Inaugural Meeting IARLJ Australia/New Zealand Chapter - 10 March 2000
The Hon Justice Baragwanath*1 


Some themes

The need to be ready

The political dimension

The Refugee Convention

Does the Bill of Rights apply?

The common law principles

The nature of the refugee's entitlement

Note by Haines QC as to the nature of the refugee's entitlement

I Introduction

[1] Effective adjudication in the present sphere, like any other, requires a clear understanding of its factual setting.  Refugee issues demand of a judge a broader perspective than usual.  That is because refugee law presents conflict among constitutional fundamentals, contains major unresolved issues, and raises formidable practical problems on both a domestic and an international plane.  The 3rd Conference, in Ottawa, of the IARLJ exposed the clash between major public interests which provides the setting for the individual cases that judges must decide.

[2] On one side is the need to protect those who may be bona fide refugees.  Professor James C Hathaway put the point with force:

[3] On the other side is the charlatan.  The Hon Lucienne Robillard, the Minister of Citizenship and Immigration, Canada described the dilemma from her perspective: [4] Louise Fréchette, Deputy Secretary General, United Nations touched on both themes:  II Some themes
[5] For a New Zealand judge the themes within this turbulent international context include: [6] The present status of the Convention in New Zealand domestic law has not yet been considered by the Court of Appeal.
 (4)    A further problem is that, while not conferring any right to residency (because inter alia conditions in the state of origin may improve and permit return), the Convention appears verbally to confer on bona fide refugees some entitlement of presence.
Article 31 provides:
Refugees unlawfully in the country of refuge
[7] Does the maxim generalia specialibus non derogant apply, so as to require Article 31 to dominate?  III The need to be ready

[8] New Zealand has until recently been insulated by the Pacific Ocean from the massive pressures of successive waves of claimants to refugee status.  Where English newspapers headline "Record 71,000 asylum-seekers swamp system"6 last year's response to fear of floods of boat people entering New Zealand appeared short lived.  But it is unreal to assume that we can be immune from the pressures that have driven from their homes many who are sufficiently near neighbours to require the intervention of the bulk of our military forces.

[9] Nor are the issues ones that we can expect to present themselves considerately so as to give a generalist judge time to get up to speed.  M v Home Office [1994] 1 AC 377 required the making of an order by telephone (which was defied).  Benipal v Ministers of Foreign Affairs and Immigration A878/93 judgment 29 November 1985; on appeal [1988] 2 NZLR 222, imposed similar urgency; thanks to Haines (now QC) of counsel, Chilwell J, and a rather less headstrong bureaucracy, the result was more satisfactory.

IV The political dimension

[10] Immigration policy - who may live in New Zealand - is, in general, the privilege of the Executive Government who enjoy the support of a majority in Parliament.  That is the expectation of the ordinary citizen, who is unlikely to be aware of the nicer points of refugee law and practice that we are discussing. And it is, by and large, a reasonable expectation.

[11] It follows that to avoid risk of damage to public confidence very great care is required, to educate the community as to what is going on.  While the judge-made law of judicial review must always be applied with sensitivity as well as courage, it is unreal to believe that that can be done adequately in the course of a judgment on facts that frighten the community.  There is much need for public, and not least media, education.  The proceedings of this Conference may warrant publication as an educational resource.
V The Refugee Convention

[12] The Convention and the 1967 Protocol appear in the new Sixth Schedule added to the Immigration Act by the 1999 amendment.  Sir Kenneth Keith has pointed out that the substantive provisions of the 1999 amendment are not entirely clear: compare the long title (limited to determining refugee status) with s129A (referring to the Convention generally); s 129D now provides:

while s 129X goes further. It provides, rather inconsistently, [13] While s 129D requires refugee status officers and the RSAA to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention, s 129X(2) requires that when carrying out their functions in relation to a refugee or a refugee status claimant, immigration officers must have regard to the provisions of Part VIA and of the Refugee Convention.   In this way, the relevance of the Refugee Convention is taken out of Part VIA and firmly inserted (as a relevant consideration) into the balance of the Immigration Act 1987, and of course into the field of discretionary decision-making.

[14] Both the non-refoulement obligation imposed by s 129X(1) and the "have regard to" obligation imposed by s 129X(2) apply not only to a person recognised as a refugee, but also to a refugee status claimant.  This is explicit legislative recognition of the fact that the refugee definition is declaratory, not constitutive.  This principle requires, at the very least, that the non-refoulement obligation not be escaped by the simple expedient of delaying the refugee determination process until the person has been removed from the country, or denying the individual access to the process in the first place.7

[15] A new s146A provides:

And the Judicature Amendment Act 1908 is amended by the addition of a new section: So while s 129Q(5) provides: Parliament has sensibly acknowledged that such formula does not exclude judicial review but will sustain a reasonable limitation provision8.

[16] It may follow that in this immediate context9 the problems of Tavita10 and of Teoh11 12 have, in New Zealand13, receded somewhat into the mists of history.14  But the use of the term "consistent" will remind some of the hastily added s 9 of the State Owned Enterprises Act 1987 and the propulsion of the courts into determinations as to the meaning of the Treaty of Waitangi.15  Sections 129D and 129X(2) appear to do precisely the same for the Refugee Convention.
[17] That takes us into the deep water of the meaning of the Convention, touched lightly in Part VIII below.

VI Does the Bill of Rights apply?

[18] It would be imprudent to offer firm predictions in this sphere.  In a recent extradition case16 I ventured to disagree with our late and esteemed brother Temm who had rejected the application of the Bill of Rights to such cases17.  But in an even more recent refugee case Malkit Singh v Attorney-General [1999] NZCA 264 the permanent Court of Appeal has exhibited more caution, stating

[19] Its future determination of that issue will be of the very greatest importance.18

VII The common law principles

[20] The 1999 Act does not confer on the courts any appellate jurisdiction in this context.19  That is the function of the Refugee Status Appeals Authority.  The court's role is limited to judicial review.

[21] Wisely, Parliament has not attempted to direct the courts as to how the judge made principles of judicial review are to be applied in this context.20  The next question is therefore how the courts will approach that task.

[22] It is trite that the function of the Court in judicial review, as distinct from appeal, is limited to ensuring that the decision-maker whose decision is challenged operates within the law.21  But what test of intervention is it to apply?

[23] The continuum mentioned by Richardson P in Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 at 546 and Blanchard J in Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 (CA) at p 66, of the different degrees of tolerance allowed in applying Wednesbury to various classes of case, is yet to be fully argued in a refugee context.22 Where does it fit on the spectrum?

[24] What Gulliver23 might have described as the "Little Endian approach", adopting a narrow approach to review, may include that of Lord Mustill in T v Secretary of State for the Home Department [1996] AC 742, 754, focusing on the absence of any right of an alien to secure entry

[25] At the Big End there is the willingness to second guess the Executive, seen in R v Home Secretary ex p Khawaja [1984] AC 74.  That was a habeas corpus case, where there was said to have been an illegal entry into the country, and in which the human rights of the applicant were the major focus.  The House of Lords rejected an earlier decision of their own which had applied a Wednesbury hands off approach, in favour of the court's forming its own view of the facts.

[26] In the present class of case it is of course the refugee status officer (s 129E) and the Refugee Status Appeals Authority (s 129N), not the Court, whom Parliament has deputed to determine the status of the applicant.  Judges of the High Court do not in general claim the specialist qualifications and experience of the members of the Authority, or their knowledge and experience of appraising the bona fides of claimants to refugee status.  Nor have they the advantage of background knowledge from other cases of how conditions really are in a particular country.  The reasons for reluctance of appellate courts to interfere with a first instance decision even where a general appeal lies of course apply a fortiori when dealing on review with an expert's decision on matters of fact.

[27] The quality of the jurisprudence of the Authority, originally established under the prerogative, is outstanding. In another address I assembled some of the Authority's decisions, mentioning that in Adan v Home Secretary [1999] 1 AC 293 the House of Lords had preferred a decision of Haines QC to one of the Court of Appeal of England.24  More recently in R v Immigration Appeal Tribunal Appeal Tribunal ex p Shah [1999] 2 All ER 545 it has done so again, referring to:

which drew on the jurisprudence of seven states and reached a conclusion as to the meaning of "particular social group" in art 1A(2) which again it preferred to that of the English Court of Appeal.

[28] We are fortunate to have an Authority of such fire power within our system.

[29] But that is not of course to suggest that the court can simply defer to the Authority.  In R v Secretary of State for the Home Department [1999] 4 All ER 774 it was the unhappy responsibility of the Court of Appeal to declare that neither France nor Germany was a "safe" country for the purposes of the particular case. That bold and important judgment provides a classic illustration of the judicial role, which in the present class of case can all too often require the court to accept a heavy responsibility.

[30] The issues are simply just too important, both to the applicant for refugee status and to the community, for the court not to grapple hard first with the question of what standard of review should be selected, and then with its proper application.

[31] It is not to be forgotten that as well as the Refugee Convention New Zealand has acceded to the International Covenant on Civil and Political Rights.  In Tavita Lord Cooke was prepared to draw on the jurisprudence of the European Convention on Human Rights when considering the significance in domestic law of our assumption of similar obligations under the International Covenant.

[32] It follows that the judgment of the English Court of Appeal in Reg v Secretary of State for the Home Department, ex parte Turgut The Times 15 February 2000 is therefore not without its relevance to us.  There a Turkish Kurd, who had entered England illegally, and been held not to be entitled to refugee status, was nevertheless entitled to advance and have taken seriously his claim under the European Convention's language identical to that of Article 3 of the International Covenant:

[33] The case had been considered five times by the Home Secretary. The Crown contended that in considering whether the Home Secretary had erred in his appraisal of the risk to the applicant the Court should apply the conventional Wednesbury approach employed, for example, in R v Ministry of Defence ex parte Smith [1996] QB 517, 554. The Court of Appeal however held that, while a reviewing court does not adopt the role of primary fact finder, the court's obligation on an irrationality challenge in an Article 3 case was to examine the decision rigorously and subject it to the most anxious scrutiny, without paying any special deference to the Home Secretary's conclusions on the facts. [34] That, it might be thought, is a standard warranting careful consideration in the present class of case.

VIII The nature of the refugee's entitlement

[35] I propose to say little on this topic, not least because the Court of Appeal has reserved its judgment on appeal from the decision of Fisher J in E v Attorney-General M1884-SW/99 Auckland Registry 29 November 1999.

[36] In E's case Fisher J employed the technique of legitimate expectation.
[37] That had been the approach of the Divisional Court in R v Uxbridge Magistrates Court ex p Adimi [1999] 4 All ER 520, which held that on the proper construction of Article 31, past Executive practice had entailed breach of its provisions.

[38] While the UK had acceded to the Convention and protocol, and effectively adopted them by reference in the Immigration Rules made pursuant to a statute providing that "Nothing in the immigration rules...shall lay down any practice which would be contrary to the Convention", it was held that the Convention has still not become part of English domestic law.

[39] But in New Zealand there may arise an important question of how the Executive privilege to withhold a temporary permit is to be reconciled with whatever may be the entitlement of a bona fide refugee to the application of a Convention adopted by ss 129D and 129X(2). Yet s 129W provides

[40] Given the legislative adoption of Article 31, is the device of legitimate expectation adopted by Fisher J the appropriate vehicle,?  Does the legislation now warrant a mandamus to conform with its provisions? What discretions are now: [41] In T v Home Secretary, a very hard case indeed, Lord Mustill at 754 had observed that: [42] In New Zealand does that conclusion survive the enactment of ss129D and 129X(2)?

[43] Rather than attempt a view of my own I append a note helpfully prepared by Haines QC, which I reserve the right to adopt or disagree with on some other occasion.

[44] An argument on purposive construction which has been strengthened by the enactment of s 5(1) of the Interpretation Act 199926, replacing the celebrated s 5(j), is, of course, that procedures which are fair to a bona fide refugee may be seen as too advantageous to the charlatan.  The daunting task of the court includes ensuring, conformably with the legislation, a proper process to work out which class the applicant inhabits during the period of uncertainty.

[45] It is a matter of comfort that no judgment is required of me today; and that the Court of Appeal is likely to have illuminated this area of shadow by about the time of this Conference.

*Judge of the High Court of New Zealand
President of the New Zealand Law Commission
Note by Haines QC as to the nature of the refugee's entitlement

1. In Australia, the legislation is so structured that an application for refugee status is in fact an application for a permit. See Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685, 693 (von Doussa, Moore and Sackville JJ).  But in New Zealand there is no link between refugee status and immigration status.  See specifically s 129W.

2. On one view, the effect of Articles 31 and 33 is that a refugee claimant, while having no entitlement of presence, cannot be returned to the frontiers of a territory where his or her life or freedom would be threatened for a Convention reason.  The Australian view is that this does not prevent expulsion to a territory where no such threat exists.  See Thiyagarajah and the subsequent decision in Minister for Immigration and Multicultural Affairs v AI Sallal (1999) 167 ALR 175 (Heerey, Cart and TamberlinJJ).

3. In the New Zealand context the law is that a person who is in contravention of the basic premise set out in s 4 of the Immigration Act 1987 is in New Zealand unlawfully.  But that person does not, however, commit a criminal offence.  He or she is liable to be removed by way of an administrative process without the intervention of the criminal law.  Unlawful presence in New Zealand does not attract a fine or imprisonment.  Thus an argument can be made that it cannot be said in these circumstances that the refusal to issue a temporary permit (pending resolution of the refugee claim) is the imposition of a "penalty" for the purposes of Article 31(1).  In relation to a refugee claimant, it is therefore possible to interpret the Refugee Convention in a way that does not conflict with the domestic immigration legislation.  The Refugee Convention does not require that refugee claimants be granted a temporary permit.  Support is possibly available from Article 31(2) which provides:

4. There would be no need for a reference to regularisation of status if there was some express or implied obligation to grant a temporary permit.27

5. Once a person is recognised as a Convention refugee, the minimum entitlements conferred by Articles 2 to 34 follow.  None of these provisions require the asylum state to grant residence status.  As Professor Hathaway makes clear in The Law of Refugee Status (1991) at 189, the Convention conceives of refugee status as a transitory phenomenon, which expires when a refugee can either reclaim the protection of his or her own state or has secured an alternative form of enduring protection.   In his subsequent text, Reconceiving International Refugee Law (1997) at 2, Professor Hathaway makes this clear:

Seen in this context, s 129W is entirely what one would expect to find in the Immigration Act 1987.  As to the case recently argued before the Court of Appeal, one of the important issues would appear to be whether a refugee claimant has an expectation under immigration policy and under public law principles to the grant of a temporary permit while the application for refugee status has been determined.

1. I am grateful to the Rt Hon Sir Kenneth Keith and to Rodger Haines QC for various improvements to an early draft. Neither has seen the present version.
2. The Relationship between Human Rights and Refugee Law: What Refugee Law judges can contribute. In The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary proceedings of the 1998 Conference page 81.
3. Address to Conference page 39.
4. Address pages 29-30.
5. See for example Reg v Secretary of State for the Home Department, Ex parte Simms [1999] 3 WLR 328 (HL)
6. The Times 26 January 2000. See also call by English Home Secretary to overhaul the UN Convention: The Times 2 March 2000
7. Rodger Haines QC's Laws of New Zealand: Immigration will contain a comprehensive analysis.
8. See authorities cited in Taylor Judicial Review at ##3.10 and 3.13
9. but not in related ones, as later appears
10. [1994] 2 NZLR 257
11. (1995) 183 CLR 273, adopted by Newman J in R v Uxbridge Magistrates [1999] 4 All ER 520 at 539
12. See NZLC R 45 The Treaty Making Process: Reform and the role of Parliament ## 40, 88ff
13. although not in Australia or England
14. Sir Kenneth Keith however points out that the legislative provisions are not comprehensive, which would leave the way open for their continued operation.
15. See New Zealand Maori Council v Attorney-General [1987] 1 NZLR 687
16. Poon v Commissioner of Police [2000] NZAR 69
17. Callahan v Superintendent of Mt Eden Prison M648/91 Auckland Registry 22 July 1991
18. S140(4) of the Immigration Act will be relevant to that decision.
19. It is unfortunate that there is no such right of appeal, given its existence in relation to decisions of other tribunals set up by the Act. It might be thought the case is stronger for refugees.
20. The Law Commission has proposed to the Rules Committee that the substantive principles of judicial review should not be the subject of what would be a very difficult attempt at codification by an amended Judicature Amendment Act.
21. As Sir Kenneth points out, questions of law are not susceptible to different degrees of intervention.  There should be the same result on review as if there had been the right of appeal on a question of law that has not been provided.  The discussion of a range of options of intensity of review relates to Wednesbury challenge to administrative judgment.
22. cf Ports of Auckland v Auckland City Council [1999] I NZLR 601.
23. Gulliver's Travels (1776) Appletree Press pp 51 ff.
24. See Independence of the Judiciary and the Refugee Convention; New Zealand Address to Third Conference of the International Association of Refugee Law Judges, Ottawa October 1998 published on the Law Commission website
25. For reference by our Court of Appeal to the Torture Convention in the present context see S v Refugee Status Appeals Authority [1998] 2 NZLR 291. See also Garate v RSAA [1998] NZAR 258.
 (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
27. For a further discussion of Article 31 see Hathaway & Dent, Refugee Rights.' Report on a Comparative Survey (1995) pp 18-24.