lords Bingham, Hope and Carswell (Lords Rodger and Mance dissenting) held that s 31 of the Act should not be read as limited to offences attributable to a refugee's illegal entry into or presence in the UK, but should provide immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit. Furthermore, in relation to the second count, it was an abuse of process to prosecute Ms Asfaw to conviction. On the date of the offence, she was "still running away" from persecution. Once that was established, count 2, being factually indistinguishable from count 1, she should not have been convicted at all. Consequently the appeal was allowed and the convictions quashed.

19 May 2008 The Prime Minister, Hon Helen Clark, and the Minister of Immigration, Hon Clayton Cosgrove have announced that the Government has invited the Auditor General to undertake an inquiry into the integrity of decision-making processes in the Immigration Service of the Department of Labour, with a particular focus on the Pacific Division. The inquiry will cover the actions of senior management in the Department of Labour and the Immigration Service and will include interactions between the Department of Labour and the State Services Commission. The Auditor General has been left to set his own terms of reference. The Prime Minister and the Minister ask that any individuals who have information which may reflect on the integrity of decision-making processes in the Immigration Service to raise any specific concerns with the Auditor General.

Three other enquiries or reviews are currently under way:

[Hon Clayton Cosgrove, "Auditor General Inquiry into Immigration Service", Media Statement, 19 May 2008]

12 May 2008 It is reported that with fewer than thirty-seven sitting days left before Parliament is likely to dissolve for the election, the government still has about 70 Bills to push through. The Immigration Bill is classed as "second tier" after major pieces of legislation classified as "top priority".

[Claire Trevett, "Emissions trading bill running out of time", NZ Herald, Monday, May 12, 2008, p A2]

5 May 2008 Under the Immigration Advisers Licencing Act 2007 Immigration Advisers who practice in New Zealand will have to be licenced from 4 May 2009. People who work offshore but give advice about New Zealand immigration matters will need to be licenced by 4 May 2010. Licencing is managed by the Immigration Advisers Authority, a statutory body that is hosted within the Department of Labour, but runs independently from the Department's day-to-day immigration functions. The professional standards and code of conduct that Immigration Advisers will have to meet in order to obtain and to keep a licence have now been released and are available on the Immigration Advisers Authority website www.iaa.govt.nz. Lawyers are exempt from the new licensing regime because they are subject to regulation and discipline under the Law Practitioners Act 1982 and (when enacted) the Lawyers and Conveyancers Act 2006.

3 May 2008 The Convention on the Rights of Persons with Disabilities, 2006 came into force on 3 May 2008 after it was ratified by 20 countries that have signed it. That figure has since risen to 25, but does not include the United States of America and the Russian Federation. So far, 127 of the 192 UN member states have signed the Convention. But only just over half of those have signed the Protocol which allows individuals and groups to complain to the United Nations that their governments are not implementing the Convention which outlaws all forms of discrimination at work on the basis of disability, including in hiring, promotion and working conditions. It requires equal pay for work of equal value. It is estimated that there are 650 million disabled people in the world. New Zealand signed the Convention on Saturday 31 March 2007.

[Patrick Worsnip, "UN pact for rights of disabled comes into force", Reuters, Saturday, May 3, 2008]

24 April 2008 Section 146A of the Immigration Act 1987 requires that any review proceedings under the Act must be commenced within three months after the date of the decision unless the High Court decides that by reason of special circumstances, further time should be allowed. In MR v Refugee Status Appeals Authority (High Court Auckland, CIV2007-404-005791, 24 April 2008, Wylie J) the proceedings were not filed until almost six months after the decision of the Refugee Status Appeals Authority was released. In declining an application under s 146A Wylie J noted that no adequate explanation or excuse for the delays which had occurred had been offered and the application therefore failed on the facts. In addition, the application was bound to fail as a matter of law. The fact that an applicant was not aware of the need to bring an application for judicial review within the time period is not sufficient to amount to special circumstances. In addition, the fact that an applicant has placed substantial reliance on third party advice will not generally be considered to amount to special circumstances.

A related application by the plaintiff for leave to bring review proceedings out of time to challenge a decision of the Removal Review Authority also failed. The plaintiff was one day late. While the delay was very short and had been properly explained, the proposed grounds on which the decision of the Removal Review Authority decision was to be challenged were without merit and the judicial review challenge was doomed to fail.

[MR v Refugee Status Appeals Authority (High Court Auckland, CIV2007-404-005791, 24 April 2008, Wylie J)]

27 March 2008 It is reported that more than 100 Bhutanese refugees have left Nepal to be resettled in the USA and other Western countries, including New Zealand. The Office of the United Nations High Commissioner for Refugees in Nepal says that the number should reach 200 by the end of this month and 10,000 by the end of the year.

["Refugees resettled", NZ Herald, Thursday, March 27, 2008, p A3]

27 March 2008 One consequence of the new Transit Visa regime which comes into operation on Friday 28 March 2008 is that travellers from many Asian and African countries will face an extra NZ$120 charge for flying through New Zealand.

[Mike Houlahan, "Travellers to be hit with transit visa costs", NZ Herald, Thursday, March 27, 2008, p A5]

26 March 2008 From Friday 28 March 2008 transit visas for people who will be in New Zealand for less than twenty-four hours and who will not leave the transit area of the airport will be required for all travel via New Zealand, regardless of where the traveller has come from or his or her destination, unless that person is specifically exempted by New Zealand's immigration policy. Hitherto Transit Visas were only required for people travelling to and from the Pacific. The Minister of Immigration, Hon Clayton Cosgrove, says that the extension of the transit policy reflects increased security requirements and changing travel patterns. In particular with new air routes continually opening up, the Government had considered it prudent to introduce this new policy to strengthen risk management and to future-proof border control relating to people transiting through New Zealand. All travellers will need a transit visa unless they are travelling on a passport from a country on the list of visa-free countries published by Immigration New Zealand on www.immigration.govt.nz/visafree (also found in Section E2.1.5 of the Immigration Operational Policy Manual); or they are a citizen of Australia; or their destination after New Zealand is Australia, and they hold a current visa allowing them to travel to Australia; or they have a current visa allowing them to travel to New Zealand; or they are citizens of one of the following countries - Bahamas, Peru, Bermuda, Republic of Marshall Islands, Colombia, Samoa, Federated States of Micronesia, Solomon Islands, Kiribati, Tonga, Nauru, Tuvalu, Palau, Vanuatu and Papua New Guinea.

[Hon Clayton Cosgrove, "New Transit Visa Requirements", Media Statement, 26 March 2008]

19 March 2008 In X v Refugee Status Appeals Authority (High Court Auckland CIV-2008-404-000178, 19 March 2008) Courtney J declined an application for interim relief under s 8(2) of the Judicature Amendment Act 1972 by an unsuccessful refugee status claimant who had sought a declaration that the Attorney-General take no steps to remove her pending determination of the judicial review proceedings. After a detailed consideration of the various challenges to the decision of the Authority, Courtney J found that no error had been identified and as there was no real contest between the parties the application for interim relief would be dismissed.

[X v Refugee Status Appeals Authority (High Court Auckland, CIV-2008-404-000178, 19 March 2008, Courtney J)]

7 March 2008 Under the Immigration Advisers Licencing Act 2007 Immigration Advisers who practice in New Zealand will have to be licenced from 4 May 2009. People who work offshore but give advice about New Zealand immigration matters will need to be licenced by 4 May 2010. Licencing is managed by the Immigration Advisers Authority, a statutory body that is hosted within the Department of Labour, but runs independently from the Department's day-to-day immigration functions. The professional standards and code of conduct that Immigration Advisers will have to meet in order to obtain and to keep a licence have now been released and are available on the Immigration Advisers Authority website www.iaa.govt.nz.

[Hon Clayton Cosgrove, "The new rules spelt out for Immigration Advisers", Media Statement, 7 March 2008]

18 February 2008 The decision in X & Y v Refugee Status Appeals Authority (High Court Auckland, CIV2006-404-4213, 17 December 2007, Courtney J) is now available on the Case Search page of this website. The case deals with Exclusion - Burden of proof - Benefit of doubt - Crimes against humanity - Whether necessary to specify a particular proscribed act or a specific instance of a proscribed act - Relevance of non-binding UNHCR guidelines - Jurisdiction to determine plausibility of testimony.

12 February 2008 A review of New Zealand's refugee resettlement system by PriceWaterhouseCoopers is understood to recommend mental health assessments for resettlement refugees before they arrive in New Zealand and intensive case management for traumatised individuals for at least two years after arrival in New Zealand. The Department of Labour has refused to comment on the report because it "has yet to be finalised". The refugee mental health agency, Refugees as Survivors currently assesses all resettlement refugees who arrive at the Mangere Refugee Resettlement Centre and last year established a mobile team for resettlement refugees with continuing mental health problems in Auckland. The Agency also has a branch in Wellington. There are no specialist refugee mental health services in the other areas where resettlement refugees live. The issue has received prominence after a Somali woman allegedly attacked the pilots of an aircraft flying from Blenheim to Christchurch with a knife on Friday, 8 February 2008, injuring the two pilots and a female passenger.

[Simon Collins, "Refugees face mental health tests", NZ Herald, Tuesday, February 12, 2008]

31 January 2008 The Department of Labour has confirmed that under the UNHCR quota refugee resettlement programme it has issued residence visas to a group of approximately twenty Burmese refugees presently living in Thailand but in respect of whom the Thai authorities have not issued the necessary exit permits to allow them to travel to New Zealand. A regional spokeswoman for the UNHCR is reported as accusing the Thai authorities of barring the group from resettling in New Zealand because they are a "human zoo" tourist attraction in a remote area of Thailand.

[NZPA, "Thais block 'human zoo' refugees from moving to NZ", nzherald.co.nz, Thursday, January 31, 2008; NZPA, "Neck-ring refugees kept in camp", NZ Herald, Monday, February 4, 2008, p A11]

30 January 2008 RMS Refugee Resettlement (a non-profit, non-governmental, non-sectarian incorporated society which provides assistance to refugees resettled in New Zealand) urgently needs volunteers. Contact Chandra on (09) 621-0013 or Chandra.Yogeswaran@rms.org.nz.

[Melanie Allan, "Hand up for refugees", Central Leader, Wednesday, January 30, 2008, p 11]                                                

29 January 2008 Six Court decisions have been added to the Case Search page of this website.  A brief description of each case follows.


Mohebbi v Department of Labour - Detention - Detention for unreasonable period - Whether detention in custody pending removal may become illegal if it continues for unreasonable period - whether arbitrary detention in terms of s 22 of the New Zealand Bill of Rights Act 1990

MA v Attorney-General - Confidentiality - Use of documents seized by Police - Whether may be used in cancellation proceedings - Privilege - Whether litigation privilege applies to immigration advisers

Attorney-General v X and Z (CA, 2007) - Confidentiality - Whether evidence produced by refugee claimant available for use in non-refugee proceedings particularly extradition proceedings or proceedings in New Zealand for genocide or crimes against humanity

AA v Refugee Status Appeals Authority - Fairness - Credibility findings - Whether independent evidence required before adverse finding can be made - Lies - Significance of

Hassan v Department of Labour - Article 31 as a defence to fraud charges - Coming directly from - Provided they present themselves without delay - Sentence - Factors to be taken into account

R v Zanzoul (No. 2) (CA, 2006) - Article 31 as a defence to a charge of possessing a false passport - Coming directly from - Sentence - Factors to be taken into account

 

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