1. INTRODUCTION

2. NEW LEGISLATION
Resolution 1373 (2001) and the Terrorism Suppression Act 2002
People smuggling and transnational organised crime
Regulations
Enhanced security checks in and outside New Zealand

3. CASE LAW - OVERVIEW
Refugee issues prominent

THE REFUGEE CONVENTION AS A MANDATORY RELEVANT CONSIDERATION
Detention of asylum-seekers
Bail in criminal cases
Passport charges

REFUGEE ISSUES IN THE HIGH COURT - PROCEDURAL ISSUES
RSAA - procedure
Failure to consider evidence
Expert reports
The burden of proof
Habeas corpus

REFUGEE ISSUES AND THE HIGH COURT - SUBSTANTIVE ISSUES
The meaning of “being persecuted”
Persecution and the High Court

JUDICIAL REVIEW - PROCEDURAL ISSUES
Time for commencing proceedings
Judicial review is not an appeal

4. OVERLAP BETWEEN REFUGEE CLAIMS AND HUMANITARIAN APPEALS

5. HUMANITARIAN APPEALS UNDER SECTION 47

6. APPEALS TO HIGH COURT AGAINST RRA DECISIONS

7. LEGAL AID REVISITED

8. DEPORTATION REVIEW TRIBUNAL

9. MISCELLANEOUS
Limits to reviewing decisions under section 35A
Appeal documents filed with the wrong tribunal
No duty on NZIS to provide travel document
Revocation of temporary permit
Back-door entry to Australia
New Zealand Bill of Rights Act 1990
Offences and penalties

10. RECENT DECISIONS OF THE REFUGEE STATUS APPEALS AUTHORITY
Interpreters
Burden of proof
Well-founded fear
Statelessness
Causation
Language analysis
Persecution, availing state protection, the exhaustion of domestic
remedies and human rights jurisprudence
Website developments
 

[1] At the political level the past twelve to eighteen months have been dominated by security issues and by frequent changes to immigration policy.  The security issues have led to legislation of a substantial kind, including amendments to the provisions of the Immigration Act 1987 which relate to the detention of asylum-seekers.

[2] The decision by the government in early September 2001 to admit up to 150 asylum-seekers from the Norwegian vessel the MV Tampa for processing and eventual resettlement in New Zealand preceded the terrorist attacks of September 11 in the United States of America.1  On 17 September 2001 the government announced changes to the way it would manage residence approvals.2  Effective 1 October 2001 there would be three streams for migrant approvals: Skilled/Business; Family Sponsored; and International/Humanitarian with set approvals for each group.  The total number of approvals was set at 45,000 per annum (plus or minus ten percent), to be maintained at that level for three years.  Significantly, on the all important question of the passmark, it was stated that the Minister of Immigration would no longer need to intervene to manage the passmark in the General Skills category to maintain its proportionality with other migrant categories.  It would be managed by set approvals for each migrant stream and set quarterly rather than weekly.  This proved to be a goal impossible of fulfilment.  On 26 November 2001 the Minister announced that the General Skills category passmark would increase from 24 to 25 points from 1 January 2002.3  Further adjustments were made to the General Skills category from 4 February 2002.4  Details of the “Talent Visa” announced in December 2001 were eventually revealed in April 2002.5  On 11 June 2002 the Minister announced that the passmark would increase from 25 to 28 points from 18 June 2002.6  At the same time the Minister announced that the passmark would in future be reviewed monthly and notification of any changes to the passmark would also change from twenty days’ to five days’ notice.  The reduction in the notice reflected the massive influx of applications which previous changes to the passmark had produced.7  The General Skills category passmark increased from 28 to 29 points on 9 September 20028 with a further change to the passmark being announced on 30 September 2002 bringing the passmark to 30 points as from 7 October 2002.9  In recent days the changes to the level of English proficiency required for General Skills applicants and for Business applicants became effective within a matter of hours.10  The Prime Minister is reported as saying that constant changes in immigration policy are to be expected as New Zealand transforms itself from a country which accepts all-comers who qualify back to one that picks and chooses.11  The Prime Minister recognised that the new approach comes almost full circle back to the pre-1991 approach to migrant selection which was based around occupational priority and skills shortage.  She has suggested that the changes will be ongoing rather than sudden.

[3] These developments bring into sharp focus the provisions of the Immigration Act 1987 which require the publication of immigration policy.  While s 13A requires the publication of government immigration policy generally, s 13B sets out a code for the publication of Government residence policy.  The restrictions on the kinds of policy that may constitute Government residence policy in s 13B(3) open up the possibility of a challenge to policy on the grounds of vires, as in Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102 (Baragwanath J) and Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA).  It should also be recalled that s 13B(1) requires Government residence policy to be reduced to writing and certified by the Minister of Immigration as Government residence policy.  Such policy takes effect from the date specified in the certified policy (which date may not be earlier than the date on which the Minister certifies the policy).  There is also a requirement in s 13B(2) that where the Minister has certified any policy as Government residence policy, that policy must be inserted forthwith in the Departmental manual of immigration instructions.  Given the rapidity of the changes it should also be remembered that the effect of s 13C(1) is that the decision on any residence application must be made in terms of the Government residence policy that was applicable at the time the particular application was made, that is made in the prescribed manner (ss 14B(1) and 17A(1)).  As to this see the Immigration Regulations 1999 (SR 1999/284).

[4] While the changes to residence policy raise significant issues, it has been the question of security which has led to the enactment of new legislation.

Resolution 1373 (2001) and the Terrorism Suppression Act 2002

[5] On 28 September 2001 the United Nations Security Council adopted Resolution 1373 (2001) in response to the terrorist attacks which had taken place earlier that month in the United States.  The Resolution created a binding obligation on member states to implement a series of measures deemed critical to the defeat of terrorist groups.  Ironically, at this time the Terrorism (Bombings and Financing) Bill 2001, tabled in April 2001, was then before the Foreign Affairs, Defence and Trade Committee and about to be reported back to Parliament.  In response to Resolution 1373 (2001) the Government proposed amendments to this Bill.  This led to some controversy.12  On 11 June 2002 the Prime Minister announced that a General Election would be held on Saturday 27 July 2002 and advised the Governor-General to dissolve Parliament on 18 June 2002.13  With this announcement the Bill lapsed.  In the meantime, interim regulations allowed New Zealand to meet its commitment to the UN anti-terrorism measures outlined in Resolution 1373.  See the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001 (SR 2001/351) which expired on 30 June 2002.  This date was subsequently extended to 31 December 2002 by the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Amendment Regulations 2002 (SR 2002/187).  The Terrorism Suppression Act 2002 was subsequently enacted on 9 October 2002 and came into force on 17 October 2002.14  The Immigration Act 1987 is affected in that the s 2(1) definition of “act of terrorism” has been expanded to include any act that constitutes an offence against the Maritime Crimes Act 1999 or against s 7(1) or s 8(1) of the Terrorism Suppression Act 2002.  In this way the categories of persons to whom no permit may be granted under the Immigration Act 1987 have been expanded.  See s 7(1)(e) and (f) of the Act.

People smuggling and transnational organised crime

[6] Of equal significance is the legislation enacted in June 2002 to combat trafficking in persons.  New Zealand is a party to the United Nations Convention against Transnational Organised Crime, 2000 and the two supplementary protocols, namely the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2000 and the Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000.15  The domestic law provisions required to implement the obligations contained in these instruments were introduced by the Transnational Organised Crime Bill (Bill 201) which, when passed at the third reading on 11 June 2002, was divided into six separate Acts, being the Crimes Amendment Act 2002, the Extradition Amendment Act 2002, the Immigration Amendment Act 2002, the Mutual Assistance in Criminal Matters Amendment Act 2002 and the Passports Amendment Act 2002.

[7] For a general description of the Convention and Protocols see Laws NZ, Immigration para 6.

[8] The principal obligation of a State Party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2000 is to adopt legislative and other measures to make intentional trafficking of persons a criminal offence.  However,  much of the Immigration Amendment Act 2002 is addressed not to the Convention and the Protocol, but to the question of detention of asylum-seekers.  Those provisions of the Immigration Act 2002 which do specifically address the Protocol issues in a direct way include the imposition of criminal liability on an employer who allows a person to undertake employment in the employer’s service when that person is not entitled under the Act to undertake employment.  See s 39(1A).  Note that there is a “reasonable excuse” defence in subs (1B) and (1C).  These amendments to s 39 do not, however, come into force until June 2003.  This twelve month delay is to allow time for employer and employee education on the new requirements.16

[9] It is now also illegal to exploit people not legally entitled to work.  The new s 39A is directed at sweatshops or similar unacceptable workplace practices.  It is an offence for an employer, while allowing an unlawful employee to undertake employment, to be responsible for a serious failure to pay to the employee money payable under the Holidays Act 1981; or to be in serious default under the Minimum Wage Act 1983 in respect of the employee; or to be responsible for a serious contravention of the Wages Protection Act 1983 in respect of the employee.  An unlawful employee is defined in s 39A(9) as a person whom the employer knows is not entitled under the Immigration Act 1987 to undertake employment in the employer’s service.  It is equally an offence to take an action with the intention of preventing or hindering the employee from leaving that employment, or leaving New Zealand, or from ascertaining or seeking his or her entitlements under the law of New Zealand or from disclosing to any person the circumstances of his or her employment by the employer.  Specific examples of “preventing or hindering” include taking or retaining possession or control of a person’s passport, any other travel or identity document, or travel tickets; preventing or hindering a person from having access to a telephone, using a telephone or using a telephone privately or leaving premises or leaving premises unaccompanied.  The penalty is a substantial one, namely imprisonment for a term not exceeding seven years or a fine not exceeding $100,000, or both.

[10] Four additional amendments to the Immigration Act 1987 may be noted:

(a) The Police can arrest a person who arrives in New Zealand other than at a “Customs place” and who has no intention of reporting to an immigration officer forthwith or who has not reported forthwith as required.  The person is then brought before an immigration officer who determines whether to grant a permit or to detain the person pending departure.  See s 126(6).

(b) The 72 hour period within which a police officer may detain a person who has entered unlawfully starts from the first interaction with an immigration officer, rather than on arrival.  See s 128(3). This ensures those who evade border control do not gain a benefit from such conduct and can be detained and removed under Part VI of the Act.

(c) The existing power to question a person about their immigration status is extended so it applies equally to those who enter lawfully and overstay and those who evade immigration border processing entirely.  See s 138A.

(d) Police and Customs powers of search and seizure are extended so they can be used inside the contiguous zone, which extends 24 nautical miles from the New Zealand coast.  See s 137(2A).17

Regulations

[12] The new Immigration (Transit Visas) Regulations 2002 (SR 2002/82) which came into force on 29 April 2002 revoke and replace the Immigration (Transit Visas) Regulations 1999 (SR 1999/172).

[13] The 1999 regulations required the nationals of seventy-five named countries to obtain transit visas when transiting New Zealand to or from eleven named Pacific countries.  The new 2002 regulations signal a policy shift away from naming countries the nationals of which are deemed to be border risks ie potential refugee claimants.  The new regulations now require all persons who are not exempt from the requirement to obtain a temporary visa for a short-term visit to New Zealand (as specified in Schedule 1 of the Immigration Regulations 1999) to obtain a transit visa before transiting New Zealand to or from the eleven Pacific countries.  In short, international travellers from countries which do not have visa-free status with New Zealand are required to have a transit visa for New Zealand.

[14] The new transit visa requirements are part of the government’s anti-terrorism package announced earlier this year.18  This extension of the transit visa regime has the purpose of ensuring that the stated intention of people from countries that do not have visa-free status and who pass through New Zealand on their way to other destinations, is genuine.

[15] Specifically excluded from the requirement to obtain a transit visa are those persons who already hold a New Zealand visa of another type, and the existing exemption for persons holding Australian visas who are travelling on to Australia is continued.  See Regulation 4 of the Immigration (Transit Visas) Regulations 2002.

[16] New Zealand currently has visa-waivers with fifty-three countries.  Nationals of those countries do not require a transit visa.  Transit visa applications cost NZ$90 if obtained in New Zealand, Australia or the Pacific, or NZ$120 if obtained in London or the Hague or NZ$160 from any other country.  The new regulations are valid for three years.

Enhanced security checks in and outside New Zealand

[17] Improved anti-terrorism and security measures, worth NZ$9.6 million, to strengthen immigration efforts abroad and in New Zealand, were confirmed in Budget 2002.  The measures include:

(a) Funding to implement the Advanced Passenger Processing (APP) system which will be used to identify and screen passengers bound for New Zealand, prior to them boarding an aircraft.

(b) NZ$462,000 a year to pay for 24-hour security at the Mangere Refugee Resettlement Centre.

(c) Fingerprinting people claiming refugee status after their arrival in New Zealand.  It will cost NZ$151,000 to set up in year one, and NZ$89,000 to continue operating in out years.  Presently asylum-seekers who claim refugee status at the border are already routinely finger-printed.  It is said that extending the finger-printing system to include those who claim refugee status, sometimes years after their arrival, will reduce the ability of people to claim more than once under different identities.19

3. CASE LAW - OVERVIEW

[18] A distinctive feature of the case law over the past twelve to eighteen months is the degree to which refugee issues have featured.  Fifty-eight percent of the thirty-four cases examined involved challenges to decisions affecting refugee claimants or those who, having been declined refugee status, have pursued other means of staying in New Zealand.  While the precise reasons for this may not be known, the following factors are certainly relevant:

(a) From 1 October 1999 legal aid was restricted, in effect, to holders of a residence permit.  Refugee cases were, however, excepted.  See the amendments to the Legal Services Act 1991 enacted by the Immigration Amendment Act 1999, s 64.  See now the Legal Services Act 2000, ss 7(1)(j), (k) & (l), 7(4)(f) & (g) and 10(1).  Legal aid is available to refugee claimants not only in relation to hearings before a refugee status officer and the Refugee Status Appeals Authority, but also in relation to judicial review proceedings in the High Court.

(b) The Immigration Act 1987, s 129X(2) makes the Refugee Convention and Part VIA of the Act mandatory relevant considerations for all immigration officers (cf refugee status officers) when carrying out their functions under the Act in relation to a refugee or refugee status claimant.  As a result refugee issues now permeate many immigration decisions:

129X. Prohibition on removal or deportation of refugee or refugee status claimant—

(1) No person who has been recognised as a refugee in New Zealand or is a refugee status claimant may be removed or deported from New Zealand under this Act, unless the provisions of Article 32.1 or Article 33.2 of the Refugee Convention allow the removal or deportation.

(2) In carrying out their functions under this Act in relation to a refugee or refugee status claimant, immigration officers must have regard to the provisions of this Part and of the Refugee Convention.

(c) The detention of asylum-seekers and/or their prosecution for using false documents to enter the country is more likely to occur in the post-September 11 and Bali bombing context.20

(d) As greater numbers move through the refugee and immigration process, the fact and circumstances of an unsuccessful refugee claim are more likely to surface in the context of humanitarian appeals to the Removal Review Authority and to the Deportation Review Tribunal

Detention of asylum-seekers

[19] The impact of the Refugee Convention on immigration decision-making via s 129X is graphically illustrated by the current litigation involving the detention of asylum-seekers.

[20] In Refugee Council of New Zealand Inc v Attorney-General (No. 1) [2002] NZAR 717 at [6], [7], [8], [30] - [33] and in Refugee Council of New Zealand Inc v Attorney-General (No. 2) [2002] NZAR 769 at [125], [126] & [190] Baragwanath J held that the discretionary powers of detention of refugee claimants was constrained by the necessity test contained in Article 31(2) of the Refugee Convention:

(1) The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

(2) The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

[125] ... I remain of the view that "necessary" in Article 31.2 means the minimum required, on the facts as they appear to the immigration officer:

       1) to allow the Refugee Status Branch to be able to perform their functions
       2) to avoid real risk of criminal offending
       3) to avoid real risk of absconding.

[126] But it is to be emphasised that the Refugee Status Branch is required by s129D "to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention".  It would therefore be unusual that detention, which by Article 31.2 must be limited to what is "necessary", could be "necessary" to facilitate the work of the Refugee Status Branch.

[22] The degree to which the Refugee Convention permeates decisions affecting refugee status claimants is further illustrated by the bail application in A v New Zealand Police (High Court Auckland, R90/02, 26 July 2002, Baragwanath J).  The appellant, a citizen of the People’s Republic of China, arrived in New Zealand on 19 April 2002 travelling on a false Portuguese passport.  As the irregular nature of the document was not detected, she was granted a permit.  Nine days later, on 28 April 2002, she used the passport in an attempt to leave New Zealand for the United States.  The false passport was discovered at the Customs Departure Hall.  While initially uncooperative, she subsequently made a claim for refugee status.  Her account was that she left China illegally as a stowaway in the company of an “agent” or people-smuggler who provided her with the ticket and the forged passport in exchange for money raised by her family.  She did not announce herself as a refugee promptly on arrival in New Zealand because she was using New Zealand as a staging post en route to her ultimate intended destination, the USA.  She was arrested and prosecuted under the Crimes Act 1961, s 229A(b), the essence of the charge being that with intent to defraud she used a document, namely the Portuguese passport, for the purpose of obtaining a benefit both on 19 and on 28 April 2002 and on the latter date also using a false airline ticket.  Following her arrest she was detained in Mt Eden Prison where she remained on remand following her appearance in the District Court at Manukau on the charges under the Crimes Act 1961.  On 25 June 2002 an application for bail was declined by the District Court at Manukau.  She appealed to the High Court under the Bail Act 2000.  In the High Court counsel were agreed that if her conduct was to be classified as that of a fraudster the appropriate penalty would be no more than the three month term of imprisonment already served by her on remand.  If, on the other hand, she were to be accepted as a refugee, there would be powerful grounds for the Crown to consider whether the criminal charges should be pursued.  The holdings of Baragwanath J were:

1    Were the appellant to be viewed simply in terms of criminal offending her term of imprisonment should conceivably now terminate.  It  might indeed be said that the continued detention is a result not of her criminal conduct but of her election to claim refugee status.  In that event, if there were no issue as to the appellant's immigration status it would be the duty of the Court simply to set aside her detention.  But it was apparent that the appellant's position should now be considered not only under the Bail Act 2000 but also in terms of the Immigration Act 1987, recently amended to deal more specifically with the question of detention of refugee status claimants (see para 18).

2    If the appellant ought to be detained under the Immigration Act 1987, as a refugee status claimant she was entitled to rely on the necessity test of Article 31(2) of the Refugee Convention (see para 21).

3    While the appellant did not present herself without delay to the New Zealand authorities, if it was in truth her intention to present herself without delay to the United States authorities, it would be in keeping with the policy of Article 31 to give the appellant the benefit of the necessity test (see para 23).

4    Given the sophisticated nature of the false documentation, the risk of absconding relied upon by the Crown and the matters discussed in Refugee Council of New Zealand Inc. v Attorney-General (No. 2) [2002] NZAR 769 at [124] on the premise that the criminal charges are still live; and alternatively that there are good grounds for detention of the appellant  under the Immigration Act 1987, the appropriate interim exercise of discretion was the release of the appellant from Mt Eden prison on terms that she reside at the Mangere Detention Centre pending further evidence as to her identity and other relevant factors and determination of her refugee status claim.  It would be necessary for enquiries to be made whether that course is practicable and if so what precise conditions of bail should be imposed.  The convenient course would be to invite counsel to seek agreement with the Mangere authorities and with each other upon these matters which would allow the Court to make a consent order or to resolve any remand issues at short notice (see para 24).

5    The real possibility that the appellant had already completed serving whatever sentence might have been appropriate in the event of conviction would mean that there could be no continuing justification for any form of inhibition of her freedom for the purpose of her prosecution under the Crimes Act 1961 (see para 26).

Observations:

1    Whether it was appropriate for the appellant to be detained pursuant to the Immigration Act 1987 was a very different matter.  While the point was not mentioned in argument on behalf of the appellant whose counsel had been briefed belatedly, it seemed likely that s 128(3) of the Immigration Act 1987 may prevent use of s 128 as a basis for her detention.  The point warranted careful consideration on her behalf (see para 27).

2    Similar consideration was warranted both on behalf of the appellant and also on behalf of the Crown in both its capacities - as responsible for administering both the criminal law and the immigration legislation, of the question whether an application for discharge of the criminal charges was warranted: in Uxbridge the ground on which judicial review was ordered was that these matters had not been considered as a whole (see para 28). R v Uxbridge Magistrates' Court Ex parte Adimi [2001] QB 667 referred to.

[23] Finally, there is the intriguing decision of AHK v Police [2002] NZAR 531 (William Young J) where an Iranian student arrived in New Zealand on a false French passport.  He applied for refugee status in New Zealand but was also charged with possessing a falsified passport without reasonable excuse.  At a time when his claim for refugee status was still being processed he pleaded  guilty to the charge and was sentenced to twelve months imprisonment.  He appealed against sentence.  By consent the appeal was treated as being an appeal against conviction.  It was held that if it was indeed the case that the man was a true refugee, then that might well constitute a reasonable excuse for the purpose of the Passports Act 1992, s 31(1)(f)(i).  But the refugee application had yet to be processed.  It was clear enough that the plea of guilty was on the basis of a mistake and the appeal against conviction was allowed.  A rehearing in the District Court was directed.

[24] As in previous years, little in the way of substantive refugee law was decided by the High Court in the period in question.  In the main, the focus has been on procedural issues.  Most of New Zealand’s substantive refugee law continues to be written by the Refugee Status Appeals Authority (RSAA).

RSAA - procedure

[25] In Achhido v Governor of Mt Eden Prison [2001] NZAR 585 (O’Regan J) an application for habeas corpus was dismissed and oral applications for interim declarations under s 8 of the Judicature Amendment Act 1972 were unsuccessful.  The following points may be noted:

(a) The RSAA has no obligation to arrange legal representation where the refugee claimant confirms that he wishes to proceed with the hearing, notwithstanding that he appears without a representative.

(b) The hearing before the RSAA is a de novo hearing and it is entitled to make findings at odds with the findings of the Refugee Status Branch.

(c) Where it is obvious from the decision of the RSAA that it is unanimous, the decision may be signed by one member on behalf of the Authority rather than signed by all members hearing the appeal.

(d) The RSAA does not have an obligation to give notice of a proposed adverse credibility finding in order that the refugee claimant may comment on it (Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) applied).

(e) Article 1E of the Refugee Convention is relevant only where an entitlement to refugee status in New Zealand is established.

(a) The rules of fairness are not breached by reason of the fact that only one member of the RSAA hears an appeal.

(b) The burden of proof lies on the refugee claimant.

(c) In interviewing an appellant, the RSAA is seeking to make a realistic assessment of the validity of his or her claim and this generally involves crucial issues of assessing credibility and reliability.  As with testing of evidence by cross-examination, it may be appropriate that the questioning be persistent and penetrating with indication being given of the inquisitor’s reaction to the answers.  Interviews are generally detailed and lengthy.  They should, however, be conducted fairly.

[27] In TN v Refugee Status Appeals Authority (High Court Wellington, CP212/00, 10 May 2001, Chisholm J) it was accepted that the RSAA’s failure to consider a relevant item of evidence constituted an error of law and the decision was set aside.

Expert reports

[28] In Razak v Refugee Status Appeals Authority [2002] NZAR 552 (Chisholm J) the refugee claimant tendered a brief facsimile from an academic employed at the African Studies Centre at Cambridge University stating (inter alia) that the applicant could not find safety in southern Ghana and had “an ironclad case to be granted asylum”.  It was held that the RSAA was not obliged to accept the report of a qualified expert without more.  It was fully entitled to evaluate and assess that evidence, to consider it in the context of the totality of the evidence, and to reach its own objective and reasonable assessment of it.  This was not a situation where the RSAA had rejected evidence without explaining its reasoning process.  On the face of the decision it could be seen that the Authority had weighed the evidence from the witness against all the other information legitimately before it and had reached its own conclusions in a reasoned, objective and judicial manner.

The burden of proof

[29] While in T v Refugee Status Appeals Authority [2001] NZAR 749 at [23] and [38] there is an obiter suggestion that the stipulation in the Immigration Act 1987, s 129P(1) that it is the responsibility of an applicant for refugee status to establish the claim is not a reference to a burden of proving the claim, the better view is the ratio in Jiao v Refugee Status Appeals Authority [2002] NZAR 845 (Potter J) that s 129P(1) means that the claimant bears the onus of proving his or her claim to refugee status.  The Court referred with approval to the extended discussion of this issue in Refugee Appeal No. 72668/01 [2002] NZAR 649.  To similar effect see Refugee Council of New Zealand Inc v Attorney-General (No. 2) [2002] NZAR 769 at [132] to [137] (Baragwanath J).

Habeas corpus

[30] Since the passing of the Habeas Corpus Act 2001 applications for habeas corpus must be by way of originating application and on notice.  There is no jurisdiction to make such an order on an ex parte basis: Sylva v Minister of Immigration (High Court Auckland, M764-SW02, 1 July 2002, Paterson J) at [6].

The meaning of “being persecuted”

[31] The meaning of “being persecuted” in the Refugee Convention has been discussed in the High Court only tangentially.  In contrast, the jurisprudence of the RSAA is highly developed.  The cornerstone of this jurisprudence is the human rights based approach succinctly summarised by Professor James C Hathaway in The Law of Refugee Status (Butterworths 1991) 101-105, namely that persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.  This approach has now also been approved in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495F, 501C, 512F, 517D (HL).  Whether an individual faces a risk of persecution requires identification of the serious harm faced in the country of origin and an assessment of the state’s ability and willingness to respond effectively to that risk.  Persecution is the construct of two separate but essential elements, namely risk of serious harm and failure of protection.  This can be expressed in the formula that: Persecution = Serious Harm + The Failure of State Protection: R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629, 653F (HL); Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 515H (HL); Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 at [120] (HCA) per Kirby J approving Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [112].

Persecution and the High Court

[32] The developed nature of this jurisprudence has not so far been reflected in the decisions of the New Zealand courts.  In particular, the significance of the bifurcated approach to persecution in the context of causation (as explained in Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [112]) does not appear to have been appreciated.

[33] Illustrative of this point is H v Chief Executive of the Department of Labour (High Court Wellington, AP183/00, 20 March 2001, Gendall J) where the plaintiff was unsuccessful in his appeal to the RSAA but did not challenge that decision by way of judicial review.  His immigration appeal to the Removal Review Authority was also dismissed.  The latter decision was challenged by way of an appeal to the High Court under the Immigration Act 1987, s 115A.  The issue was whether (in the context of the immigration appeal) discrimination faced by the plaintiff in obtaining employment amounted to persecution.  It was submitted that as a matter of law discrimination in employment, condoned by the state, amounted to persecution.  Gendall J held that discrimination in employment may amount to persecution but it can never be said as a matter of law that it must do so.  It is a matter of fact and degree depending upon all the circumstances.  There must be a denial in a key way of a human right.  Refugee law is concerned with actions that deny human dignity in any key way which requires an assessment of degree.  It pushes the law beyond all known boundaries to suggest that the international community is obliged to provide surrogate protection whenever a human rights breach appears likely.  The facts did not call for an extended examination of the meaning of “being persecuted” as that term is used in the Refugee Convention.  The holding is simply a response to a particular submission.

[34] In DG v Refugee Status Appeal Authority (High Court Wellington, CP213/00, 5 June 2001, Chisholm J) the RSAA had inadvertently applied a test of “sustained and systemic violation of basic rights” instead of “sustained or systemic”.  This was held to be an error of law as “sustained” and “systemic” are not used as synonyms.  However, as the error did not materially affect the RSAA’s decision, intervention by the High Court was not justified.  The Court also noted that failure of a government to protect individuals or groups does not automatically constitute persecution.  The Court also noted that past persecution is not enough to establish a claim to refugee status.  Even if past events can be construed as “serious harm” it is still necessary to consider the prospective situation.  Unless some form of serious harm can be reasonably anticipated in the future, the claim to refugee status will fail.  A remote chance of harm is insufficient to establish a well-founded fear of being persecuted.  Whether the threshold of well-foundedness has been established in any particular case will call for the exercise of judgment by the decision-maker.  The Court held that the decision of the RSAA that the chance of the outcome feared by the plaintiff eventuating was so slight it could be discounted was not inconsistent with the RSAA’s conclusion that there was a real possibility of future violence in Indonesia generally.  The latter observation was only intended as a commentary on the Indonesian situation generally.

[35] While these holdings are consistent with RSAA jurisprudence, the Authority’s leading decisions are not referred to by Chisholm J.

Time for commencing proceedings

[36] It is to be recalled that any judicial 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.  See the Immigration Act 1987, s 146A(1).21  In Achhido v Governor of Mt Eden Prison [2001] NZAR (O’Regan J) at [26] it was held that a simple assertion 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”.  Applicants must not be given an incentive to pursue their appeal and review rights until the eleventh hour, which is what the Immigration Act 1987, s 146A appears aimed at preventing.

Judicial review is not an appeal

[37] The High Court has (surprisingly) had to issue repeated warnings that judicial review is not concerned with the decision, but with the decision-making process and that judicial review is not an appeal on the facts: C v Refugee Status Appeals Authority (High Court Auckland, M1365-SW00, 4 May 2001, Nicholson J) at [22], [26] - [29]; DG v Refugee Status Appeals Authority (High Court Wellington, CP213/00, 5 June 2001, Chisholm J) at [17]; Sylva v Minister of Immigration (High Court Auckland, M764-SW02, 1 July 2002, Paterson J) at [22].  Nor is a plaintiff entitled to raise completely new matters not raised before the relevant tribunal: TN v Refugee Status Appeals Authority (High Court Wellington, CP212/00, 10 May 2001, Chisholm J) at [6].

[38] Whereas the Refugee Convention requires the establishment (in essence) of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, an appeal against the requirement to leave New Zealand (humanitarian appeal) must establish, in terms of s 47(3) of the Immigration Act 1987, “exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand”.

[39] The Removal Review Authority now frequently encounters the situation where an individual, having been unsuccessful in applying for refugee status, subsequently lodges a humanitarian appeal under s 47.  The relationship between the refugee criteria and the humanitarian criteria has been considered by the High Court and Court of Appeal, as has the weight which the Removal Review Authority may give to the decision of the Refugee Status Appeals Authority.

[40] The substantial overlap of factors relevant to refugee and humanitarian appeals was recognised by the Court of Appeal in Talukder v Removal Review Authority [2000] NZAR 194, 198 (CA).  The Court, while recognising that RSAA decisions are in no way binding on the Removal Review Authority, stated that “it was clearly reasonable” for the latter to pay regard to the RSAA’s comments and findings on substantially similar evidence affecting those humanitarian considerations within the province of the Removal Review Authority.

[41] In H v Chief Executive of the Department of Labour (High Court Wellington, AP183/00, 20 March 2001, Gendall J) at [21] it was recognised that the test in s 47 is wider than, and different to, that of determining whether refugee status exists for Convention reasons.  But the tests may well overlap, particularly where refugee status has been sought, but not granted.  Obviously, a person who has refugee status will come within the s 47 criteria, but equally obviously it does not follow that a person who is not a refugee cannot satisfy the s 47 test.  But the latter still remains a stern or high test: Rajendra Patel v Removal Review Authority [2000] NZAR 200 (CA).

[42] But a Peruvian police officer, excluded from the Refugee Convention by Article 1F(a) for having committed torture (a crime against humanity), was successful in persuading the High Court that the Removal Review Authority is nevertheless required to perform an independent and separate duty to consider the case under its own, much wider terms of reference.  On the facts, it was held that the decision of the RSAA had had an inordinate an undue influence on the mind of the Removal Review Authority and its decision was set aside: A, B & C (a family of Peru) v Chief Executive Department of Labour [2001] NZAR 981 (Durie J) at [43].  Contrast the approach taken in Xiao Yun Qiu v Removal Review Authority [2002] NZAR 430 (O’Regan J) where the Court rejected a submission that reliance by the Removal Review Authority on the RSAA decision meant that it was biased:

[24] As the RRA correctly observes, and as the Court of Appeal has also  noted, the RSAA has the advantage of seeing and hearing evidence.  Therefore its findings will be given proper weight.  That is commonsense and it is required by Talukder v Removal Review Authority [2000] NZAR 194 (CA).  The RRA held that giving proper weight to the decision of the RSAA meant that its findings would be followed unless plainly wrong or unless new evidence was available.  This is a sensible standard for the RRA to adhere to and it is analogous to the approach this Court takes in hearing appeals. [citation omitted]

[25] It should be noted that the statutory criteria which the RRA considers differs substantially from those which the RSAA must consider.  So the fact that the RRA follows the findings of the RSAA on matters determined by the RSAA does not circumscribe the RRA’s discretion, because the legal significance of findings made by the RSAA may be quite different in the context of the RRA’s jurisdiction.  I do not believe that there is anything in the RRA’s decision to indicate that it allowed its discretion to be improperly fettered by the RSAA’s decision.

... but where the honest belief alone, is put forth in submission as the reason why there are exceptional circumstances, but such belief is not well-founded as a matter of fact, then it was open to the Authority in this particular case to conclude that the s 47 test had not been made out.  That was a question of fact.  If it were otherwise the case then any appellant need only put forward a genuine and honestly held belief of possible death - but not based upon any proper objective assessment - and therefore without more satisfy the high threshold test of s 47.  That is not the law.  Section 47 requires an assessment of all the “circumstances”, involving matters of fact and degree, to see if they qualify.  Where an appellant only puts forward, as was the case here, the circumstance of subjective fear, then it was open to the Authority as a question of fact in this case, not law, to conclude that that alone in this case was not an exceptional circumstance of a humanitarian nature.

[45] The decision in Tupou v Removal Review Authority [2001] NZAR 696 (Baragwanath J) may be noted for the holding that the essential concepts of the repealed s 63B(2) of the Immigration Act 1987 now appear without material modification in s 47(3).  There is no difference in policy between these sections.

[46] Again, family considerations appear to drive many of the section 47 appeals but High Court challenges have been largely unsuccessful.

(a) In Tatvimol v Department of Labour (High Court Wellington, AP151/00, 26 February 2001, Goddard J) the Court considered the question whether an assurance of support through marriage by a New Zealand national which was subsequently reneged upon was exploitative to a degree which constituted “exceptional circumstances of a humanitarian nature” that make it “unjust or unduly harsh” for the person to be removed from New Zealand.  Goddard J was of the view that in principal the answer is “no” and on the particular facts, was satisfied that it was not.

(b) In Lomu v Chief Executive, Department of Labour (High Court Wellington, AP209/01, 28 May 2002, Ronald Young J) the RRA had not explicitly acknowledged the importance of the family in terms of the international covenants but it had correctly identified family rights as a humanitarian factor.  This was held to be sufficient and the Court accepted the RRA decision that such deprivation was not “exceptional”.  A second ground of challenge was that the RRA’s testing of the appeal against residence policy was an error of law.  Ronald Young J held that the Authority may, where appropriate, have regard to Government residence policy requirements for the grant of a residence permit when considering whether the factors exposed by the particular appellant are exceptional circumstances of a humanitarian nature.  This is the function prescribed by s 47(4) of the Act (the mere fact that a person’s circumstances are such that the person would meet any applicable Government residence policy requirements for the grant of a residence permit does not in itself constitute exceptional circumstances of a humanitarian nature).  The Court pointed out that Parliament wishes to avoid the position that those who are unlawfully in New Zealand and seek to stay in New Zealand are advantaged above those who apply for a residence permit to stay in New Zealand.  Clearly those unlawfully in New Zealand should not be advantaged.  There was therefore nothing objectionable in the way in which the RRA expressed its view of the appellant’s case, comparing it with other similar cases and with the requirements under s 47(4).

[48] Section 115A of the Immigration Act 1987 confers a right of appeal to the High Court against decisions of the Removal Review Authority.  However, such appeals are on a question of law only.  In Tupou v Removal Review Authority [2001] NZAR 696 (Baragwanath J) it was held at [23] that it is clearly Parliament’s intent, by maintaining the limitation of the appeal right to one of law, that there should be no general right of appeal on matters of fact.  In addition, it would be inconsistent with the expressed parliamentary intent for there to be so broad a right of judicial review as to be equivalent to the appeal on the facts which Parliament has excluded.  It followed that the intensity of review was either one of the Wednesbury tests, or perhaps that of a hard look.  The Court found it unnecessary, on the facts, to be more specific.

[49] In Umeano v Chief Executive, Department of Labour (High Court Auckland, AP153-SW00, 1 March 2001, Chambers J) the issue sought to be ventilated on appeal was an allegation of unjust treatment by the New Zealand Immigration Service in the way it had handled the plaintiff’s application for an extension of a permit.  This challenge was held to be misconceived as the allegations were ones that should have been raised by judicial review, not appeal.  Because precise allegations together with evidence were required to resolve the issues and because there was no provision in the procedure of the RRA for a hearing at which disputed questions of fact could be determined, it was not appropriate to reconstitute the High Court proceeding as an application for review.  Further allegations of breach of natural justice or other procedural error by the RRA could not be entertained for the same reason.

[50] Unsurprisingly, it has been held that there is no appeal right from a decision on a reconsideration of a temporary permit application under s 31(6).  That provision stipulates that the result of any reconsideration “shall be final and conclusive”.  In addition, all rights of appeal are statutory.  For the particular holding see Chidambaram v Chief Executive, Department of Labour (High Court Wellington, AP259/00, 30 August 2002, Hammond J) at [29].

[51] It is clear that refugee claimants require the assistance of competent, trained and committed lawyers.  The ill-advised withdrawal of legal aid from first instance hearings from 1 February 1992 led to the almost complete abandonment of refugee status claimants by the legal profession.22  This left the field wide open to immigration consultants, with significant adverse results.  See for example the use of templated claims and “blatantly fabricated evidence” documented in Singh v Auckland District Law Society [2002] 3 NZLR 392 (Harrison J).

[52] Legal aid was restored to the entire refugee determination process by the Immigration Amendment Act 1999, s 64, a reform cemented by the Legal Services Act 2000, s 7(1)(j), (k) & (l).

[53] However, with the restoration of legal aid the decision in Yure v Bentley (2002) 16 PRNZ 43 (Chambers J) is a cautionary tale of the need for law practitioners to observe the highest of professional standards.  Mr Yure, a Ghanaian national, applied first for refugee status.  That was declined.  He then applied for residence.  That was declined.  After his temporary work permit finally expired, steps were taken to have him removed.  He then lodged an appeal with the Removal Review Authority which dismissed the appeal.  An appeal to the High Court was subsequently discontinued.  He then applied to the Minister of Immigration for a special direction under s 130 of the Immigration Act 1987.  That application was declined.  The decision was challenged in judicial review proceedings.  Mr Yure was, of course, ineligible for legal aid in relation to these last proceedings.  Of concern to Chambers J was the fact that his wife, a dual Australian/New Zealand citizen had been joined to the proceedings as a plaintiff.  The Judge was of the view that this was inappropriate.  The review proceedings were dismissed on their merits.  On an application by the Crown for costs Chambers J at [18] expressed concern at the possibility that the wife had become a party to the proceedings solely as a means of circumventing the prohibition under s 10(1) of the Legal Services Act 2000 and at [19] expressed further concern that the Yures’ counsel may have deliberately misled the Court and the Crown as to the legal aid position (there being evidence that they were advised that Mr Yure was in receipt of legal aid).  He accordingly referred the matter to the Auckland District Law Society for investigation by it under s 98 of the Law Practitioners Act 1982 and to the Legal Services Agency for its information and consideration.  His judgment concluded at [22]:

I have written this section of the judgment for two reasons.  First, it was necessary to give the explanation for the erroneous statement in my 8 November judgment as to Mr Yure’s being legally aided.  Secondly, it is important for practitioners to realise the importance the Court places on their being completely honest in what they tell the Court and the consequences of any failure in that regard.

[54] In the context of the jurisdiction of the Deportation Review Tribunal under s 22 of the Act (appeal on humanitarian grounds against revocation of a residence permit obtained by fraud) the High Court has held that although the test under s 22(5) of whether it would be unjust or unduly harsh is disjunctive with two limbs rather than a single composite test, there is no need to separate out the two grounds and discretely consider each limb.  It is sufficient if the assessment has been made disjunctively and the DRT has objectively considered whether deportation would be unjust or unduly harsh: Ansell v Minister of Immigration [2001] NZAR 999 at [23] (Doogue J).

[55] In the context of the related (but not identical) jurisdiction of the DRT to hear appeals against the revocation of a residence permit following conviction, it has been held that the term “unjust” in s 105(1) of the Act should be given a liberal reading: Kawa v Minister of Immigration (High Court Wellington, AP241/0, 10 July 2002, Hammond J) at [29].  In the same decision a warning was given as to the scope of the record to be brought before the High Court on an appeal under s 117 on a question of law.  Hammond J pointed out that s 120 is restrictive and makes the control of what is put before the High Court very much subject to the control of the Court.  He disapproved of the practice whereby counsel themselves agree on what should be put before the Court.  Invariably “everything” before the DRT is assembled and placed before the Court, a practice he identifies as being driven by an attempt by appellants to persuade the Court that the DRT “got it wrong” on the facts.  This is precisely what the Act does not allow.  He cautioned at [25]:

For my part, I would not want it to be thought that this court will necessarily entertain the substantial preparation involved in the bringing up of factual bundles, without the provisions of the Act being strictly adhered to.  What can be appealed is only a question of law; such questions have to be carefully defined; and indeed an order can be made under s 120 only if this court is satisfied “that a proper determination of the point of law in issue so requires [the material]”.  (Italics added).

Limits to reviewing decisions under section 35A

[57] Section 35A of the Immigration Act 1987 provides the Minister with extraordinary and unusual powers of a similar type to those found in s 130 and some other sections of the Act.  However, it confers no right on any person to apply for a permit and there is no obligation on the Minister to consider any application made nor any obligation to give reasons for a decision.  The section simply provides for the Minister, of his or her own volition, to at any time grant a permit of any type.  The extraordinarily wide discretionary nature of the power conferred by s 35A reflects a clear parliamentary intention that the power is not subject to review in the usual way.  This has been judicially commented on in a number of cases, most recently in Yan Sun v Minister of Immigration [2002] NZAR 961 (Goddard J) at [6].  Therefore any allegation of unlawfulness necessarily requires cogent evidence.

Appeal documents filed with the wrong tribunal

[58] In Steinborn v Minister of Immigration [2002] 1 NZLR 639 (CA) Mr Steinborn, the holder of a residence permit, was convicted of certain offences which led to the service by the Minister of Immigration of a deportation order under s 91(1) of the Immigration Act 1987.  Intending to appeal to the DRT, Mr Steinborn sought appeal forms from the NZIS.  He was mistakenly provided with forms relating to the RRA.  The duly completed forms reached the NZIS on the last day for filing of the appeal.  They were received and forwarded to the RRA but arrived there one day late.  The question before the Court of Appeal was whether the appeal documents received by the NZIS could be treated as having been filed with the DRT and whether the appeal was in time.  At para [42] it was held that in view of the unusual circumstances, where the Immigration Service, as agent for the DRT, had sent out forms which were misleading in giving the wrong address for filing, the appeal ought to be taken as “brought” when the forms were delivered to that wrong address.

No duty on NZIS to provide travel document

[59] In Nijar v Chief Executive Department of Labour [2002] NZAR 641 (Hammond J) Mr Nijar, an Indian national, arrived in New Zealand without a passport or other acceptable travel document and applied for refugee status.  That application was declined.  A subsequent residence application based on marriage to a New Zealand citizen was not accepted by the NZIS as it required a police certificate and a full birth certificate.   Subsequently an application for a work permit was made at a time when he was without a permit.  Mr Nijar also requested that the NZIS issue a travel document so that he could leave New Zealand in order to obtain the necessary documentation in India.  The NZIS replied that Mr Nijar would have to obtain the necessary travel documents himself.  An unsuccessful appeal to the RRA was lodged.  An argument advanced by Mr Nijar in the High Court was that the NZIS had an obligation to provide him with travel documents to enable him to leave New Zealand before the service of the removal order, thereby allowing him to avoid the five year ban on re-entry.  He claimed that having admitted Mr Nijar without proof of nationality, the NZIS bore the responsibility of providing him with a travel document if there was ultimately a requirement to leave the country.  This argument was described at [41] as “simply untenable” having regard to the provisions of ss 126 and 128 of the Act.

Revocation of temporary permit

[60] Where an immigration officer revokes a temporary permit under s 32 of the Act in an airport situation, the officer is not bound to take advantage of the powers available under s 32(2) whereby the person can be processed under the turnaround provisions of s 128.  The officer has a discretion to proceed under the removal order procedures in the Act: Punji v Minister of Immigration (High Court Auckland, M566/01, 7 December 2001, Randerson J).

Back-door entry to Australia

[61] If the overseas spouse of an Australian passport holder is ineligible for residence in Australia, but does qualify for residence within New Zealand (as the spouse of a New Zealand resident), does the Australian passport holder - who has not been resident in New Zealand and who has no intention of becoming such resident - have the necessary status to enable the overseas spouse to apply for residence within New Zealand?  The subtext is that if the answer is in the affirmative, as the holder of a New Zealand residence permit, the overseas spouse thereby secures back-door entry to Australia.  The answer given in Hossain v Chief Executive of the Department of Labour (High Court Wellington, AP102/02, 21 June 2002, Doogue J) was in the affirmative.  This (surprising) holding led to an immediate change to Government residence policy.  See NZ Immigration Instructions, Amendment Circular No. 2002/08 (30 September 2002).  The definition of “New Zealand resident” in F2.5.5 and F3.5.5 has been amended to state that:

(a) Holders of Australian passports who do not hold current New Zealand residence permits or returning resident’s visas, and

(b) Holders of New Zealand residence permits and returning resident’s visas that have been granted and issued on the basis that the person is the holder of an Australian resident return visa

New Zealand Bill of Rights Act 1990

[62] The New Zealand Bill of Rights Act 1990, s 23 distinguishes between those “arrested or ... detained under any enactment”, those “arrested for an offence” and those “arrested or detained under any enactment for any offence” and “everyone deprived of liberty”.  It provides:

23. Rights of persons arrested or detained—

(1) Everyone who is arrested or who is detained under any enactment—
 

(a) Shall be informed at the time of the arrest or detention of the reason for it; and

(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

(4) Everyone who is—

(a) Arrested; or

(b) Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[64] In Zakshevsky v Minister of Immigration (High Court Auckland, M669/09, 11 June 2002, Heath J) a Russian national who had been unsuccessful in applying for refugee status had been served with a removal order and taken into custody for removal.  It was held that on the facts s 23(1)(b) had been complied with.  The balance of the provisions of s 23 applying to persons “detained under any enactment” or “deprived of liberty” were not in issue.  The Court went on to hold at [32] - [35] that s 24 of the Act (rights of persons charged) had no application to the removal process.  There was no formal charge and a short period of time (72 hours) was contemplated between service of the removal order and physical removal (Immigration Act 1987, s 59(3)).

On the question of discovery the Court held at [20] that this was not a concept known in the context of removal proceedings.

Offences and penalties

[65] In Lavea v Department of Labour (High Court Auckland, A201/02, 28 May 2002, Laurenson J) Mr Lavea appealed against sentence after pleading guilty to nine charges of breaching s 142(f) of the Immigration Act 1987 (aiding any other person to be or to remain in New Zealand unlawfully) and two charges of breaching s 142(g) (intentionally obstructing any officer under the Act).  In the District Court he had been sentenced to five months periodic detention, the DCJ having concluded that imprisonment was inappropriate.  He considered a fine and costs in the order of $9,000, but concluded that as he had been told the appellant faced payment of a civil judgment for $30,000, any fine of this nature was impracticable.  He concluded, despite the appellant’s physical difficulties, a period of five months periodic detention was appropriate.  The appeal was based on two grounds:

(a) That pressure had been brought to bear on the appellant, both by his then counsel and the Court, to plead guilty;

(b) He had a defence of compulsion with a “cultural perculiarity”.

[67] As to this submission Laurenson J held at [7] that he could not accept that the response to illegal behaviour, knowingly carried out in New Zealand, should, in principle, be diminished because it is at the behest of persons outside New Zealand seeking to benefit by such illegal conduct.  In any event, he was satisfied that the appellant had acted dishonestly in his dealings with the Department.

However given that it transpired on appeal that the appellant was not liable under any judgment for $30,000 and that his medical condition was more serious than earlier thought, the appeal was allowed, the five months’ periodic detention quashed and instead the appellant was sentenced to 100 hours community service and ordered to pay a fine of $3,500.

[68] In the period in question the Authority has delivered six significant decisions addressing the issue of interpreters, the burden of proof, the well-founded fear element, statelessness, causation, language analysis, the meaning of persecution, the availing of state protection and the exhaustion of domestic remedies as well as the need for refugee decision-makers to draw on the jurisprudence of the various supervisory bodies set up under international human rights instruments.

Interpreters

[69] Approximately 285 Thai nationals lodged baseless refugee claims as a means of enabling those involved to live and work in New Zealand in circumvention of the Immigration Act 1987.  Although each member of the group was a native speaker of the Thai language, each person insisted upon being interviewed not in Thai, but in Pali, an ancient language which is not used in Thailand for everyday communication.  In Refugee Appeal No. 72752/01 (15 November 2001) the Authority explained why it is not open to a refugee claimant to require the proceedings to be conducted in a language of the claimant’s choice.  The Authority held:

(a) Where a refugee claimant speaks no or little English, it is indisputable that procedural fairness requires the provision of a competent and impartial interpreter in a language the claimant can understand and speak.  To prevent a person who has no understanding of English from using an interpreter would be no different from denying a hearing altogether (para [10]).

(b) There is a statutory obligation on all refugee decision-makers to provide an independent interpreter at an interview where the first language of the claimant is not English.  See the Immigration (Refugee Processing) Regulations 1999 (SR 1999/285), Reg 20 (para [11]).

(c) The obligation is to provide an interpreter, not an interpreter of the refugee claimant’s choice.  Nor is the obligation to provide an interpreter in the claimant’s first language (para [12]).

(d) While the standard of interpretation should be high, it need not be one of perfection.  In determining adequacy of interpretation, a qualitative evaluation over the entire hearing should be made and should not be confined to just selective passages: A v Refugee Status Appeals Authority [2001] NZAR 348 at [32] (Nicholson J) (para [13]).

(e) The duty to arrange for the attendance of an independent interpreter at an interview where the first language of the refugee claimant is not English is not an open-ended duty.  In particular, the duty cannot be given a meaning and effect which facilitates the abuse of the refugee determination procedures.  Specially, it is not open to a refugee claimant whose first language is not English to refuse to be interviewed in his or her first language (paras [15] & [16]).

(f) Nor under international human rights instruments is the right to an interpreter an unrestricted one (paras [19] to [27]).

Burden of proof

[71] Sections 129G and 129P materially provide that “it is the responsibility of the claimant to establish the claim [to refugee status]”.  In Refugee Appeal No. 72668/01 [2002] NZAR 649 it was held that a person claiming refugee status bears the burden of establishing the elements of the claim, or in the statutory language “the responsibility to establish the claim”.  In short, the burden of proof rests on the refugee claimant.

This decision was subsequently approved in Jiao v Refugee Status Appeals Authority [2002] NZAR 845 (Potter J).

Well-founded fear

[72] From the time the Authority first sat in 1991 it has adopted and applied the decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) that a well-founded fear of being persecuted is established when there is a real chance of such persecution occurring.  This means that there may be less than a 50% chance of persecution occurring and the chance can be as low as 10%.  But the chance must be substantial as distinct from a remote chance.  See for example Refugee Appeal No. 523/92 Re RS (17 March 1995) 23-27; Refugee Appeal No. 70074/96 Re ELLM [1998] NZAR 252, 260-263 and Refugee Appeal No. 71404/99 (29 October 1999) at [23] - [40] & [62].

[73] However, in Refugee Appeal No. 72668/01 [2002] NZAR 649 the novel submission advanced was that a decision-maker should begin with the hypothesis that there is a real chance of being persecuted for a Convention reason, examine whether the facts, including “foreseeable future speculation and ... the potentialities” point to the hypothesis and, if so, examine “whether it is negated by other compelling facts”.  Such had been the approach of Einfeld J in Guo v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421, 439-442 (FC:FC) (Beaumont, Einfeld and Foster JJ).  The submission took no account of the fact that the judgment of Einfeld J had been emphatically and comprehensively rejected and condemned on appeal in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 573-577, 592 (HCA).  In the High Court of Australia the approach suggested by Einfeld J was described as “ingenious” and unsupported by the terms of the Refugee Convention or the proper approach to administrative decision-making.

[74] In affirming the use of the “real chance” phrase as best capturing and clarifying the meaning of “well-founded”, the Authority, adopting the judgment of the High Court of Australia in Guo, emphasised that in determining whether a fear of persecution is well-founded an assessment must be made as to whether or not an event might or might not occur in the future.  In this limited sense speculation is required.  But conjecture or surmise has no part to play in determining whether a fear is well-founded.  A fear is “well-founded” when there is a real substantial basis for it.  A substantial basis for a fear may exist even though there is far less than a 50 percent chance that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of being persecuted.  A fear of being persecuted is not well-founded if it is merely assumed or if it is mere speculation.

Statelessness

[75] An application for refugee status by an stateless person from Kuwait who had been expelled by Kuwait to Iraq led to an extended discussion of statelessness in Refugee Appeal No. 72635/01 (6 September 2002).  The issues are too complex to permit extended discussion here, but the conclusions on key issues may be summarised thus:

1. Stateless persons can be, but are not automatically, refugees.

2. The general rules of refugee law apply, including the need to show a prospective risk of being persecuted.  Evidence of past persecution standing alone is insufficient to satisfy Article 1A(2).

3. In the case of a stateless person, the Inclusion clause issues are to be considered in relation to the appellant’s “country of former habitual residence”.

4. A stateless person may have more than one country of former habitual residence.

5. Legal returnability is not a requirement for a state to be a country of former habitual residence, with the result that the appellant’s case should be assessed in relation to both Iraq and Kuwait.

6. The case in relation to Iraq failed because there is no credible evidence of a well-founded fear of being persecuted there.

7. The claim in relation to Kuwait failed because the appellant could not in fact be returned there.  It followed there was no well-founded fear of being persecuted there.

8. In the alternative, the case in relation to Kuwait failed because application of nationality laws based on jus sanguinis principles does not per se amount to a risk of being persecuted.

9. In the further alternative, the case in relation to Kuwait failed because even if a persecutory act, the application of jus sanguinis nationality principles by Kuwait did not give rise to a forward-looking risk.

[76] Also in Refugee Appeal No. 72635/01 (6 September 2002) the Authority addressed the all important issue of causation or the “for reasons of” component of the refugee definition.  While the Authority had previously addressed causation in the context of the bifurcated approach to persecution as well as in the civil war context, it had not addressed the standard of causation.

[77] On the question of causation and the bifurcated approach to persecution, the Authority has recognised that the “for reasons of” element can be satisfied either by the reason for the serious harm or by the reason for the failure of state protection, or by both.  In Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [112] it said:

Accepting as we do that Persecution = Serious Harm + The Failure of State Protection, the nexus between the Convention reason and the persecution can be provided either by the serious harm limb or by the failure of the state protection limb.  This means that if a refugee claimant is at real risk of serious harm at the hands of a non-state agent (eg husband, partner or other non-state agent) for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention ground, the nexus requirement is satisfied.  Conversely, if the risk of harm by the non-state agent is Convention related, but the failure of state protection is not, the nexus requirement is still satisfied.  In either case the persecution is for reason of the admitted Convention reason.  This is because “persecution” is a construct of two separate but essential elements, namely risk of serious harm and failure of protection.  Logically, if either of the two constitutive elements is “for reason of” a Convention ground, the summative construct is itself for reason of a Convention ground.  See Shah 646C-D, 648C, 653E-G and 654D.

[79] On the question of causation in the civil war context, the Authority in Refugee Appeal No. 71462/99 [2000] INLR 311 at [67] and [68] held that no special rules apply.  It said:

[67] If a refugee claimant from such a civil war is at risk of persecution because of his or her race, it is not possible to ignore that fact simply because it is a civil war situation and to require the individual to show a super-added risk, that is, in the words of Lord Lloyd, to show a fear of persecution for Convention reasons over and above (emphasis added) the “ordinary risks of clan warfare”.  Yet on our interpretation, this is precisely what the decision in Adan requires, a fact underlined by the explicit recognition in the passage taken from the judgment given by Lord Lloyd that the civil war in Somalia is “clan warfare”.  The implicit holding is that to be at risk of serious harm in a civil war because of one’s race is not enough to meet the Convention definition.

[68] If the Adan decision is to be so understood, the Authority declines to follow it.  For the reasons given earlier, the risk of persecution and the reasons for that persecution are separate elements.  And as to the latter, there can be no requirement that a person who, along with others, is at risk of persecution for a Convention reason must also show that he or she is more at risk for that Convention reason than those others.  The essential point is that once a refugee claimant shows that he or she faces a real risk of persecution “for reason of” one of the five Convention reasons, nothing more can be required.

[81] In so holding the Authority drew on The Michigan Guidelines on Nexus to a Convention Ground (2002) 23 Mich. J. Int’l L. 210 which are reproduced in the decision itself.

Language analysis

[82] A refugee claim by an eighteen-year-old Afghani national required the Authority to consider the weight to be given to language analysis.  This technique is increasingly used to assist in identifying the refugee claimant’s true country of origin.  However the language analysis is almost invariably from an anonymous person whose qualifications, experience and knowledge of the language(s) of the region in issue is unknown.  In Refugee Appeal No. 73545/02 (11 October 2002) the Authority recognised that the uncritical acceptance of all of the opinions contained in such reports has obvious dangers.  There is a need for caution.  See para [56].  On the other hand, the Authority recognised the potential benefits to be derived from language analysis.  Any information which is of potential assistance to the decision-maker in carrying out what can sometimes be the extraordinarily difficult task of assessing a claimant’s credibility is to be welcomed.  See paras [53] and [54].  It must, however, be borne in mind that the weight to be given to a language analysis, as with any expert evidence, is a matter for the decision-maker.  See Butler v Removal Review Authority [1998] NZAR 424-425 (Giles J) discussed in Refugee Appeal No. 71729/99 (22 June 2000) at para [51].  Expert reports vary in quality and integrity.  The decision-maker is not obliged to accept the report of a qualified expert without more.  The decision-maker is fully entitled to evaluate and assess the expert evidence, to consider it in the context of the totality of the evidence and to reach his or her own objective and reasoned assessment of it.  The decision then goes on to identify helpful elements of language analysis namely phonetic traits, morphology (grammar), syntax (word order), vocabulary (lexical items) and language situation in the native country.

Persecution, availing state protection, the exhaustion of domestic remedies and human rights jurisprudence

[83] Refugee Appeal Nos. 72558/01 & 72559/01 (19 November 2002) involved an interfaith marriage between an Indonesian Muslim woman and a Malaysian Hindu man.  The claim was that their right to marry and found a family was denied in both Indonesia and Malaysia.  The decision is significant on four accounts:

(a) The first point is not articulated in the decision, but is nevertheless an unarticulated premise.  That is, the issue of state protection should be addressed within the context of the persecution element and not in the analysis of well-foundedness.  Unless state protection is placed exclusively in the persecution analysis (Persecution = Serious Harm + The Failure of State Protection) the causation analysis will be jeopardised (in the bifurcated approach to persecution causation can be satisfied by either the serious harm limb or the failure of state protection limb).  In addition, it avoids redundancy.  Protection arises only once and is relevant to determining the nature of the predicament the refugee claimant faces.

(b) The decision brings together recent case law on the meaning of persecution, the availing of state protection and the exhaustion of domestic remedies.  The relationship between the Ward principle and the exhaustion of domestic remedies principle in international human rights law is acknowledged but an important proviso is noted.  In the context of the Refugee Convention the overriding imperative is to identify those in genuine need of protection.  While the exhaustion of domestic remedies may in some cases be an issue of particular significance, refugee decision-makers should, as a rule, avoid being distracted by an obsessive focus on the exhaustion issue.  Caution must be exercised.

(c) The human rights based approach to understanding persecution requires refugee decision-makers to draw on the jurisprudence of the various supervisory bodies set up under the ICCPR, the ICESCR, CEDAW, CERD and the CRC.  The decision touches on some of the issues arising.

(d) There is a discussion of Articles 17 and 23 of the ICCPR (the “right” to found a family) and some observations are made about religion and the issue of bribery.

[84] The Refugee Caselaw site <http://www.refugeecaselaw.org> hosted by the University of Michigan and edited by Professor James C Hathaway and Professor Walter Kälin has recently been substantially upgraded and contains a number of new features which facilitate the location of relevant international jurisprudence.

The Refugee Status Appeals Authority now has its own website at <http://www.nzrefugeeappeals.govt.nz>

The New Zealand Refugee Law site <http://www.refugee.org.nz> continues to be updated on a daily basis and contains the full text of all refugee decisions of both the High Court and Court of Appeal.  All leading decisions of the RSAA are also included in the database.  Recent papers on New Zealand refugee law and practice are to be found on the Reference and Comment pages.

[85] The website for the Removal Review Authority is to be found at <http://www.removalreviewauthority.govt.nz> while the website of the Residence Appeal Authority is at <http://www.residenceappealauthority.govt.nz>   The latter two websites contain selected decisions only.
 

1. Rt Hon Helen Clark, “New Zealand to admit up to 150 ‘Tampa’ asylum-seekers”, Media Statement, 1 September 2001.  As to the Tampa saga and refugee law generally, see Professor James C Hathaway, “Refugee Law is not Immigration Law”, US Committee for Refugees, World Refugee Survey 2002 38 <http://www.refugees.org/wrs2002.cfm#>

2. Hon Lianne Dalziel, “NZ immigration Programme to attract talent”, Media Statement, 17 September 2001.

3. Hon Lianne Dalziel, “General Skills category passmark adjusted”, Media Statement, 26 November 2001.

4. Hon Lianne Dalziel, “Points premium for migrants with relevant job offer”, Media Statement, 29 January 2002.

5. Hon Lianne Dalziel, “Helping employers tap into global talent”, Media Statement, 29 April 2002.

6. Hon Lianne Dalziel, “Changes to General Skills category passmark”, Media Statement, 11 June 2002.

7. See Department of Labour, Briefing to the Incoming Minister of Immigration (August 2002) at 33 and Audrey Young, “Applicants rush in as passmark given a lift”, NZ Herald, Tuesday, September 3, 2002, p A3.

8. Hon Lianne Dalziel, “Passmark change”, Media Statement, 2 September 2002.

9. Hon Lianne Dalziel, “Passmark to change in October”, Media Statement, 30 September 2002.

10. Hon Lianne Dalziel, “Changes to help migrants settle in NZ”, Media Statement, 19 November 2002.

11. Audrey Young, “Back to pick and choose”, NZ Herald, Tuesday, November 19, 2002.

12. See Treasa Dunworth, “Public International Law” [2002] NZ Law Review 255, 269-275.

13. Rt Hon Helen Clark, “PM announces election date”, Media Statement, 11 June 2002.

14. Terrorism Suppression Act Commencement Order 2002 (SR 2002/353).  Following the Bali bombings, on 1 November 2002 the government listed Jemaah Islamiyah as a terrorist organisation pursuant to the Terrorism Suppression Act 2002 s 22.  See Rt. Hon Helen Clark, “NZ list Jemaah Lslamiyah as terrorist group”, Media Statement, 1 November 2002.

15. New Zealand signed the Convention and two Protocols on 14 December 2000.  The Convention and Protocols will come into force when 40 states have deposited instruments of ratification, acceptance, approval or accession.

16. Hon Phil Goff, “Transnational Organised Crime 2nd reading”, Media Statement, 30 May 2002.

17. For the intended role of Customs in the immigration context, see Katherine Hoby, “Customs ready for terrorism”, NZ Herald, Tuesday, October 8, 2002, p A6.

18. Hon Lianne Dalziel, “Transit visas required for more countries”, Media Statement, 28 March 2002.

19. Hon Lianne Dalziel, “Enhanced security checks in and outside New Zealand”, Media Statement, 23 May 2002.

20. See for example Refugee Council of New Zealand Inc v Attorney-General (No. 1) [2002] NZAR 717 at [17] - [18]; [73] - [83] (Baragwanath J); Human Rights Foundation of New Zealand and Refugee Council of New Zealand Inc, “Freedom’s Ramparts on the Sea” - The Detention of Asylum-Seekers in New Zealand (May 2002) <http://www.refugee.org.nz/elliott.htm>

21. Some of the early case law under this provision is referred to in Rodger Haines, Winning Immigration and Refugee Cases: Recent Case Law (paper presented at ADLS CLE seminar, 26 February 2001) at p 11.

22. RPG Haines, “Legal aid issues in the refugee determination process” in The Legal Condition of Refugees in New Zealand (Legal Research Foundation Publication No. 39 1995) 39, 42.  Prior to 1 February 1992 legal aid to refugees was governed by the Legal Aid Act 1969.  Under this Act, legal aid was available both for the first instance hearing before the (then) Refugee Status Branch and for the appeal hearing before the Refugee Status Appeals Authority.  However, the Legal Services Act 1991 which came into force on 1 February 1992 changed the entire legal aid system in New Zealand for both civil and criminal cases.  The statute removed legal aid from the first level hearing before the Refugee Status Branch.