INTRODUCTION
 
LEGISLATIVE DEVELOPMENTS
Border Control
    Limited Purpose Visa/Permit
    Transit Visa Provisions Expanded
    Bonds
    Expulsion at the Border - Turnaround
 
Residence
    Policy
    Legislation
 
Miscellaneous
    Revocation
    Electronic Grants
    Obligation to Inform
    Disciplining Advisers
    Alien Smuggling

Removal
    Background
    The New Procedures - Two Notable Features
    The Transitional Provisions

Security Cases

Refugees
    First Instance Determination
    Appeal
    Confidentiality
    Parallel Immigration Applications

Judicial Review

Legal Aid

JUDICIAL DEVELOPMENTS
New Zealand Citizenship in the Removal Process

Other Court Challenges to the Removal Process

Residence and the Residence Appeal Authority

Refugees and the Refugee Status Appeals Authority
    Whether a Duty to Investigate
    Exclusion - Article 1F(b)
    Internal Protection

Reasons

Judicial Review - General
    Appeals and Review
    Legitimate Expectation

Torture Convention

INTRODUCTION
 
Over the past several years New Zealand has faced an almost unchanging pattern of immigration problems:

• A persistent outflow of population overseas. Despite a Government target of a net gain of 10,000 migrants, New Zealand suffered a loss of 10,000 people during the 12 months to March 1999. According to documents released in the Budget, net migration is expected to remain negative through most of the forecast period, with the four years to March 2002 expected to see a net outflow of 19,000 migrants. ⁽¹⁾ At the same time, a report completed by the UN Population Fund says that New Zealand will have the fastest growing population of any developed country next century. It estimates that the current population of 3.7 million will increase 36 per cent to 4.9 million by 2025; ⁽²⁾
 
• A concerted drive for migrants. On 2 June 1998 the Minister of Immigration announced that the immigration target for the 1998-1999 financial year will be 38,000 people, plus or minus 10 per cent. The target for the previous two financial years had been 35,000 people, plus or minus 10 per cent. The Minister said the new target would help the Coalition Government meet its goal of a net gain of 10,000 people a year on average over the medium term, ie, five to ten years. ⁽³⁾ The policy criteria are seen as either too wide and over-inclusive, ⁽⁴⁾ or too narrow. ⁽⁵⁾ Residence approvals in the year ended 30 June 1998 totalled 30,678 compared with a total of 33,683 in the year ending 30 June 1997. ⁽⁶⁾ In the 1995/1996 year the total was 54,453 and in 1992/1993 it was 29,649; ⁽⁷⁾
 
• A relatively static population of overstayers. Although the New Zealand Immigration Service (NZIS) does not maintain a list of overstayers per se and precise statistics are not available, the population of persons in New Zealand unlawfully has historically been between 15,000 and 20,000 persons. ⁽⁸⁾ However, the removals regime has chronically underperformed and the NZIS does not know how many persons are in New Zealand unlawfully. ⁽⁹⁾
 
• The Residence Appeal Authority has complained that the percentage of NZIS residence decisions found incorrect continues to grow "at a somewhat alarming rate". For the year ended 31 December 1997 more than a quarter of residence decisions made by the NZIS were wrong. ⁽¹⁰⁾ The figure for the year ended 31 December 1998 was very much the same if one excluded approximately 140 Bangladeshi cases in which the NZIS had incorrectly interpreted the applicable terms of Government residence policy. If, however, these cases are added, the number of decisions found to be incorrect by the Authority was 38 per cent. ⁽¹¹⁾
 
• In its report to 31 December 1997, the Removal Review Authority reported that the backlog of appeals (in 1995 it numbered 540) had been all but eliminated. ⁽¹²⁾ In the 1997 calender year the Authority received 435 appeals and delivered 450 decisions, of which 24.1 per cent were allowed. ⁽¹³⁾ In the 1998 calender year 459 appeals were lodged and 322 decisions delivered, of which 24.8 per cent were allowed. ⁽¹⁴⁾ In 1997 there were 19 appeals to the High Court under s 115A of the Immigration Act 1987 and nine applications for judicial review. ⁽¹⁵⁾ The 1998 figures were 22 appeals and 19 applications for judicial review. ⁽¹⁶⁾
 
• The number of refugee applications received has shown only a modest increase over the past several years. Recent financial year figures how that in 1995/6 the figure was 1,064; in 1996/7 it was 1,534 and in 1997/8 it was 1,738. In the period July 1998 to December 1998 the figure was 2,009, of which there were 504 applications by Indonesian nationals and 221 by Thai nationals. Increasing measures have been taken to deter asylum-seekers from arriving in New Zealand;
 
• Immigration as a topic remains high on the political agenda.

 
LEGISLATIVE DEVELOPMENTS

Border Control
 
Limited Purpose Visa/Permit
 
The Immigration Act 1987 permitted the grant of two kinds of visas and permits (hereinafter "permit" unless otherwise indicated by the context): residence permits and temporary permits, the latter falling into three categories only - visitor, student and work permits. ⁽²⁶⁾ The Immigration Amendment Act 1999 introduced a fourth category of permit, to be known as a limited purpose permit. ⁽²⁷⁾ The Explanatory Note in the Immigration Bill explained that a limited purpose permit recognizes that there are certain high risk markets in which the Government operates. The limited purpose permit is intended "to open up certain high risk markets, particularly in the area of bringing fee-paying students to New Zealand. The permits will be available only to persons from visa-required countries, and only for situations envisaged by regulations". Some "de-coding" of this explanation is required. In 1992 the Chinese student policy was tightened after a large number of PRC students in New Zealand sought refugee status after the Tiananmen Square massacre of June 4, 1989. ⁽²⁸⁾ The policy was policy was relaxed in 1997 when a trial quota of 400 PRC students was allowed entry. ⁽²⁹⁾ In a press release issued by the Minister of Immigration in October 1997, it was stated that education services earned New Zealand around NZ$300 million a year in foreign exchange with the result that the Government aimed to facilitate the entry of foreign students. ⁽³⁰⁾ On 17 June 1998 the Minister of Education and the Minister of Immigration announced that the quota of 400 students from the PRC would be extended to 1,000 students and tight criteria lifted from 1 July 1998. ⁽³¹⁾ In October 1998 the Minister of Immigration, in announcing that the PRC student quota would be increased from 1,000 places to 4,000 places each year said that the increase was expected to provide a net benefit of about NZ$30 million in international student sales and benefit a wide range of education providers in secondary, tertiary and English language training institutions. At the same time the Minister emphasized that the Government was "retaining a cap on numbers in order to manage potential risks such as overstaying and asylum-seeking". ⁽³²⁾ The limited purpose permit was introduced to provide a further means of managing that "risk".
 
Limited purpose permits can be obtained for the standard purposes of visiting, working and studying. ⁽³³⁾ A limited purpose permit allows the holder to be in New Zealand for an express purpose only. ⁽³⁴⁾ However, a limited purpose visa is appropriate "only if" the visa officer identifies a risk in the particular case that the person will remain in New Zealand beyond the expiry of his or her permit and the officer considers that the issue of a limited purpose visa rather than a temporary visa is necessary in the particular case to manage that risk. ⁽³⁵⁾ The limited purpose permit is granted only for such period as is appropriate to achieve the express purpose for which the permit was granted, ⁽³⁶⁾ and while a further limited purpose permit can be applied for, ⁽³⁷⁾ there is power to effectively revoke the permit once the purpose for which it was granted is achieved. ⁽³⁸⁾
 
The principal disadvantage of a limited purpose permit is that the holder, whether before or after the expiry of the permit, cannot apply for a permit of a different type while in New Zealand, nor request a special direction or a permit under s 35A. ⁽³⁹⁾ But most importantly, the holder cannot bring any appeal under the Immigration Act 1987, whether to the Removal Review Authority, the Residence Appeal Authority, the Deportation Review Tribunal or to the High Court. ⁽⁴⁰⁾ There is, however, no privative clause in relation to limited purpose permits with the result that the remedy of judicial review is preserved. ⁽⁴¹⁾ However, legal aid is not available to the holder of a limited purpose permit or to a person who is in New Zealand unlawfully. ⁽⁴²⁾ The restriction on the grant of legal aid does not apply to holders of a limited purpose permit or to overstayers who have applied for refugee status and who wish to challenge the decline of that status. ⁽⁴³⁾
 
It should also be noted that over and above the additional control facilitated by the limited purpose permit, a visa officer can now require a bond for travellers who are marginal in terms of their immigration risk. Such persons can be required to post a bond which will be refunded to them once they have departed New Zealand. ⁽⁴⁴⁾
 
It remains to be seen whether the limited purpose permit regime will be applied to those categories of persons who are historically most at risk of becoming overstayers, namely citizens of Samoa, Tonga, Great Britain, the United States of America, Thailand, Fiji, Japan, Korea and India. ⁽⁴⁵⁾
 
Transit Visa Provisions Expanded
 
On 30 June 1998 the Minister of Immigration announced that the number of countries whose citizens require transit visas when passing through New Zealand was to increase from 24 to 70. The measure was said to be "to manage risks and to clamp down on refugee scams". ⁽⁴⁶⁾ The Immigration (Transit Visas) Regulations 1998 implemented this decision. ⁽⁴⁷⁾ Dramatically, on 21 October 1998 citizens of Indonesia lost their right of visa-free entry to New Zealand and found themselves in the position of requiring even a transit visa to pass through New Zealand. ⁽⁴⁸⁾ These changes were made to prevent Indonesians of Chinese ethnicity from seeking refugee status in New Zealand in the aftermath of the violence, and in particular the anti-Chinese violence, which occurred on May 13-15, 1998, particularly in Java. ⁽⁴⁹⁾ In announcing the changes, the Minister of Immigration said that there had been over 300 refugee applications in the past four months from Indonesian nationals. This, he said, was "a very serious trend" and that by suspending the visa-free status for Indonesian nationals, New Zealand was better placed to "manage the risk of people seeking refugee status" upon arrival in New Zealand. ⁽⁵⁰⁾ Following the massive refugee crisis caused by the outflow of Kosovar refugees into Albania, Macedonia and Montenegro, the New Zealand Government moved quickly to prevent the spontaneous arrival of such refugees in New Zealand. On 1 July 1999 the Immigration (Transit Visas) Regulations 1999 came into force. ⁽⁵¹⁾ In addition to revoking and replacing the 1998 Regulations, these Regulations added citizens of Albania, Macedonia, Yemen and Yugoslavia to the list of persons who require transit visas. The New Zealand Government did agree, however, to offer permanent refuge to 200 Kosovar Albanian families with family ties in New Zealand. ⁽⁵²⁾
 
Little attempt has been made to reconcile these new transit visa provisions with New Zealand's obligations under the Refugee Convention.
 
Until passage of the Immigration Amendment Act 1999, only regulations could classify persons as persons who require transit visas. ⁽⁵³⁾ The 1999 Amendment Act now allows the Minister of Immigration, by special direction to classify a person of a type who requires a transit visa. ⁽⁵⁴⁾ Special directions made by the Minister concerning transit visas must, however, be published in the Gazette and expire after three months. ⁽⁵⁵⁾ The 1999 Amendment Act has also extended the "sunset clause" which originally stipulated that transit visa regulations expired after 30 June in the year following that in which the regulations were made, unless extended by a further regulation. The sunset clause now operates only after a period of three calendar years from the date on which the regulations were made. ⁽⁵⁶⁾
 
Bonds
 
The Immigration Amendment Act 1999 introduced a formal system of bonds to manage "immigration risks". The principal provision is s 148B. Forfeiture of a bond is at the discretion of the Minister or an immigration officer or a visa officer. ⁽⁵⁷⁾ The person who is eligible for the refund of a bond must apply for the refund within 12 months of the bond becoming refundable, or the bond is forfeited to the Crown. ⁽⁵⁸⁾ No interest is payable on a bond to the person who paid it. Instead, the interest is to be applied towards the costs of administering the bond system, and any surplus interest must be paid to the Crown Bank Account. ⁽⁵⁹⁾ A refund of a bond must be paid either to the person who paid it or to a person authorized by that person to receive it. ⁽⁶⁰⁾
 
Bonds can be imposed as a condition to the grant of a temporary visa, ⁽⁶¹⁾ a limited purpose permit visa, ⁽⁶²⁾ a temporary permit ⁽⁶³⁾ and a residence permit. ⁽⁶⁴⁾ No bond may be imposed on any refugee status claimant for any matter relating to refugee status, and any bond imposed upon a person before that person became a refugee status claimant must be refunded if the person is subsequently determined to be a refugee. ⁽⁶⁵⁾
 
Expulsion at the Border - Turnaround
 
Under the 1951 Refugee Convention, New Zealand cannot expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. This obligation does not, however, apply to a refugee in respect of whom there are reasonable grounds for regarding him or her a danger to the security of New Zealand, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of New Zealand. ⁽⁶⁶⁾ There is also a discreet non-refoulement obligation in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984. Under this instrument New Zealand cannot expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. New Zealand is a party to both Conventions and in addition, New Zealand recognizes the competence of the Committee Against Torture to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention against Torture. ⁽⁶⁷⁾
 
While neither Convention has been wholly incorporated into New Zealand domestic law, Articles 32 and 33 of the Refugee Convention have been so incorporated by s 129X of the Immigration Act 1987. It is to be noted that this statutory provision applies not only to a person who is recognized as a refugee in New Zealand, but also to refugee status claimants. The latter is a result of the fact that the refugee status determination process is declaratory, not constitutive. This necessarily requires the presumptive application of certain provisions of the Convention to refugee claimants. ⁽⁶⁸⁾

The significance of the non-refoulement obligation in the border expulsion situation does not require elaboration. Breaches of that obligation do, however, occur. ⁽⁶⁹⁾
 
Since at least mid-1996 there have been reports that boats carrying PRC nationals have left China with the intention of arriving in New Zealand. ⁽⁷⁰⁾ The arrival in New Zealand by sea or by air of a large number of persons, presumably without travel documents and seeking refugee status, would present the government with considerable logistical difficulties. Such problems have already been encountered by both Australia and the United States of America. ⁽⁷¹⁾ Yet until mid-1999, persons refused a permit at the New Zealand border could be detained for only 28 days pending summary expulsion from New Zealand. ⁽⁷²⁾ If not removed within that period, they became subject to removal under Part II of the Immigration Act 1987. While this Part of the Act permits detention, the procedures are not amenable to rapid turnaround and there is a right of appeal to the Removal Review Authority. ⁽⁷³⁾ The absence of an express power to detain applicants for refugee status while their status is being investigated was noted in D v Minister of Immigration [1991] 2 NZLR 673, 676 (CA), but no such power was conferred by the subsequently enacted Immigration Amendment Act 1991. The detention of asylum-seekers is a controversial issue. ⁽⁷⁴⁾
 
Nor is such express power contained in the Immigration Amendment Act 1999. But in provisions originally scheduled to come into effect on 1 October 1999, the turnaround procedures were amended to allow for the 28 day period of detention permitted by s 128(7) and (14) to be extended by a District Court Judge either for seven days at a time or, where the person detained is a member of a group of people who arrived in New Zealand on the same ship or aircraft, for such longer period as the Judge thinks necessary in the circumstances "to allow all the persons in the group concerned to be properly dealt with". ⁽⁷⁵⁾
 
On 15 June 1999 the Minister of Immigration announced that a vessel had left Honiara in the Solomon Islands on the previous Saturday evening with 102 Chinese nationals aboard, with the declared intention of landing in New Zealand. ⁽⁷⁶⁾ On the following day, 16 June 1999, Parliament enacted the Immigration Amendment Act (No. 2) 1999 which had the effect of bringing into force from 16 June 1999 the amendments to the turnaround provisions as well ancillary sections relating to custody and those provisions which make it an offence to wilfully aid or assist other persons to arrive in New Zealand otherwise than in compliance with the requirements of the Immigration Act 1987. ⁽⁷⁷⁾ It subsequently transpired that the vessel concerned had landed in Papua New Guinea instead. ⁽⁷⁸⁾
 

Residence

Policy

A number of immigration policy changes were announced by the Minister of Immigration on 12 October 1998. ⁽⁷⁹⁾ On 2 March 1999 the New Zealand Immigration Service announced business immigration changes to Government residence policy and Government immigration policy. ⁽⁸⁰⁾ Most importantly, however, in mid-July 1999 the re-drafted New Zealand Immigration Service Operational Manual was released, replacing all previous statements of Government immigration policy. ⁽⁸¹⁾ All visa and permit applications lodged after 26 July 1999 will be assessed in terms of the policy as set out in the revised manual. On 26 July 1999 the new manual was released over the Internet. It is available at no cost at http://www.immigration.govt.nz.
 
Legislation
 
As mentioned, the requirements which may be imposed on the grant of a residence permit now include the posting of a bond that is refundable in whole or in part if the other requirements imposed on the permit holder are met. ⁽⁸²⁾ Forfeiture of the bond is additional to the revocation of the permit under s 20(1)(d) of the Act. ⁽⁸³⁾
 
The power of the Residence Appeal Authority to receive evidence not provided to the visa officer or immigration officer before the first instance decision was made has been amended. In particular, the mandatory "shall not consider" contained in the original s 18F(4)(b) has been replaced by the permissive "may not consider" in the new s 18F(4)(b). ⁽⁸⁴⁾ It must be shown that the information or evidence existed at the time the decision to refuse the visa or permit was made, that the appellant could not, by the exercise of reasonable diligence, have placed that information or evidence before the visa officer or immigration officer at the time at which the officer made the decision on the application (cf the earlier "at the time the application was made") and that in all the circumstances it is fair to consider the information or evidence. ⁽⁸⁵⁾
 
Significantly, these restrictive criteria do not apply when the Residence Appeal Authority is considering whether to make a recommendation under s 18D(1)(f) that the special circumstances of the applicant are such as to warrant consideration by the Minister as an exception as to Government residence policy. ⁽⁸⁶⁾ In such a case the only criteria for the reception of information or evidence not provided at first instance is whether "it is necessary for it [the Authority] to have the information or evidence for the purpose of considering whether or not to make a determination under s 18D(1)(f)".

 
Miscellaneous
 
Revocation
 
Where a residence permit is revoked under s 20 of the Immigration Act 1987 on the grounds of administrative error or on the grounds that the permit was procured by fraud, forgery, false or misleading representation, or concealment of relevant information or because a condition imposed on the permit holder under s 18A has not been met and the appeal to the Deportation Review Tribunal under s 22 is unsuccessful, the person thereafter has no right to appeal to the Removal Review Authority. ⁽⁸⁷⁾
 
Electronic Grants
 
Visas and permits may now be issued or granted electronically. ⁽⁸⁸⁾
 
Obligation to Inform
 
A significant new obligation introduced by the new legislation is the obligation to inform. ⁽⁸⁹⁾ Every person who applies for any type of visa, permit or exemption under the Act has the obligation to inform an immigration officer of any relevant fact, including any material change in circumstances that occurs after the application is made, if that fact or change in circumstances may affect the decision on the application or may affect a decision to grant a permit in reliance on the visa for which the application is made. Failure to comply with the obligation renders any visa or permit granted subject to cancellation or revocation.
 
Disciplining Advisers
 
It is also now an offence for lawyers, immigration consultants and others to wilfully mislead any person, or to act negligently or unprofessionally (including charging excessively) while assisting that person, for financial reward, in any application for a permit or visa or in any proceedings before the Removal Review Authority, the Residence Appeal Authority, or the Refugee Status Appeals Authority. ⁽⁹⁰⁾ The penalty is imprisonment for a term not exceeding three months or to a fine not exceeding $5,000. ⁽⁹¹⁾
 
Alien Smuggling
 
Alien smuggling has also been criminalized. It is now an offence for a person, whether in New Zealand or otherwise, to wilfully aid or assist any other person to arrive in New Zealand in a manner that does not comply with s 126(1) of the Act; or to arrive in New Zealand without holding a visa, where the person requires a visa to travel to New Zealand; or to complete an arrival card in a manner that the person aiding or assisting knows to be false or misleading in any particular. The penalty is imprisonment for a term not exceeding three months, or to a fine not exceeding $5,000 for each person in respect of whom the offence is committed. ⁽⁹²⁾
 

Removal
 
Background
 
The Immigration Amendment Act 1999 has entirely overhauled the procedures for the removal of persons in New Zealand unlawfully. The reforms are of far reaching effect and represent a further refinement of the system of administrative removal which was first introduced by the principal Act in 1987, a reform which "decriminalized" the earlier system of prosecution proceedings under the Immigration Act 1964. In their original form, the post-1987 procedures required removal orders to be made by the District Court on the inter partes application of an immigration officer. ⁽⁹³⁾ This process consumed an enormous amount of court time, to seeming little effect. In 1991 the Immigration Amendment Act 1991 transferred the power to issue a removal order to immigration officers, the oversight of the District Court being confined to the endorsing of the removal order, on the ex parte application of the immigration officer, after service but prior to the removal order being executed. ⁽⁹⁴⁾ However, even these streamlined procedures proved to be incapable of effective enforcement:

 (a)    There was no requirement on persons unlawfully in New Zealand to leave the country. Such requirement only came into being upon the service of the removal order. ⁽⁹⁵⁾ Finding the person in order to serve the removal order was an essential pre-requisite to the entire process. Even once served, the person had 42 days within which to leave voluntarily, or to appeal to the Removal Review Authority. ⁽⁹⁶⁾ If the appeal was unsuccessful, the person would then have to be located a second time for the purpose of executing the removal order. Further delays could result as the person could, at any time, seek a special direction from the Minister under s 130 of the Act or judicial review proceedings could be taken to challenge any of the earlier decisions variously taken by immigration officers, the Minister, the Residence Appeal Authority, the Removal Review Authority and the Refugee Status Appeals Authority;

(b)    The meagre resources applied by Government to the removal process severely compounded the problems. In 1997 the estimated number of overstayers in New Zealand was 19,557. Yet in the 1997/8 year only 960 people were removed from New Zealand after service of a removal order. ⁽⁹⁷⁾ In the 1998/9 year the number of people removed was 1,508. ⁽⁹⁸⁾ The number of enforcement officers employed by the Compliance section of the New Zealand Immigration Service in the calendar years 1997 and 1998 was 28 and 30 respectively. ⁽⁹⁹⁾

(a)    There is now an express statutory obligation on persons in New Zealand unlawfully to leave New Zealand. ⁽¹⁰¹⁾ The obligation arises whether the person came to be in New Zealand unlawfully as a result of the expiry or revocation of a permit, or because entry into New Zealand was without a permit or exemption, or because an exemption from the requirement to hold a permit has ceased, or because of loss of New Zealand citizenship, or otherwise. ⁽¹⁰²⁾ The obligation to leave also arises whether or not the person is aware of the obligation. ⁽¹⁰³⁾ The Department of Labour is under a statutory duty to communicate the obligation to leave to persons seeking visas or permits; ⁽¹⁰⁴⁾
 
(b)    The 42 day period for appealing to the Removal Review Authority now starts to run automatically on the first day on which a person becomes unlawfully in New Zealand. ⁽¹⁰⁵⁾ Where a person, while still lawfully in New Zealand, has lodged an application under s 31 for reconsideration of a decision to decline another temporary permit, the 42 day period begins to run on the day on which the person receives notification under s 31 of the confirmation of the decision to decline to issue a permit. ⁽¹⁰⁶⁾

Security Cases
 
The new Part IVA of the Act sets out special procedures in cases involving security issues. ⁽¹¹⁶⁾ The provisions are too long and detailed to permit sensible summary. Their effect, however, is that the Director of Security (under the New Zealand Security Intelligence Service Act 1969) may provide a security risk certificate to the Minister of Immigration. ⁽¹¹⁷⁾ If the Minister makes a preliminary decision to rely on the security risk certificate, the Minister must give notice to that effect to the chief executive of the Department of Labour. The effect of such ministerial notice is to suspend the processing of any application or other matter in relation to the named individual and to require that any appeal before the Residence Appeal Authority, the Removal Review Authority, the Deportation Review Tribunal, the District Court or the High Court to be suspended. Only appeals before the Refugee Status Appeals Authority are permitted to continue. ⁽¹¹⁸⁾ The ministerial notice also requires the detention of the named individual by the police. ⁽¹¹⁹⁾ The person on whom a ministerial notice is served may seek a review by the Inspector-General of Intelligence and Security of the decision of the Director of Security to make the security risk certificate. ⁽¹²⁰⁾ If the Inspector-General decides that the certificate was not properly made the person is to be released from custody and the normal immigration procedures resume. ⁽¹²¹⁾ If the certificate is confirmed or if no review is sought, the Minister has three working days within which to decide whether to rely on the confirmed certificate. ⁽¹²²⁾ Where the Minister decides to rely on the certificate, any visa or permit is cancelled and the person will be removed or deported unless he or she is a refugee and protected by the non-refoulement obligation contained in s 129X. Such person is to be released from custody and given an appropriate temporary permit. ⁽¹²³⁾ The person named in a security certificate may, with the leave of the Court of Appeal, appeal to the Court of Appeal on a question of law only. ⁽¹²⁴⁾ The security provisions are silent as to the separate non-refoulement obligation contained in the Convention against Torture. As Article 3 of the Convention contains no exception for national security cases, that non-refoulement obligation will continue to apply to security cases. ⁽¹²⁵⁾
 
 
Refugees
 
In response to concerns expressed by the Court of Appeal in Butler v Attorney-General [1999] NZAR 205, 218-220, the new Part VIA of the Immigration Act 1987 places the refugee status determination procedures on a statutory footing. No change has been made to the system itself and it continues to comprise two tiers. The first instance decision is taken by a refugee status officer. From this decision there is a right of appeal to the Refugee Status Appeals Authority (RSAA). The decision of the RSAA is final, subject only to judicial review. ⁽¹²⁶⁾ Note, however, that review proceedings 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. ⁽¹²⁷⁾
 
The 1999 provisions make it clear that under the new procedures, only refugee issues can be determined. It is specifically provided that immigration matters are not within the functions, powers or jurisdiction of refugee status officers and the RSAA. ⁽¹²⁸⁾ This means that any issue of a humanitarian nature which arises outside the context of a decision relating to the recognition of refugee status in New Zealand is outside the jurisdiction of both refugee status officers and of the RSAA. ⁽¹²⁹⁾
 
Concentrating as they do on the refugee determination process, the new provisions do not incorporate the Refugee Convention into New Zealand domestic law notwithstanding the reproduction of the text of the 1951 Convention and 1967 Protocol in the Sixth Schedule. The only provisions of the Convention which have been incorporated into New Zealand domestic law are Articles 32 and 33 which enshrine the cornerstone non-refoulement obligation. See s 129X. It is noteworthy that the non-refoulement obligation as transcribed into this section applies not only to persons who are recognized as refugees in New Zealand, but also to refugee status claimants. This is a result of the fact that the refugee status determination process is declaratory, not constitutive. ⁽¹³⁰⁾ This necessarily requires the presumptive application of certain provisions of the Convention to refugee claimants. ⁽¹³¹⁾
 
While the Refugee Convention has not, with the one exception relating to the non-refoulement obligation, been directly incorporated into New Zealand domestic law, the 1999 Amendment Act expressly provides that in carrying out their functions under the new Part VIA, refugee status officers and the RSAA are to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention. ⁽¹³²⁾
 
The new provisions must be read with the Immigration (Refugee Processing) Regulations 1999.
 
First Instance Determination
 
Claims to be recognized as a refugee must be determined by a refugee status officer designated as such by the chief executive of the Department of Labour. No person may be designated as a refugee status officer at any time when that person is also currently employed in considering applications for permits under the Immigration Act 1987 or in administering the removal provisions in Part II of the Act. ⁽¹³³⁾
 
Refugee status officers determine not only whether the claimant meets the inclusion clause criteria of the Refugee Convention, but also the exclusion provisions contained in Articles 1D, 1E and 1F of the Convention. ⁽¹³⁴⁾ An additional function of a refugee status officer is to determine whether the cessation provisions of Article 1C of the Convention apply to any person previously recognized as a refugee. ⁽¹³⁵⁾ Ancillary functions include the revisiting of a grant of refugee status where that grant may have been procured by fraud, forgery, false or misleading representation or concealment of relevant information with the consequential loss of refugee status either pursuant to the cessation provisions of Article 1C or the exclusion provisions of Articles 1D, 1E and 1F. ⁽¹³⁶⁾ Where these issues surface in the context of a person granted refugee status not by a refugee status officer, but by the RSAA, a refugee status officer can apply to the RSAA for a determination of the cessation or exclusion issues. ⁽¹³⁷⁾
 
It is the responsibility of the refugee claimant to establish the claim, and the claimant must ensure that all information, evidence, and submissions that the claimant wishes to have considered in support of the claim are provided to the refugee status officer before the officer makes a determination on the claim. ⁽¹³⁸⁾ The refugee status officer may seek information from any source, but is not obliged to seek any information, evidence or submissions further to that provided by the claimant. The claim can be determined on the basis of only the information, evidence and submissions provided by the claimant. ⁽¹³⁹⁾ Refugee status officers are now given specific power to require information, documents, consent (to the release of documents or information relating to the claimant), fingerprints and photographs. ⁽¹⁴⁰⁾ Where the claimant is in New Zealand with other members of the claimant's immediate family, the claimant must disclose whether they are also seeking recognition as refugees, and, if so, whether any such claim is on different grounds. ⁽¹⁴¹⁾ The intention is that every person who seeks refugee status in New Zealand must lodge his or her own independent claim to refugee status. For the difficulties which might otherwise arise, see Garate v Refugee Status Appeals Authority [1998] NZAR 241 (Williams J).
 
The current restrictions on the lodging of a second claim to refugee status are carried over into the new provisions. That is, the subsequent claim cannot be accepted unless it can be shown that since the original determination, circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the previous claim. In any such subsequent claim, the claimant may not challenge any finding of credibility or fact made in relation to a previous claim, and the officer may rely on any such finding. ⁽¹⁴²⁾
 
Appeal
 
The Refugee Status Appeals Authority is continued and a representative of the United Nations High Commissioner for Refugees remains an ex officio member of the Authority. ⁽¹⁴³⁾ Schedule 3C contains important provisions relating to the powers of the RSAA as well as to appointment and remuneration of members of the RSAA. Significantly, the Authority is to have the powers of a Commission of Inquiry under the Commissions of Inquiry Act 1908 (except ss 11 and 12 which relate to costs). ⁽¹⁴⁴⁾ The Authority also has power to regulate its own procedure and may make such inquiries and obtain such reports (if any) as it considers necessary and is not bound by the rules of evidence but may inform itself in such manner as it thinks fit. ⁽¹⁴⁵⁾ There is also now a formal requirement that an annual report be submitted to the Minister. ⁽¹⁴⁶⁾
 
The function of the RSAA is to hear appeals from determinations by refugee status officers not to recognize a claimant as a refugee and to make determinations in relation to refugee status on applications made by refugee status officers relating to the issues of cessation and exclusion. ⁽¹⁴⁷⁾
 
In the case of a person who is detained custody, an appeal to the RSAA must be lodged within five working days from notification of the decision of the refugee status officer. For those claimants who are not in custody, the time for bringing the appeal is within 10 working days after receiving notification of the decision. ⁽¹⁴⁸⁾ The Authority does, however, have a discretion to extend the time for lodging an appeal where satisfied that special circumstances warrant such an extension. ⁽¹⁴⁹⁾
 
As is the case at first instance, it is the responsibility of an appellant to establish the claim. ⁽¹⁵⁰⁾ This has long been an established principle of the jurisprudence of the RSAA. ⁽¹⁵¹⁾ The Authority may seek information from any source but is not obliged to do so and may determine the appeal on the basis of the information, evidence and submissions provided by the appellant. ⁽¹⁵²⁾ These provisions may qualify the impact of A v Refugee Status Appeals Authority (High Court Auckland, CP310/98, 6 November 1998, Nicholson J).

The only circumstance in which the Authority may dispense with an interview of the appellant are those cases where the Authority considers that the appeal or other contention of the person affected is prima facie manifestly unfounded or clearly abusive, and the appellant or other affected person has been interviewed by a refugee status officer in the course of determining the relevant matter at first instance or, having been given an opportunity to be interviewed, failed to take that opportunity. ⁽¹⁵³⁾ The Authority may, however, determine an appeal or other matter without an interview if the appellant or other person affected fails without reasonable excuse to attend a notified interview with the Authority. ⁽¹⁵⁴⁾
 
Where the appellant is in custody the Authority has power under the Commissions of Inquiry Act 1908, s 4D to issue a summons. Where such summons is issued, the superintendent or other person in charge of the relevant penal institution or other approved premises, or other person having custody of the detained person, must produce, or allow the production of, the person as directed in the summons. ⁽¹⁵⁵⁾
 
Where the RSAA consists of more than one member on an appeal or other matter, the decision on that matter must be a majority decision. If the members are evenly divided, the matter must be determined in favour of the appellant or other person affected. ⁽¹⁵⁶⁾ Decisions of the Authority must be given in writing and include not only the reasons for the decision, but also any minority view. ⁽¹⁵⁷⁾ A decision of the Authority is final once notified to the appellant or other affected person.
 
 Confidentiality
 
There is now an express statutory obligation to maintain confidentiality as to the identity of the claimant and the particulars of his or her case. This obligation rests not only on refugee status officers and the RSAA, but also on other persons involved in the administration of the Act. ⁽¹⁵⁸⁾ Maintaining confidentiality may, in an appropriate case, require confidentiality as to the very fact or existence of a claim or case, if disclosure of its fact or existence would tend to identify the person concerned, or be likely to endanger any person. ⁽¹⁵⁹⁾ A person who without reasonable excuse contravenes the confidentiality duty or who without reasonable excuse publishes information released in contravention of the duty, commits an offence. ⁽¹⁶⁰⁾ The confidentiality obligation does not, however, prevent the disclosure of particulars in relation to a particular claimant to the extent that the claimant has, whether expressly or impliedly by word or action, waived his or her right to confidentiality. ⁽¹⁶¹⁾ This provision will no doubt prove useful to the Minister of Immigration in cases similar to the Butler and Choi cases. ⁽¹⁶²⁾ The obligation of confidentiality does not prevent the publication for research purposes by the RSAA of a decision made by it, provided that the decision is edited in such a way as to remove the name of the appellant or other affected person, and any particulars likely to lead to the identification of the appellant or person. ⁽¹⁶³⁾
 
Parallel Immigration Applications
 
From 1 October 1999, refugee status claimants who are granted a temporary permit may not, before or after expiry of the temporary permit apply for a further temporary permit or for a permit of a different type, request a special direction or bring any appeal to the Residence Appeal Authority. ⁽¹⁶⁴⁾ The only permit for which application may be made is a temporary permit to maintain lawful status in New Zealand while the refugee claim is determined. ⁽¹⁶⁵⁾ The right to appeal to the Removal Review Authority under Part II is unaffected. ⁽¹⁶⁶⁾
 

Judicial Review
 
Any review proceedings in respect of a statutory power of decision arising out of or under the Immigration Act 1987 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. ⁽¹⁶⁷⁾ The privative clause in s 10 of the principal Act which purports to bar review proceedings where a visa has been refused has been extended to apply also to limited purpose visas. ⁽¹⁶⁸⁾ However, the refusal of a limited purpose permit is expressly recognized as being susceptible to challenge by judicial review. ⁽¹⁶⁹⁾
 

Legal Aid
 
Civil legal aid is not available in respect of any proceedings involving a decision or matter under the Immigration Act 1987 to a person who is the holder of a temporary permit or a limited purpose permit, or who is unlawfully in New Zealand in terms of the Immigration Act 1987. ⁽¹⁷⁰⁾
 
However, the special position of refugees and refugee claimants has been recognized by the extension of legal aid to the first instance hearings before refugee status officers. ⁽¹⁷¹⁾ This restores the position to that which prevailed prior to the coming into force of the Legal Services Act 1991 on 1 February 1992. Under the earlier Legal Aid Act 1969, legal aid was available for both the first instance hearing before immigration officers and for the appeal hearing before the RSAA. ⁽¹⁷²⁾ The withdrawal of legal aid was a blunder which ultimately led to the massive abuse of the refugee status procedures by the unscrupulous. ⁽¹⁷³⁾
 
Legal aid is also available for any judicial review proceedings in respect of proceedings or matters arising out of decisions of refugee status officers or the RSAA. ⁽¹⁷⁴⁾ Legal aid is also available for any application to the Inspector-General of Intelligence and Security for a review of a decision by the Director of Security to make a security risk certificate. ⁽¹⁷⁵⁾
 
Legal aid is expressly not available for any appeal to the Residence Appeal Authority or to the Removal Review Authority. ⁽¹⁷⁶⁾
 

JUDICIAL DEVELOPMENTS
 
New Zealand Citizenship in the Removal Process
 
Often, but not always, the significance of New Zealand citizenship in the removal process arises in the context of children born in New Zealand to persons who are, or who later become, persons who are in New Zealand unlawfully. New Zealand citizenship is acquired by birth in New Zealand. ⁽¹⁷⁷⁾ This fact, combined with the obligation under the Convention on the Rights of the Child 1989, Article 3.1 that in all actions concerning children undertaken by administrative authorities, the best interests of the child shall be a primary consideration, has given rise to substantial difficulty in the removal process. There is an inherent tension between the interests of the New Zealand citizen child on the one hand, and the interests of New Zealand in ensuring compliance by the parent(s) with the immigration laws on the other. It is of potential significance that the Convention on the Rights of the Child has not been incorporated into New Zealand domestic law. In Tavita v Minister of Immigration [1994] 2 NZLR 256, 266 the Court of Appeal stated (obiter) that it is possible that some international obligations, such as the Convention on the Rights of the Child, may be so manifestly important that no reasonable Minister of Immigration could fail to take them into account in making decisions in respect of the child's parents. However, the question whether particular international obligations not incorporated into New Zealand domestic law by legislation are to be read into the exercise of statutory powers has been expressly left open by the Court of Appeal in Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322, 330-331; Puli'uvea v Removal Review Authority [1996] 3 NZLR 538, 541 and Rajan v Minister of Immigration [1996] 3 NZLR 543, 552.
 
In this unsatisfactory state of affairs, the New Zealand Immigration Service, the Removal Review Authority and the High Court have largely proceeded on the basis that the obiter observations in Tavita are good law and that the provisions of the Convention on the Rights of the Child are a mandatory relevant consideration in the immigration context. The litigation has been substantial and not all of the cases can be reconciled. But the following propositions appear to have emerged:
 

(a)    Humanitarian appeals under s 63B [now s 47] start from the premise that the appellant is in New Zealand unlawfully and is seeking an exemption. The stringent statutory wording, "exceptional circumstances of a humanitarian nature ... unjust or unduly harsh", imposes a stern test. In its natural usage "exceptional circumstances" sets a high threshold necessarily involving questions of fact and degree. Associated in the test is that it be "unjust or unduly harsh" to remove on that account. It is a composite test and the whole picture is to be viewed, both circumstances and effects; and as part of that whole picture, the effects on others as well as the person removed may require consideration: Patel v Removal Review Authority (Court of Appeal, Wellington, CA 180/96, 29 July 1997) at p 6;
 
(b)    While the removal of a New Zealand citizen child does not abrogate the child's rights under the Immigration Act 1987 and the New Zealand Bill of Rights Act 1990, it does not follow from that conclusion of law that the practical inability to exercise such important rights is irrelevant to the making of the judgments under s 63B. The whole picture must be considered and the effects on others may be part of that picture. Any assessment of those effects must include the degree of likelihood that other members of the family, especially New Zealand citizens, will in practical terms have to leave New Zealand. The Court of Appeal therefore answered in the negative the question whether, in making a decision under s 63B, the Removal Review Authority could treat as irrelevant the fact that a child who is a New Zealand citizen, of a parent or parents subject to a removal order, will not in practical terms be able to exercise his or her legal right to stay in New Zealand: Schier v Removal Review Authority [1999] 1 NZLR 703, 712, line 7;
 
(c)    While it is desirable, possibly inevitable, that the Removal Review Authority indicate the principles upon which it proceeds, it should not take a restrictive approach, for instance by stating rules, which prevent it from deciding each appeal on its merits, against the standard stated by Parliament and upon all relevant circumstances: Schier v Removal Review Authority [1999] 1 NZLR 703, 712 line 15 (CA).

 
Other Court Challenges to the Removal Process
 
Other aspects of the removal process, and in particular, both judicial reviews and appeals to the High Court on questions of law against decisions of the Removal Review Authority must be noted:
 
(a)    The High Court is showing impatience with meritless challenges to decisions of the Removal Review Authority. See particularly Butler v Removal Review Authority [1998] NZAR 409 (Giles J). Four observations were made at 420:

(i)    Decisions of the Authority must be considered as a whole. It is all too easy to select isolated sentences or extracts upon which to build criticisms or to seek to lay a foundation for a question of law challenge. Care must be exercised to ensure that challenges to the exercise of a discretion or as to factual findings do not become disguised as questions of law by the careful use of language. See also Manikam v Chief Executive, Department of Labour (High Court, Wellington, AP99/98, 4 March 1999, Wild J);

(ii)    It is not necessary for every single aspect of the evidence to be traversed in minute detail by the Authority in its decision;
 
(iii)    An element of common sense must be applied. There must be acceptance of the fact where an Authority such as this refers to specific documents and evidence, it can be taken that they have been carefully reviewed and assessed;
 
(iv)    The Authority is a specialist tribunal and it has acquired and developed real expertise in this specialist area. If there is an evidential basis upon which the view it reaches can be supported it is not for the court to substitute its own view.

(c)    In Schier v Removal Review Authority [1999] 1 NZLR 703, 705-706 (CA) it was held that in the context of the limited right of appeal on a question of law only conferred by s 115A, new evidence cannot be admitted in the absence of very special circumstances;
 
(d)    The pre-requisites for a valid appeal to the Removal Review Authority have been considered by the Court of Appeal on at least two occasions. In Cahayag v Removal Review Authority [1998] 2 NZLR 72 it was held that the requirement that the appeal be accompanied by the prescribed fee was mandatory. A facsimile copy of a cheque is not a recognized or accepted mode of payment. However, in Mick v Removal Review Authority [1999] NZAR 111 it was held that a telegraphic transfer is an acceptable method of payment, but a fax authorizing the amount to be withdrawn from an account is not. In Chand v Removal Review Authority (High Court Auckland, M498/99, 9 April 1999, Salmon J) the cheque was dishonoured and marked "present again". It was held that there had been no payment in time regardless of whether the cheque would have been honoured on re-presentation.
 

Residence and the Residence Appeal Authority
 
While s 18F(4)(a) of the Immigration Act 1987 empowers the Residence Appeal Authority to seek and receive such information as it thinks fit, subs (7)(b) goes on to provide that where the Authority exercises the power to seek information, any material or information that is or may be prejudicial to the appellant must be disclosed and an opportunity given to rebut or comment on the material or information. Two recent cases would suggest that this duty is not always discharged. In both Preston v Minister of Immigration [1998] NZAR 539, 564 (Giles J) and in Martin v Chief Executive of the Department of Labour (High Court Auckland, HC113/98, 4 November 1998, Cartwright J) decisions of the Authority were set aside for failing to comply with the mandatory statutory duty of disclosure.
 
Two decisions relating to the Authority's power to refer cases to the Minister under s 18D(1)(f) where there are "special circumstances" should be mentioned. The Authority has apparently articulated a test to the effect that the circumstances must be "unique, exceptional or [have] placed the appellant in a position of a special nature". ⁽¹⁷⁸⁾ This unauthorized amendment of the statutory language is a significant misdirection in law. In Joseph v Chief Executive of the Department of Labour (High Court Wellington, AP171/97, 2 March 1998, McGechan J) it was held that the phrase, and in particular the word "unique" was stronger than the statutory word "special". In Martin, Cartwright J agreed, holding that "special circumstances" does not require any added gloss. She went on to observe that the inference she had drawn was that the Authority took a very cautious approach to identifying special circumstances that might merit ministerial consideration, thereby limiting the numbers of those cases in respect of which the ministerial discretion might be exercised. She emphasized that it was not possible for the Authority to categorize the circumstances in which it may reach a determination that special circumstances might apply and held that it is not for the Authority to determine whether it should act as gatekeeper for the Minister. Special circumstances must be determined on a case by case basis. In Martin, the Authority, in its decision, had confined its discretion under s 18D(1)(f) to those occasions where having regard to special circumstances "the changing commercial and social needs in New Zealand" required different responses. Cartwright J held that in so doing, the Authority had purported to exercise a discretion which was the Minister's alone. That is, it had second-guessed the grounds on which the Minister should exercise his discretion in special circumstance cases whereas it was for the Minister in the exercise of his or her discretion to consider any factors outside the strict confines of residence policy. Cartwright J agreed with the submission that the Authority had been wrong to restrict s 18D(1)(f) to those cases that "come close to meeting the terms of the relevant category of policy".
 
As these cases illustrate, the Residence Appeal Authority, as with other decision-makers, does from time to time fall into significant error. As the arbiter of the interpretation and application of Government residence policy, the decisions of the Authority have, and are intended to have, a significant impact on the processing of all residence visa and residence permit applications. The decisions of the Authority should therefore be as widely available and accessible as the New Zealand Immigration Service Operational Manual. Yet since its creation by the Immigration Amendment Act 1991, the Authority has refused to publish its decisions, even in a format edited in such a way as to remove the name of the appellant or other affected person, and any particulars likely to lead to the identification of the appellant or person. In October 1995 abstracts of decisions of the Authority (selected by the Authority itself) began to be published in Brooker's Immigration and Refugee Digest. The full text of the decisions, however, still remained inaccessible to all except the Authority itself and the New Zealand Immigration Service. On 2 July 1999 Brooker's gave notice that publication of the Digest was to cease as the Authority could not, due to time and financial constraints, provide case summaries. The refusal of the Authority to publish its decisions makes critical examination of its jurisprudence difficult, to say the least, and insulates it from challenge. Ultimately, this detracts from the rule of law.

 
Refugees and the Refugee Status Appeals Authority
 
In relation to decisions of the RSAA (which, from its inception, have been published ⁽¹⁷⁹⁾), the High Court and Court of Appeal have focused on issues of procedural fairness and on the application of the exclusion clause contained in Article 1F(b) of the Refugee Convention.
 
Whether a Duty to Investigate
 
In A v Refugee Status Appeals Authority (High Court Auckland, CP310/98, 6 November 1998, Nicholson J) the refugee claimant alleged that he was wanted by the police in his country of origin. In support of his claim he produced copies of various court documents, including a warrant of arrest. After hearing the claimant, the RSAA doubted whether court proceedings had in fact been commenced and gave four specific reasons for this finding. In judicial review proceedings it was submitted that before the Authority could make its assessment of the documents, the Authority was under a duty to make proper inquiries as to the genuineness of the documents. It was held that bearing in the mind the Authority's specialist knowledge and function and the difficulties of obtaining authentication of some documents, a court should not find the Authority was wrong in failing to make inquiries about or investigating the authenticity of a document so as to be in breach of the principles of natural justice, unless it was clear that the Authority's failure to make inquiries or to investigate was so unreasonable and unfair that no reasonable Authority would forego the making of such further inquiry or investigation. The practicability of reliably and promptly authenticating or updating a document would be a major factor in deciding reasonableness. The result of such a stringent test will always depend upon the facts and circumstances of each particular case. On the facts, the Authority had not been in breach of the principles of natural justice in failing to make inquiry. The judgment records at length and with apparent approval, the principal factors ordinarily taken into account by the RSAA in deciding whether to exercise its discretion to request the Immigration Service to obtain information, or to carry out an investigation. Those factors are, in summary, (a) the potential for breaching the confidentiality obligations; (b) the potential that the making of an inquiry can render the refugee claimant a refugee sur place. That is the inquiry may place at risk a refugee claimant who would otherwise have no proper claim to refugee status; (c) delay; (d) practical difficulties; (e) even if an inquiry is made, the outcome may be problematical; (f) the veracity of documents or their content is often incapable of effective verification; (g) expense. This decision, however, must now be read in the light of s 129P(2), as inserted by the Immigration Amendment Act 1999.
 
Exclusion - Article 1F(b)
 
As to the issue of exclusion, Article 1F(b) excludes from the Convention a person in respect to whom there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee. The exclusion applies even if the individual has a well-founded fear of persecution for a Convention reason if returned to the country of origin.

In S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA) consideration was given to two issues. First the meaning of the phrase "serious crime". It was held at 296-297 that to classify a crime as serious requires an evaluation not only of the elements which form the crime, but also of its facts and circumstances, as well as the circumstances of the offender which are relevant for the purposes of the criminal law. The level of penalty inflicted or likely to be inflicted in those circumstances by the contracting state and probably, by the state in which the crime was committed, are relevant factors. The inquiry must be whether the crime is of sufficient gravity to justify withholding the benefits conferred by the Convention. Exclusion is directed to offending at the upper end of the scale, which is likely to attract a severe penalty, at least in the nature of imprisonment for an appreciable period of years. The second issue was whether Article 1F(b) requires a balancing exercise in which the seriousness of the crime is weighed against the gravity of the consequences of return to the country of origin. It was held at 296-297 that there is no proportionality test. Whether a crime is to be categorized as serious is to be determined by reference to the nature and details of the particular offending, and its likely penal consequences. It does not depend upon, nor does it involve, a comparative assessment of its gravity with the gravity of the perceived persecution if returned to the homeland eventuates.
 
In Garate v Refugee Status Appeals Authority [1998] NZAR 241 (Williams J) the High Court upheld a decision of the RSAA that a police officer from Peru who admitted torturing suspected members of the Sendero Luminoso was excluded from the Refugee Convention. The court approved the two principal decisions of the Authority, namely Refugee Appeal No. 1248/93 Re TP (31 July 1995) and Refugee Appeal No. 1655/93 Re MSI (23 November 1995). In particular, the test of "serious reasons for considering" was confirmed to be a lower standard of proof than the balance of probabilities, as was the principle that while membership of an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status, where an organization is principally directly to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts. Furthermore, frequent participation in such acts is unnecessary as Article 1F(a) only speaks of "a crime against humanity" in the singluar.
 
Internal Protection
 
In the past 12 months there have been no noteworthy decisions of the Refugee Status Appeals Authority touching on refugee jurisprudence. However, there are currently before the Authority several cases which raise significant issues of law. Among them is the future direction of the relocation jurisprudence. In Butler v Attorney-General [1999] NZAR 205, 217-218 the Court of appeal suggested that the jurisprudence of the RSAA may have gone too far. In this context The Michigan Guidelines on the Internal Protection Alternative (April 1999) are to be noted in that they articulate a principled approach to what has become known as the internal flight alternative or relocation principle. The Guidelines prefer an approach which emphasizes the element of internal protection. Also before the RSAA is the topic of civil war as is the impact in New Zealand of the recent decision of the House of Lords in R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 WLR 1015; [1999] 2 All ER 545 (HL).

 
Reasons
 
The Immigration Act 1987 contains a limited right to reasons. The right is limited because reasons can only be requested in those cases where there has been a refusal to grant a permit. However, this restriction can be overcome if the request for reasons is also expressed to be made under s 23 of the Official Information Act 1982 which is not so restricted. The Official Information Act provision does not, however, override those sections of the Immigration Act 1987 which allow the Minister to decline to give reasons. See for example, s 35A(2) for the standard formula employed. However, in those cases where there is a duty to give reasons, either under the Immigration Act 1987 or under the Official Information Act 1982 (or indeed under the rules of fairness), the Court of Appeal has provided a useful statement as to the content of the duty to give reasons. In Singh v Chief Executive Officer, Department of Labour [1999] NZAR 258, 262-263 there is an illuminating explanation of the rationale for requiring reasons and a helpful statement of what the law requires of the decision-maker in this context. It is not enough to simply state a conclusion in the words of the empowering statute; the reasons must be proper, adequate ones dealing with the point in contention. More specifically, a statement of reasons in the context of cases similar to that before the Court of Appeal in Singh calls for: (a) findings on material questions of fact; (b) a reference to the relevant law or legal principles; (c) the application of the law as determined to the facts as found.

 
Judicial Review - General
 
Appeals and Review
 
The statutory right of appeal to the High Court from decisions of the Residence Appeal Authority, the Removal Review Authority and the Deportation Review Tribunal conferred by ss 115, 115A and 117 are confined to questions of law only. However, independent of the right of appeal, there is the right to bring judicial review proceedings. Ordinarily, parallel appeal and judicial review proceedings should be brought contemporaneously if the statutory "question of law only" appeal does not allow all administrative law challenges to be made. It is plainly inadvisable to first exercise the right of appeal and, in the event of an unsuccessful outcome, to then bring judicial review proceedings on virtually identical grounds. This was attempted in Butler v Removal Review Authority [1998] NZAR 409 (Giles J) (the appeal) and Butler v Removal Review Authority [1999] NZAR 69 (Wild J) (the review proceedings). In the latter case, the court struck out the statement of claim as an abuse of the court's process. As the plaintiff was legally aided, no order as to costs was made, but Wild J did urge the legal aid authorities to be "vigilant in ensuring that scarce legal aid resources are not employed in attempts to re-litigate matters".
 
It was possibly cases of this kind that led to the enactment of s 146A(1) by the Immigration Amendment Act 1999 which now requires review proceedings to 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. The provision goes on to provide that where a person has both appealed against a decision of an Authority or the Deportation Review Authority under any of ss 115, 115A and 117 and also brought review proceedings in respect of that same decision, the High Court is to "endeavour to hear both matters together unless it considers it impracticable in the particular circumstances of the case to do so."
 
In Schier v Removal Review Authority [1999] 1 NZLR 703, 705-706 (CA) it was held that in the context of the limited right of appeal on a question of law only conferred by s 115A, new evidence cannot be admitted in the absence of very special circumstances.
 
Legitimate Expectation
 
The legitimate expectation doctrine has not enjoyed much success in the immigration context, particularly since Tay v Attorney-General [1992] 2 NZLR 693 (Hillyer J). See Singh v Branch Manager of New Zealand Immigration Services [1998] NZAR 97 (Potter J) and Preston v Minister of Immigration [1998] NZAR 539 (Giles J). However, Bahadur Singh v Minister of Immigration (High Court Auckland, M42/99, 28 April 1999, Tompkins J) may be noted for the acceptance by the High Court that the publication by the New Zealand Immigration Service of its policy on removals post-Tavita where New Zealand citizen children are involved (Attachment 11), did give rise to a legitimate expectation that immigration officers would have regard to the matters set out in the policy statement.

 
Torture Convention
 
As already mentioned, New Zealand is a party to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984. ⁽¹⁸⁰⁾ Under this instrument New Zealand cannot expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. ⁽¹⁸¹⁾ The protection afforded by the Convention against Torture is wider than that provided by the Refugee Convention. Whereas the non-refoulement provisions of the Refugee Convention apply only to refugees, the Convention against Torture applies to any person who, for whatever reason, is in danger of being subjected to torture if handed over to another country. Nor does the Convention against Torture permit of any exception to the non-refoulement obligation based on grounds of national security, public order or danger to the community. ⁽¹⁸²⁾ The striking impact of the Convention against Torture is illustrated by S v Refugee Status Appeals Authority [1998] 2 NZLR 291, 300 (CA). Even though S was held to be properly excluded from the Refugee Convention, this did not mean automatic expulsion from New Zealand or refoulement. New Zealand's obligations under the Convention against Torture remained to be considered.
 
New Zealand recognizes the competence of the Committee Against Torture to receive and consider communications from or on behalf of individuals who claim to be victims of a violation by a State Party of the provisions of the Convention. ⁽¹⁸³⁾ There is therefore an international remedy available following the exhaustion of domestic remedies. While decisions of the Committee Against Torture are not binding, they are nevertheless of considerable persuasive and moral force. At the present time, however, legal aid for applications to the Committee Against Torture would seem to be not available in the light of Wellington District Legal Services Committee v Tangiora [1998] 1 NZLR 129 (CA). The matter is presently before the Privy Council.

1. Eugene Bingham, "Brain-drain nobbles growth outlook", NZ Herald, May 21, 1999, front page.
2. "Population Spurt", NZ Herald, September 3, 1998, p A3.
3. New Zealand Immigration Service, Immigration Fact Pack (Issue 10, December 1998, p 4). Cf "Population spurt", NZ Herald, September 3, 1998, p A3.
4. Eg, "Australians worried", NZ Herald, October 14, 1998, p A4.
5. Eg, Yoke Har Lee, "Migrant policies hurting NZ's Asian business community", NZ Herald, August 7, 1998, p D2; David Barber, "Government rethinks migrant policy after numbers and investment slump", National Business Review, August 14, 1998, p 5; Adam Gifford, "IT immigration changes hailed", NZ Herald, November 23, 1998, p C1.
6. New Zealand Immigration Service, Immigration Fact Pack Issue 10, December 1998, p 4.
7. New Zealand Immigration Service, Immigration Fact Pack Issue 8, August 1997, p 1.
8. "Immigration - Overstayers - Improved Data Sought", 21 TCL 10 3 (24 March 1998); Haines, "International Law and Refugees in New Zealand" [1999] NZ Law Review 119, 138.
9. Letter to author from NZIS dated 29 April 1999. The number of "mismatches" on the mismatch list (a list of persons arriving in New Zealand is compared to those who have actually departed) was 64,470 as at 17 April 1999. Persons on this list may not be overstayers if, for example, they are dual citizens.
10. Residence Appeal Authority, Annual Report 1997, pp 1 & 8.
11. Residence Appeal Authority, Annual Report 1998, pp 1, 6 & 7.
12. Removal Review Authority, Annual Report 1997, p 2.
13. Ibid, pp 3, 4 & Appendix 1.
14. Removal Review Authority, Annual Report 1998, p 3 & Appendix 1.
15. Removal Review Authority, Annual Report 1997, p 4.
16. Removal Review Authority, Annual Report 1998, p 4.
17. Immigration Amendment Act 1999, s 1(2).
18. Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).
19. Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA); Puli'uvea v Removal Review Authority [1996] 3 NZLR 538 (CA).
20. Rajan v Minister of Immigration [1996] 3 NZLR 543 (CA).
21. Schier v Removal Review Authority [1999] 1 NZLR 703 (CA).
22. Martin v Chief Executive of the Department of Labour (High Court Auckland, HC113/98, 4 November 1998, Cartwright J).
23. Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J).
24. A v Refugee Status Appeals Authority (High Court Auckland, CP310/98, 6 November 1998, Nicholson J).
25. S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA); Garate v Refugee Status Appeals Authority [1998] NZAR 241 (Williams J).
26. Immigration Act 1987, ss 14 and 24.
27. Immigration Amendment Act 1999, ss 14DA, 34A, 34B, 34C, 34D, 34E, 34F.
28. Over, 1.300 Chinese students claimed refugee status in New Zealand following the June 4, 1989 Tiananmen Square massacre. Thirty two Vietnamese students have also applied for refugee status. The Department of Labour, "Immigration Briefing", September 1998, p 11, para 50.
29. Hon Max Bradford, Minister of Immigration, "Schools and Institutions Involved in Trial Chinese Student Quota", New Zealand Executive Government News Release Archive (3 October 1997).
30. Hon Max Bradford, Minister of Immigration, "Schools and Institutions Involved in Trial Chinese Student Quota", New Zealand Executive Government News Release Archive (3 October 1997).
31. Hon Wyatt Creech, Minister of Education and Hon Max Bradford, Minister of Immigration, "Chinese Student Quota Increased", New Zealand Executive Government News Release Archive (17 June 1998)
32. Hon Tuariki John Delamere, Minister of Immigration, "Three Thousand More Student Places for People's Republic of China", New Zealand Executive Government News Release Archive (15 October 1998).
33. Immigration Act 1987, ss 5(1)(c)(a), 6(1)(c)(a), 14DA, 34A to F.
34. Immigration Act 1987, s 34A as inserted by the Immigration Amendment Act 1999, s 25.
35. Immigration Act 1987,, s 14DA(2) as inserted by the Immigration Amendment Act 1999, s 13.
36. Immigration Act 1987, s 34C(1) as inserted by the Immigration Amendment Act 1999, s 25.
37. Immigration Act 1987, s 34B(1)(b) and s 34C(4) as inserted by the Immigration Amendment Act 1999, s 25.
38. Immigration Act 1987, s 34C(3) as inserted by the Immigration Amendment Act 1999, s 25.
39. Immigration Act 1987, s 34D(2)(a) and (b) as inserted by the Immigration Amendment Act 1999, s 25.
40. Immigration Act 1987, s 34D(2)(c) and 34F(a) as inserted by the Immigration Amendment Act 1999, s 25.
41. Immigration Act 1987, s 9A(3) as inserted by the Immigration Amendment Act 1999, s 8.
42. Legal Services Act 1991, s 28(3)(3) and s 53(5).
43. Ibid, s 28(3).
44. See the heading "Bonds" below.
45. The mismatch (overstayer) numbers for the year ended 30 July 1997 provided by the New Zealand Immigration Service to the author, show that the ranking of these countries, and the percentage their citizens comprise "mismatches" are as follows: Samoa 21%; Tonga 13%; Great Britain 10%; USA 9%; Thailand 3%; Fiji 3%; Japan 3%; Korea 3%; India 3%.
46. Hon Max Bradford, Minister of Immigration, "New Transit Visa Arrangements", New Zealand Government Executive News Release Archive (30 June 1998); Hon Max Bradford, Minister of Immigration, "Transit Visas to Prevent Abuse", New Zealand Government Executive News Release Archive (7 August 1998).
47. Immigration (Transit Visas) Regulations 1998 (SR 1998/164). These Regulations added citizens of Colombia, Ecuador, countries that were part of the former Soviet Union, and the majority of countries in the African continent to the list of persons who require transit visas. They also added Niue, Tokelau and the Marshall Islands to the list of routes for which transit visas are required.
48. Immigration Amendment Regulations (No. 4) 1998 (SR 1998/320) Reg 2(b); Immigration (Transit Visas) Amendment Regulations (No. 2) 1998 (SR 1998/321), Reg 2.
49. For an account of the violence see Human Rights Watch, Indonesia: The Damaging Debate on Rapes of Ethnic Chinese Women (September 1998) and Susan Berfield & Dewi Loveard, "Ten Days that Shook Indonesia", Asia Week (July 24, 1998) 30-41.
50. Hon Tuariki John Delamere, Minister of Immigration, "Indonesian Nationals Require Visas to Enter New Zealand", New Zealand Government Executive News Release Archive (21 October 1998).
51. Immigration (Transit Visas) Regulations 1999 (SR 1999/172).
52. Hon Tuariki John Delamere, Minister of Immigration, "NZIS moves swiftly on Kosovo refugee aid", New Zealand Government Executive News Release Archive (13 April 1999). As at 10 July 1999, only some 160 of the anticipated 600 individuals had arrived in New Zealand. See Warren Gamble, "Some Kosovo refugees quitting a second time", Weekend Herald, July 10-11, 1999, p A13; Warren Gamble & Catherine Masters, "NZ refuge better option than stripped home", NZ Herald, July 12, 1999, p A3.
53. Immigration Act 1987, s 14E(1)(a) as inserted by the Immigration Amendment Act 1991, s 8.
54. Ibid, s 14E(1)(a) as amended by the Immigration Amendment Act 1999, s 14(1).
55. Immigration Act, s 14E(2B) as amended by the Immigration Amendment Act 1999, s 14(3).
56. Immigration Act, s 14E(2)(b) as amended by the Immigration Amendment Act 1999, s 14(2).
57. Immigration Act 1987, s 148B(7) as inserted by the Immigration Amendment Act 1999, s 54.
58. Immigration Act 1987, s 148B(8) as inserted by the Immigration Amendment Act 1999, s 54.
59. Immigration Act 1987, s 148B(10) as inserted by the Immigration Amendment Act 1999, s 54.
60. Immigration Act 1987, s 148B(12) as inserted by the Immigration Amendment Act 1999, s 54.
61. Immigration Act 1987, s 14D(5) as amended by the Immigration Amendment Act 1999, s 12.
62. Immigration Amendment Act 1987, s 14DA(4) as inserted by the Immigration Amendment Act 1999, s 13.
63. Immigration Act 1987, s 27(1A) as amended inserted by the Immigration Amendment Act 1999, s 21.
64. Immigration Act 1987, s 18A(3A) as amended by the Immigration Amendment Act 1999, s 15.
65. Immigration Act 1987, s 148B(14).
66. Refugee Convention, Article 33. As to the non-refoulement obligation and national security and public order, see Article 32.
67. Ministry of Foreign Affairs and Trade, New Zealand Consolidated Treaty List as at 31 December 1996 Part 1 (Multilateral Treaties) (May 1997) pp 183 and 234.
68. See further Haines, "International Law and Refugees in New Zealand" [1999] NZ Law Review 119, 130.
69. Haines, The Legal Condition of Refugees in New Zealand (Legal Research Foundation, Auckland, 1995) 30-35.
70. "Govt fears refugee boat first of many", NZ Herald, May 24, 1996; NZPA, "Chinese Boatpeople 'unlikely' to make NZ", NZ Herald, February 25, 1997, p A4; "Heading for NZ", NZ Herald, October 4, 1997, p A3; AP, "Refugees pick NZ", NZ Herald, February 24, 1999, p B3; Staff Reporter, NZPA, "Bill targets Chinese boatpeople", NZ Herald, June 16, 1999, front page.
71. For Australia, see Joint Standing Committee on Migration, Parliament of the Commonwealth of Australia, Asylum Border Control and Detention (February 1994); Australian National Audit Office, The Management of Boatpeople (1988); Greg Ansley, "Trade in people ruthless" NZ Herald, June 17, 1999, p A15; For the USA, see William Branigin, "US agents bust global smuggling ring" Guardian Weekly, November 29, 1998, p 17; "US cracks largest-ever global smuggling rings", 76 Interpreter Releases 117 (Jan 15, 1999).
72. Immigration Act 1987, s 128(7).
73. Ibid, s 63B.
74. The position in Australia is described in Crock (ed), Protection or Punishment? The Detention of Asylum-Seekers in Australia (Federation Press, 1993); Joint Standing Committee on Migration, Parliament of the Commonwealth of Australia, Asylum, Border Control and Detention (February 1994); Human Rights and Equal Opportunity Commission, Those Who've Come Across the Seas: Detention of Unauthorized Arrivals (1998).
75. Ibid, s 128(13B) as amended by the Immigration Amendment Act 1999, s 37(2).
76. Hon Tuariki John Delamere, Minister of Immigration, "Boatpeople Bill to be introduced to Parliament tonight", New Zealand Executive Government News Release Archive (15 June 1999). Staff reporter, "Bill targets Chinese boatpeople" NZ Herald, June 16, 1999, front page; John Armstrong, "Orion to scan seas for boatpeople" NZ Herald, June 17, 1999, p A3; Manying Ip, "Economic migrants are not refugees" NZ Herald, June 22, 1999, p A13; Matt Robson, "Imbalance in handling immigrants" NZ Herald, June 25, 1999, p A11.
77. Immigration Amendment Act (No. 2) 1999, s 2.
78. "Chinese boatpeople dumped in PNG", NZ Herald, July 14, 1999, p A6; see also Colin James, "Migrant repellent", Far Eastern Economic Review (July 8, 1999) p 22.
79. Hon Tuariki Delamere, Minister of Immigration, "Making New Zealand a More Attractive Destination" New Zealand Government Executive News Release Archive (12 October 1998).
80. New Zealand Immigration Service, "Business immigration changes to Government residence policy and Government immigration policy" Amendment Circular No. 99/1, 2 March 1999.
81. New Zealand Immigration Service, "Revised NZIS Operational Manual" Amendment Circular No. 99/9, 13 July 1999.
82. Immigration Act 1987, s 18A(3A) inserted by the Immigration Amendment Act 1999, s 15.
83. Immigration Act 1987, s 18A(3B) inserted by the Immigration Amendment Act 1999, s 15.
84. As inserted by the Immigration Act 1999, s 16.
85. Immigration Act 1987, s 18F(4A)(a) inserted by the Immigration Amendment Act 1999, s 16.
86. Immigration Amendment Act 1987, s 18F(4A)(b) inserted by the Immigration Amendment Act 1999, s 16.
87. Immigration Act 1987, s 22(10) as amended by the Immigration Amendment Act 1999, s 20.
88. Immigration Act 1987, s 35AB as inserted by the Immigration Amendment Act 1999, s 29.
89. Immigration Act 1987, s 34G as inserted by the Immigration Amendment Act 1999, s 26.
90. Immigration Act 1987, s 142(j) as amended by the Immigration Amendment Act 1999, s 50(4).
91. Immigration Act 1987, s 144(1) as amended by the Immigration Amendment Act 1999, s 52(1).
92. Immigration Act 1987, s 144(1)(A) as amended by the Immigration Amendment Act 1999, s 52(2).
93. Immigration Act 1987, 1s 50 and 51.
94. Immigration Act 1987, ss 50 and 64 as amended by the Immigration Amendment Act 1991, ss 23 and 31.
95. Immigration Act 1987, s 51(1)(b).
96. Immigration Act 1987, s 51(1)(c) and (d), ss 63A and 63B.
97. Letter to author from New Zealand Immigration Service dated 29 April 1999.
98. Letter to author from New Zealand Immigration Service dated 29 April 1999.
99. Letter to author from New Zealand Immigration Service dated 29 April 1999.
100. The long title of the Immigration Amendment Act 1999 states, in part, that the Act is to "improve the effectiveness of the removal regime for persons unlawfully in New Zealand by streamlining the procedures involved, so ensuring (i) A higher level of compliance with immigration laws; and ...".
101. Immigration Act 1987, s 45(1) as inserted by the Immigration Amendment Act 1999, s 34.
102. Immigration Act 1987, s 45(2) as inserted by the Immigration Amendment Act 1999, s 34.
103. Immigration Act 1987, s 45(3) as inserted by the Immigration Amendment Act 1999, s 34.
104. Immigration Act 1987, s 46 as inserted by the Immigration Amendment Act 1999, s 34.
105. Immigration Act 1987, s 47(2)(a) as inserted by the Immigration Amendment Act 1999, s 34.
106. Immigration Act 1987, s 47(2)(b) as inserted by the Immigration Amendment Act 1999, s 34.
107. Immigration Act 1987, ss 53 and 54 as inserted by the Immigration Amendment Act 1999, s 34.
108. Immigration Act 1987, s 55 as inserted by the Immigration Amendment Act 1999, s 34.
109. Immigration Act 1987, s 57 as inserted by the Immigration Amendment Act 1999, s 34.
110. Immigration Act 1987, s 47(3) as inserted by the Immigration Amendment Act 1999, s 34.
111. Immigration Act 1987, s 48 as inserted by the Immigration Amendment Act 1999, s 34.
112. Immigration Act 1987, s 47(5) as inserted by the Immigration Amendment Act 1999, s 34.
113. Immigration Act 1987, s 69(1) as inserted by the Immigration Amendment Act 1999, s 34.
114. Immigration Act 1987, s 69(2) as inserted by the Immigration Amendment Act 1999, s 34.
115. Immigration Act 1987, s 70(3) as inserted by the Immigration Amendment Act 1999, s 34.
116. These procedures are further amplified by the new Part IIIA of the Immigration Regulations 1991 (SR 1991/241) inserted by the Immigration Amendment Regulations (No. 3) 1999 (SR 1999/171).
117. Immigration Act 1987, s 114D as inserted by the Immigration Amendment Act 1999, s 35.
118. Immigration Act 1987, s 114G as inserted by the Immigration Amendment Act 1999, s 35.
119. Immigration Act 1987, s 114G(3)(c) as inserted by the Immigration Amendment Act 1999, s 35.
120. Immigration Act 1987, s 114H as inserted by the Immigration Amendment Act 1999, s 35.
121. Immigration Act 1987, s 114L as inserted by the Immigration Amendment Act 1999, s 35.
122. Immigration Act 1987, s 114K as inserted by the Immigration Amendment Act 1999, s 35.
123. Immigration Act 1987, s 114K(4)(c) as inserted by the Immigration Amendment Act 1999, s 35.
124. Immigration Act 1987, s 114P as inserted by the Immigration Amendment Act 1999, s 35.
125. See by analogy Chahal v United Kingdom (1997) 23 EHRR 413 at para 80 (ECHR); Ahmed v Austria (1997) 24 EHRR 278 at para 41 (ECHR).
126. Immigration Act 1987, s 129Q(5) as inserted by the Immigration Amendment Act 1999, s 40.
127. Immigration Act 1987, s 146A(1) as inserted by the Immigration Amendment Act 1999, s 53.
128. Immigration Act 1987, s 129W as inserted by the Immigration Amendment Act 1999, s 40.
129. Immigration Act 1987, s 129W(e) as inserted by the Immigration Amendment Act 1999, s 40.
130. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, para 28.
131. Haines, "International Law and Refugees in New Zealand" [1999] NZ Law Review 119, 130.
132. Immigration Act 1987, s 129D(1) as inserted by the Immigration Amendment Act 1999, s 40.
133. Immigration Act 1987, s 129E as inserted by the Immigration Amendment Act 1999, s 40.
134. Immigration Act 1987, s 129F as inserted by the Immigration Amendment Act 1999, s 40.
135. Immigration Act 1987, s 129L as inserted by the Immigration Amendment Act 1999, s 40.
136. Immigration Act 1987, s 129L as inserted by the Immigration Amendment Act 1999, s 40.
137. Immigration Act 1987, s 129L(1)(f) as inserted by the Immigration Amendment Act 1999, s 40.
138. Immigration Act 1987, s 129G(5) as inserted by the Immigration Amendment Act 1999, s 40.
139. Immigration Act 1987, s 129G(6) as inserted by the Immigration Amendment Act 1999, s 40.
140. Immigration Act 1987, s 129H(1) as inserted by the Immigration Amendment Act 1999, s 40.
141. Immigration Act 1987, s 129G(3) as inserted by the Immigration Amendment Act 1999, s 40.
142. Immigration Act 1987, s 129J and see the decisions of the Refugee Status Appeals Authority in Refugee Appeal No. 2245/94 Re SS (28 October 1994) 16-19; Refugee Appeal No. 70027/96 Re SMI (19 September 1996) 8; Refugee Appeal No. 70387/97 Re MSI (14 May 1997) and Refugee Appeal No. 70461/97 Re SMI (4 September 1997).
143. Immigration Act 1987, s 129N as inserted by the Immigration Amendment Act 1999, s 40.
144. Immigration Act 1987, Schedule 3C clause 7 as inserted by the Immigration Amendment Act 1999, s 40.
145. Immigration Act 1987, Schedule 3C, clauses 8 and 9 as inserted by the Immigration Amendment Act 1999, s 40.
146. Immigration Act 1987, Schedule 3C, clause 11 as inserted by the Immigration Amendment Act 1999, s 40.
147. Immigration Act 1987, s 129N(2) as inserted by the Immigration Amendment Act 1999, s 40.
148. Immigration Act 1987, s 129O(3) as inserted by the Immigration Amendment Act 1999, s 40.
149. Immigration Act 1987, s 129O(4) as inserted by the Immigration Amendment Act 1999, s 40. For the current jurisprudence of the RSAA see Refugee Appeal No. 59/91 Re R (19 May 1992); Refugee Appeal No. 46/91 Re SM (19 August 1992) and Refugee Appeal No. 81/92 Re AN (25 June 1992).
150. Immigration Act 1987, s 129P(1) as inserted by the Immigration Amendment Act 1999, s 40.
151. See Refugee Appeal No. 523/92 Re RS (17 March 1995) 17-22.
152. Immigration Act 1987, s 129P(2) as inserted by the Immigration Amendment Act 1999, s 40.
153. Immigration Act 1987, s 129P(5) as inserted by the Immigration Amendment Act 1999, s 40.
154. Immigration Act 1987, s 129P(6) as inserted by the Immigration Amendment Act 1999, s 40.
155. Immigration Act 1987, s 129P(7) as inserted by the Immigration Amendment Act 1999, s 40.
156. Immigration Act 1987, s 129Q(1) and (2) as inserted by the Immigration Amendment Act 1999, s 40.
157. Immigration Act 1987, s 129Q(3) as inserted by the Immigration Amendment Act 1999, s 40.
158. Immigration Act 1987, s 129T as inserted by the Immigration Amendment Act 1999, s 40.
159. Immigration Act 1987, s 129T(2) as inserted by the Immigration Amendment Act 1999, s 40.
160. Immigration Act 1987, s 129T(5) as inserted by the Immigration Amendment Act 1999, s 40.
161. Immigration Act 1987, s 129T(4) as inserted by the Immigration Amendment Act 1999, s 40.
162. See for example Wishart, An Irish Legacy: The Real Danny Butler Story (Howling at the Moon Productions Ltd, 1998); NZPA, "Ex-Diplomat's deportation appals lawyer" NZ Herald, May 10, 1996; Editorial, "Better late than never" NZ Herald, November 12, 1997, p A16.
163. Immigration Act 1987, s 129T(3)(e) and Schedule 3C, clause 12 as inserted by the Immigration Amendment Act 1999, s 40.
164. Immigration Act 1987, s 129U as inserted by the Immigration Amendment Act 1999, s 40.
165. Immigration Act 1987, s 129U(3) as inserted by the Immigration Amendment Act 1999, s 40.
166. Immigration Act 1987, s 129U(4) as inserted by the Immigration Amendment Act 1999, s 40.
167. Immigration Act 1987, s 146A(1) as inserted by the Immigration Amendment Act 1999, s 53 and the Judicature Act 1908, s 56CA as amended by the Immigration Amendment Act 1999, s 63.
168. Immigration Amendment Act 1999, s 9.
169. Immigration Act 1987, s 9A as inserted by the Immigration Amendment Act 1999, s 8.
170. Legal Services Act 1991, s 28(3) as amended by the Immigration Amendment Act 1999, s 64(3).
171. Legal Services Act 1991, s 19(1)(ja) as amended by the Immigration Amendment Act 1999, s 64(1).
172. See Haines, "Legal Aid Issues in the Refugee Determination Process", The Legal Condition of Refugees in New Zealand (Legal Resarch Foundation, Auckland, 1995) 39, 42.
173. See Refugee Appeal No. 70951/98 (5 August 1998) 17-24.
174. Legal Services Act 1991, s 19(1)(jb) as amended by the Immigration Amendment Act 1999, s 64.
175. Legal Services Act 1991, s 19(1)(jc) as amended by the Immigration Amendment Act 1999, s 64.
176. Legal Services Act 1991, s 19(4A) as amended by the Immigration Amendment Act 1999, s 64(2).
177. Laws NZ, Citizenship and Nationality para 10.
178. The word "apparently" is used as the Authority refuses to publish its decisions, even in an abridged format protecting the identity of the appellant.
179. Copies of all RSAA decisions are available from the Authority itself, the Davis Law Library, Faculty of Law, Auckland and the High Court Library at the High Court, Auckland. The principal decisions of the RSAA are also available in electronic format on the RefNZ web site at www.refugee.org.nz. This we b site also contains abstracts of all RSAA decisions, headnotes of High Court and Court of Appeal decisions on refugee issues, papers on New Zealand refugee law, a News page and links to other refugee law web sites.
180. New Zealand signed the Convention on 14 January 1986 and it entered into force for New Zealand on 9 January 1990. See further Ministry of Foreign Affairs and Trade, New Zealand Consolidated Treaty List as at 31 December 1996 Part I (Multilateral Treaties) (May 1997) 324.
181. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Article 3.1.
182. See by analogy Chahal v United Kingdom (1997) 23 EHRR 413 at para 80 (ECHR); Ahmed v Austria (1997) 24 EHRR 278 at para 41 (ECHR).
183. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Article 22. See further Ministry of Foreign Affairs and Trade, New Zealand Consolidated Treaty List as at 31 December 1996 Part I (Multilateral Treaties) (May 1997) p 234.