INTRODUCTION
LEGISLATIVE
DEVELOPMENTS
Border Control
Limited
Purpose Visa/Permit
Transit
Visa Provisions Expanded
Bonds
Expulsion
at the Border - Turnaround
Residence
Policy
Legislation
Miscellaneous
Revocation
Electronic
Grants
Obligation
to Inform
Disciplining
Advisers
Alien
Smuggling
Removal
Background
The
New Procedures - Two Notable Features
The
Transitional Provisions
Refugees
First
Instance Determination
Appeal
Confidentiality
Parallel
Immigration Applications
JUDICIAL
DEVELOPMENTS
New
Zealand Citizenship in the Removal Process
Other Court Challenges to the Removal Process
Residence and the Residence Appeal Authority
Refugees
and the Refugee Status Appeals Authority
Whether
a Duty to Investigate
Exclusion
- Article 1F(b)
Internal
Protection
Judicial
Review - General
Appeals
and Review
Legitimate
Expectation
INTRODUCTION
Over the past several years
New Zealand has faced an almost unchanging pattern of immigration problems:
Border
Control
Limited
Purpose Visa/Permit
The Immigration Act 1987
permitted the grant of two kinds of visas and permits (hereinafter "permit"
unless otherwise indicated by the context): residence permits and temporary
permits, the latter falling into three categories only - visitor, student
and work permits. (26) The Immigration
Amendment Act 1999 introduced a fourth category of permit, to be known
as a limited purpose permit. (27) The Explanatory
Note in the Immigration Bill explained that a limited purpose permit recognizes
that there are certain high risk markets in which the Government operates.
The limited purpose permit is intended "to open up certain high risk markets,
particularly in the area of bringing fee-paying students to New Zealand.
The permits will be available only to persons from visa-required countries,
and only for situations envisaged by regulations". Some "de-coding" of
this explanation is required. In 1992 the Chinese student policy was tightened
after a large number of PRC students in New Zealand sought refugee status
after the Tiananmen Square massacre of June 4, 1989.
(28) The policy was policy was relaxed in 1997 when a trial quota
of 400 PRC students was allowed entry. (29)
In a press release issued by the Minister of Immigration in October 1997,
it was stated that education services earned New Zealand around NZ$300
million a year in foreign exchange with the result that the Government
aimed to facilitate the entry of foreign students.
(30) On 17 June 1998 the Minister of Education and the Minister
of Immigration announced that the quota of 400 students from the PRC would
be extended to 1,000 students and tight criteria lifted from 1 July 1998.
(31) In October 1998 the Minister of Immigration, in announcing
that the PRC student quota would be increased from 1,000 places to 4,000
places each year said that the increase was expected to provide a net benefit
of about NZ$30 million in international student sales and benefit a wide
range of education providers in secondary, tertiary and English language
training institutions. At the same time the Minister emphasized that the
Government was "retaining a cap on numbers in order to manage potential
risks such as overstaying and asylum-seeking". (32)
The limited purpose permit was introduced to provide a further means of
managing that "risk".
Limited purpose permits
can be obtained for the standard purposes of visiting, working and studying.
(33) A limited purpose permit allows the holder to be in New
Zealand for an express purpose only. (34)
However, a limited purpose visa is appropriate "only if" the visa officer
identifies a risk in the particular case that the person will remain in
New Zealand beyond the expiry of his or her permit and the officer considers
that the issue of a limited purpose visa rather than a temporary visa is
necessary in the particular case to manage that risk.
(35) The limited purpose permit is granted only for such period
as is appropriate to achieve the express purpose for which the permit was
granted, (36) and while a further limited
purpose permit can be applied for, (37)
there is power to effectively revoke the permit once the purpose for which
it was granted is achieved. (38)
The principal disadvantage
of a limited purpose permit is that the holder, whether before or after
the expiry of the permit, cannot apply for a permit of a different type
while in New Zealand, nor request a special direction or a permit under
s 35A. (39) But most importantly, the holder
cannot bring any appeal under the Immigration Act 1987, whether to the
Removal Review Authority, the Residence Appeal Authority, the Deportation
Review Tribunal or to the High Court. (40)
There is, however, no privative clause in relation to limited purpose permits
with the result that the remedy of judicial review is preserved.
(41) However, legal aid is not available to the holder of a limited
purpose permit or to a person who is in New Zealand unlawfully.
(42) The restriction on the grant of legal aid does not apply
to holders of a limited purpose permit or to overstayers who have applied
for refugee status and who wish to challenge the decline of that status.
(43)
It should also be noted
that over and above the additional control facilitated by the limited purpose
permit, a visa officer can now require a bond for travellers who are marginal
in terms of their immigration risk. Such persons can be required to post
a bond which will be refunded to them once they have departed New Zealand.
(44)
It remains to be seen whether
the limited purpose permit regime will be applied to those categories of
persons who are historically most at risk of becoming overstayers, namely
citizens of Samoa, Tonga, Great Britain, the United States of America,
Thailand, Fiji, Japan, Korea and India. (45)
Transit
Visa Provisions Expanded
On 30 June 1998 the Minister
of Immigration announced that the number of countries whose citizens require
transit visas when passing through New Zealand was to increase from 24
to 70. The measure was said to be "to manage risks and to clamp down on
refugee scams". (46) The Immigration (Transit
Visas) Regulations 1998 implemented this decision.
(47) Dramatically, on 21 October 1998 citizens of Indonesia lost
their right of visa-free entry to New Zealand and found themselves in the
position of requiring even a transit visa to pass through New Zealand.
(48) These changes were made to prevent Indonesians of Chinese
ethnicity from seeking refugee status in New Zealand in the aftermath of
the violence, and in particular the anti-Chinese violence, which occurred
on May 13-15, 1998, particularly in Java. (49)
In announcing the changes, the Minister of Immigration said that there
had been over 300 refugee applications in the past four months from Indonesian
nationals. This, he said, was "a very serious trend" and that by suspending
the visa-free status for Indonesian nationals, New Zealand was better placed
to "manage the risk of people seeking refugee status" upon arrival in New
Zealand. (50) Following the massive refugee
crisis caused by the outflow of Kosovar refugees into Albania, Macedonia
and Montenegro, the New Zealand Government moved quickly to prevent the
spontaneous arrival of such refugees in New Zealand. On 1 July 1999 the
Immigration (Transit Visas) Regulations 1999 came into force.
(51) In addition to revoking and replacing the 1998 Regulations,
these Regulations added citizens of Albania, Macedonia, Yemen and Yugoslavia
to the list of persons who require transit visas. The New Zealand Government
did agree, however, to offer permanent refuge to 200 Kosovar Albanian families
with family ties in New Zealand. (52)
Little attempt has been
made to reconcile these new transit visa provisions with New Zealand's
obligations under the Refugee Convention.
Until passage of the Immigration
Amendment Act 1999, only regulations could classify persons as persons
who require transit visas. (53) The 1999
Amendment Act now allows the Minister of Immigration, by special direction
to classify a person of a type who requires a transit visa.
(54) Special directions made by the Minister concerning transit
visas must, however, be published in the Gazette and expire after
three months. (55) The 1999 Amendment Act
has also extended the "sunset clause" which originally stipulated that
transit visa regulations expired after 30 June in the year following that
in which the regulations were made, unless extended by a further regulation.
The sunset clause now operates only after a period of three calendar years
from the date on which the regulations were made.
(56)
Bonds
The Immigration Amendment
Act 1999 introduced a formal system of bonds to manage "immigration risks".
The principal provision is s 148B. Forfeiture of a bond is at the discretion
of the Minister or an immigration officer or a visa officer.
(57) The person who is eligible for the refund of a bond must
apply for the refund within 12 months of the bond becoming refundable,
or the bond is forfeited to the Crown. (58)
No interest is payable on a bond to the person who paid it. Instead, the
interest is to be applied towards the costs of administering the bond system,
and any surplus interest must be paid to the Crown Bank Account.
(59) A refund of a bond must be paid either to the person who
paid it or to a person authorized by that person to receive it.
(60)
Bonds can be imposed as
a condition to the grant of a temporary visa, (61)
a limited purpose permit visa, (62) a temporary
permit (63) and a residence permit.
(64) No bond may be imposed on any refugee status claimant for
any matter relating to refugee status, and any bond imposed upon a person
before that person became a refugee status claimant must be refunded if
the person is subsequently determined to be a refugee.
(65)
Expulsion
at the Border - Turnaround
Under the 1951 Refugee Convention,
New Zealand cannot expel or return (refouler) a refugee in any manner
whatsoever to the frontiers of territories where his or her life or freedom
would be threatened on account of his or her race, religion, nationality,
membership of a particular social group or political opinion. This obligation
does not, however, apply to a refugee in respect of whom there are reasonable
grounds for regarding him or her a danger to the security of New Zealand,
or who, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of New Zealand.
(66) There is also a discreet non-refoulement obligation in the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment 1984. Under this instrument New Zealand cannot expel, return
or extradite a person to another State where there are substantial grounds
for believing that he or she would be in danger of being subjected to torture.
New Zealand is a party to both Conventions and in addition, New Zealand
recognizes the competence of the Committee Against Torture to receive and
consider communications from or on behalf of individuals subject to its
jurisdiction who claim to be victims of a violation by a State Party of
the provisions of the Convention against Torture.
(67)
While neither Convention
has been wholly incorporated into New Zealand domestic law, Articles 32
and 33 of the Refugee Convention have been so incorporated by s 129X of
the Immigration Act 1987. It is to be noted that this statutory provision
applies not only to a person who is recognized as a refugee in New Zealand,
but also to refugee status claimants. The latter is a result of
the fact that the refugee status determination process is declaratory,
not constitutive. This necessarily requires the presumptive application
of certain provisions of the Convention to refugee claimants.
(68)
The significance of the non-refoulement
obligation in the border expulsion situation does not require elaboration.
Breaches of that obligation do, however, occur. (69)
Since at least mid-1996
there have been reports that boats carrying PRC nationals have left China
with the intention of arriving in New Zealand. (70)
The arrival in New Zealand by sea or by air of a large number of persons,
presumably without travel documents and seeking refugee status, would present
the government with considerable logistical difficulties. Such problems
have already been encountered by both Australia and the United States of
America. (71) Yet until mid-1999, persons
refused a permit at the New Zealand border could be detained for only 28
days pending summary expulsion from New Zealand.
(72) If not removed within that period, they became subject to
removal under Part II of the Immigration Act 1987. While this Part of the
Act permits detention, the procedures are not amenable to rapid turnaround
and there is a right of appeal to the Removal Review Authority.
(73) The absence of an express power to detain applicants for
refugee status while their status is being investigated was noted in D
v Minister of Immigration [1991] 2 NZLR 673, 676 (CA), but no such
power was conferred by the subsequently enacted Immigration Amendment Act
1991. The detention of asylum-seekers is a controversial issue.
(74)
Nor is such express power
contained in the Immigration Amendment Act 1999. But in provisions originally
scheduled to come into effect on 1 October 1999, the turnaround procedures
were amended to allow for the 28 day period of detention permitted by s
128(7) and (14) to be extended by a District Court Judge either for seven
days at a time or, where the person detained is a member of a group of
people who arrived in New Zealand on the same ship or aircraft, for such
longer period as the Judge thinks necessary in the circumstances "to allow
all the persons in the group concerned to be properly dealt with".
(75)
On 15 June 1999 the Minister
of Immigration announced that a vessel had left Honiara in the Solomon
Islands on the previous Saturday evening with 102 Chinese nationals aboard,
with the declared intention of landing in New Zealand.
(76) On the following day, 16 June 1999, Parliament enacted the
Immigration Amendment Act (No. 2) 1999 which had the effect of bringing
into force from 16 June 1999 the amendments to the turnaround provisions
as well ancillary sections relating to custody and those provisions which
make it an offence to wilfully aid or assist other persons to arrive in
New Zealand otherwise than in compliance with the requirements of the Immigration
Act 1987. (77) It subsequently transpired
that the vessel concerned had landed in Papua New Guinea instead.
(78)
A number of immigration policy
changes were announced by the Minister of Immigration on 12 October 1998.
(79) On 2 March 1999 the New Zealand Immigration Service announced
business immigration changes to Government residence policy and Government
immigration policy. (80) Most importantly,
however, in mid-July 1999 the re-drafted New Zealand Immigration Service
Operational Manual was released, replacing all previous statements
of Government immigration policy. (81)
All visa and permit applications lodged after 26 July 1999 will be assessed
in terms of the policy as set out in the revised manual. On 26 July 1999
the new manual was released over the Internet. It is available at no cost
at http://www.immigration.govt.nz.
Legislation
As mentioned, the requirements
which may be imposed on the grant of a residence permit now include the
posting of a bond that is refundable in whole or in part if the other requirements
imposed on the permit holder are met. (82)
Forfeiture of the bond is additional to the revocation of the permit under
s 20(1)(d) of the Act. (83)
The power of the Residence
Appeal Authority to receive evidence not provided to the visa officer or
immigration officer before the first instance decision was made has been
amended. In particular, the mandatory "shall not consider" contained in
the original s 18F(4)(b) has been replaced by the permissive "may not consider"
in the new s 18F(4)(b). (84) It must be
shown that the information or evidence existed at the time the decision
to refuse the visa or permit was made, that the appellant could not, by
the exercise of reasonable diligence, have placed that information or evidence
before the visa officer or immigration officer at the time at which the
officer made the decision on the application (cf the earlier "at
the time the application was made") and that in all the circumstances
it is fair to consider the information or evidence.
(85)
Significantly, these restrictive
criteria do not apply when the Residence Appeal Authority is considering
whether to make a recommendation under s 18D(1)(f) that the special circumstances
of the applicant are such as to warrant consideration by the Minister as
an exception as to Government residence policy. (86)
In such a case the only criteria for the reception of information or evidence
not provided at first instance is whether "it is necessary for it [the
Authority] to have the information or evidence for the purpose of considering
whether or not to make a determination under s 18D(1)(f)".
Miscellaneous
Revocation
Where a residence permit
is revoked under s 20 of the Immigration Act 1987 on the grounds of administrative
error or on the grounds that the permit was procured by fraud, forgery,
false or misleading representation, or concealment of relevant information
or because a condition imposed on the permit holder under s 18A has not
been met and the appeal to the Deportation Review Tribunal under s 22 is
unsuccessful, the person thereafter has no right to appeal to the Removal
Review Authority. (87)
Electronic
Grants
Visas and permits may now
be issued or granted electronically. (88)
Obligation
to Inform
A significant new obligation
introduced by the new legislation is the obligation to inform.
(89) Every person who applies for any type of visa, permit or
exemption under the Act has the obligation to inform an immigration officer
of any relevant fact, including any material change in circumstances that
occurs after the application is made, if that fact or change in
circumstances may affect the decision on the application or may affect
a decision to grant a permit in reliance on the visa for which the application
is made. Failure to comply with the obligation renders any visa or permit
granted subject to cancellation or revocation.
Disciplining
Advisers
It is also now an offence
for lawyers, immigration consultants and others to wilfully mislead any
person, or to act negligently or unprofessionally (including charging excessively)
while assisting that person, for financial reward, in any application for
a permit or visa or in any proceedings before the Removal Review Authority,
the Residence Appeal Authority, or the Refugee Status Appeals Authority.
(90) The penalty is imprisonment for a term not exceeding three
months or to a fine not exceeding $5,000. (91)
Alien
Smuggling
Alien smuggling has also
been criminalized. It is now an offence for a person, whether in New Zealand
or otherwise, to wilfully aid or assist any other person to arrive in New
Zealand in a manner that does not comply with s 126(1) of the Act; or to
arrive in New Zealand without holding a visa, where the person requires
a visa to travel to New Zealand; or to complete an arrival card in a manner
that the person aiding or assisting knows to be false or misleading in
any particular. The penalty is imprisonment for a term not exceeding three
months, or to a fine not exceeding $5,000 for each person in respect of
whom the offence is committed. (92)
Removal
Background
The Immigration Amendment
Act 1999 has entirely overhauled the procedures for the removal of persons
in New Zealand unlawfully. The reforms are of far reaching effect and represent
a further refinement of the system of administrative removal which was
first introduced by the principal Act in 1987, a reform which "decriminalized"
the earlier system of prosecution proceedings under the Immigration Act
1964. In their original form, the post-1987 procedures required removal
orders to be made by the District Court on the inter partes application
of an immigration officer. (93) This process
consumed an enormous amount of court time, to seeming little effect. In
1991 the Immigration Amendment Act 1991 transferred the power to issue
a removal order to immigration officers, the oversight of the District
Court being confined to the endorsing of the removal order, on the ex
parte application of the immigration officer, after service but prior
to the removal order being executed. (94)
However, even these streamlined procedures proved to be incapable of effective
enforcement:
Security
Cases
The new Part IVA of the
Act sets out special procedures in cases involving security issues.
(116) The provisions are too long and detailed to permit sensible
summary. Their effect, however, is that the Director of Security (under
the New Zealand Security Intelligence Service Act 1969) may provide a security
risk certificate to the Minister of Immigration.
(117) If the Minister makes a preliminary decision to rely on
the security risk certificate, the Minister must give notice to that effect
to the chief executive of the Department of Labour. The effect of such
ministerial notice is to suspend the processing of any application or other
matter in relation to the named individual and to require that any appeal
before the Residence Appeal Authority, the Removal Review Authority, the
Deportation Review Tribunal, the District Court or the High Court to be
suspended. Only appeals before the Refugee Status Appeals Authority are
permitted to continue. (118) The ministerial
notice also requires the detention of the named individual by the police.
(119) The person on whom a ministerial notice is served may seek
a review by the Inspector-General of Intelligence and Security of the decision
of the Director of Security to make the security risk certificate.
(120) If the Inspector-General decides that the certificate was
not properly made the person is to be released from custody and the normal
immigration procedures resume. (121) If
the certificate is confirmed or if no review is sought, the Minister has
three working days within which to decide whether to rely on the confirmed
certificate. (122) Where the Minister
decides to rely on the certificate, any visa or permit is cancelled and
the person will be removed or deported unless he or she is a refugee and
protected by the non-refoulement obligation contained in s 129X. Such person
is to be released from custody and given an appropriate temporary permit.
(123) The person named in a security certificate may, with the
leave of the Court of Appeal, appeal to the Court of Appeal on a question
of law only. (124) The security provisions
are silent as to the separate non-refoulement obligation contained in the
Convention against Torture. As Article 3 of the Convention contains no
exception for national security cases, that non-refoulement obligation
will continue to apply to security cases. (125)
Refugees
In response to concerns
expressed by the Court of Appeal in Butler v Attorney-General [1999]
NZAR 205, 218-220, the new Part VIA of the Immigration Act 1987 places
the refugee status determination procedures on a statutory footing. No
change has been made to the system itself and it continues to comprise
two tiers. The first instance decision is taken by a refugee status officer.
From this decision there is a right of appeal to the Refugee Status Appeals
Authority (RSAA). The decision of the RSAA is final, subject only to judicial
review. (126) Note, however, that review
proceedings must be commenced within three months after the date of the
decision, unless the High Court decides that, by reason of special circumstances,
further time should be allowed. (127)
The 1999 provisions make
it clear that under the new procedures, only refugee issues can be determined.
It is specifically provided that immigration matters are not within the
functions, powers or jurisdiction of refugee status officers and the RSAA.
(128) This means that any issue of a humanitarian nature which
arises outside the context of a decision relating to the recognition of
refugee status in New Zealand is outside the jurisdiction of both refugee
status officers and of the RSAA. (129)
Concentrating as they do
on the refugee determination process, the new provisions do not incorporate
the Refugee Convention into New Zealand domestic law notwithstanding the
reproduction of the text of the 1951 Convention and 1967 Protocol in the
Sixth Schedule. The only provisions of the Convention which have been incorporated
into New Zealand domestic law are Articles 32 and 33 which enshrine the
cornerstone non-refoulement obligation. See s 129X. It is noteworthy that
the non-refoulement obligation as transcribed into this section applies
not only to persons who are recognized as refugees in New Zealand, but
also to refugee status claimants. This is a result of the fact that the
refugee status determination process is declaratory, not constitutive.
(130) This necessarily requires the presumptive application of
certain provisions of the Convention to refugee claimants.
(131)
While the Refugee Convention
has not, with the one exception relating to the non-refoulement obligation,
been directly incorporated into New Zealand domestic law, the 1999 Amendment
Act expressly provides that in carrying out their functions under the new
Part VIA, refugee status officers and the RSAA are to act in a manner that
is consistent with New Zealand's obligations under the Refugee Convention.
(132)
The new provisions must
be read with the Immigration (Refugee Processing) Regulations 1999.
First
Instance Determination
Claims to be recognized
as a refugee must be determined by a refugee status officer designated
as such by the chief executive of the Department of Labour. No person may
be designated as a refugee status officer at any time when that person
is also currently employed in considering applications for permits under
the Immigration Act 1987 or in administering the removal provisions in
Part II of the Act. (133)
Refugee status officers
determine not only whether the claimant meets the inclusion clause criteria
of the Refugee Convention, but also the exclusion provisions contained
in Articles 1D, 1E and 1F of the Convention. (134)
An additional function of a refugee status officer is to determine whether
the cessation provisions of Article 1C of the Convention apply to any person
previously recognized as a refugee. (135)
Ancillary functions include the revisiting of a grant of refugee status
where that grant may have been procured by fraud, forgery, false or misleading
representation or concealment of relevant information with the consequential
loss of refugee status either pursuant to the cessation provisions of Article
1C or the exclusion provisions of Articles 1D, 1E and 1F.
(136) Where these issues surface in the context of a person granted
refugee status not by a refugee status officer, but by the RSAA, a refugee
status officer can apply to the RSAA for a determination of the cessation
or exclusion issues. (137)
It is the responsibility
of the refugee claimant to establish the claim, and the claimant must ensure
that all information, evidence, and submissions that the claimant wishes
to have considered in support of the claim are provided to the refugee
status officer before the officer makes a determination on the claim.
(138) The refugee status officer may seek information from any
source, but is not obliged to seek any information, evidence or submissions
further to that provided by the claimant. The claim can be determined on
the basis of only the information, evidence and submissions provided by
the claimant. (139) Refugee status officers
are now given specific power to require information, documents, consent
(to the release of documents or information relating to the claimant),
fingerprints and photographs. (140) Where
the claimant is in New Zealand with other members of the claimant's immediate
family, the claimant must disclose whether they are also seeking recognition
as refugees, and, if so, whether any such claim is on different grounds.
(141) The intention is that every person who seeks refugee status
in New Zealand must lodge his or her own independent claim to refugee status.
For the difficulties which might otherwise arise, see Garate v Refugee
Status Appeals Authority [1998] NZAR 241 (Williams J).
The current restrictions
on the lodging of a second claim to refugee status are carried over into
the new provisions. That is, the subsequent claim cannot be accepted unless
it can be shown that since the original determination, circumstances in
the claimant's home country have changed to such an extent that the further
claim is based on significantly different grounds to the previous claim.
In any such subsequent claim, the claimant may not challenge any finding
of credibility or fact made in relation to a previous claim, and the officer
may rely on any such finding. (142)
Appeal
The Refugee Status Appeals
Authority is continued and a representative of the United Nations High
Commissioner for Refugees remains an ex officio member of the Authority.
(143) Schedule 3C contains important provisions relating to the
powers of the RSAA as well as to appointment and remuneration of members
of the RSAA. Significantly, the Authority is to have the powers of a Commission
of Inquiry under the Commissions of Inquiry Act 1908 (except ss 11 and
12 which relate to costs). (144) The Authority
also has power to regulate its own procedure and may make such inquiries
and obtain such reports (if any) as it considers necessary and is not bound
by the rules of evidence but may inform itself in such manner as it thinks
fit. (145) There is also now a formal
requirement that an annual report be submitted to the Minister.
(146)
The function of the RSAA
is to hear appeals from determinations by refugee status officers not to
recognize a claimant as a refugee and to make determinations in relation
to refugee status on applications made by refugee status officers relating
to the issues of cessation and exclusion. (147)
In the case of a person
who is detained custody, an appeal to the RSAA must be lodged within five
working days from notification of the decision of the refugee status officer.
For those claimants who are not in custody, the time for bringing the appeal
is within 10 working days after receiving notification of the decision.
(148) The Authority does, however, have a discretion to extend
the time for lodging an appeal where satisfied that special circumstances
warrant such an extension. (149)
As is the case at first
instance, it is the responsibility of an appellant to establish the claim.
(150) This has long been an established principle of the jurisprudence
of the RSAA. (151) The Authority may seek
information from any source but is not obliged to do so and may determine
the appeal on the basis of the information, evidence and submissions provided
by the appellant. (152) These provisions
may qualify the impact of A v Refugee Status Appeals Authority (High
Court Auckland, CP310/98, 6 November 1998, Nicholson J).
The only circumstance in
which the Authority may dispense with an interview of the appellant are
those cases where the Authority considers that the appeal or other contention
of the person affected is prima facie manifestly unfounded or clearly abusive,
and the appellant or other affected person has been interviewed
by a refugee status officer in the course of determining the relevant matter
at first instance or, having been given an opportunity to be interviewed,
failed to take that opportunity. (153)
The Authority may, however, determine an appeal or other matter without
an interview if the appellant or other person affected fails without reasonable
excuse to attend a notified interview with the Authority.
(154)
Where the appellant is in
custody the Authority has power under the Commissions of Inquiry Act 1908,
s 4D to issue a summons. Where such summons is issued, the superintendent
or other person in charge of the relevant penal institution or other approved
premises, or other person having custody of the detained person, must produce,
or allow the production of, the person as directed in the summons.
(155)
Where the RSAA consists
of more than one member on an appeal or other matter, the decision on that
matter must be a majority decision. If the members are evenly divided,
the matter must be determined in favour of the appellant or other person
affected. (156) Decisions of the Authority
must be given in writing and include not only the reasons for the decision,
but also any minority view. (157) A decision
of the Authority is final once notified to the appellant or other affected
person.
Confidentiality
There is now an express
statutory obligation to maintain confidentiality as to the identity of
the claimant and the particulars of his or her case. This obligation rests
not only on refugee status officers and the RSAA, but also on other persons
involved in the administration of the Act. (158)
Maintaining confidentiality may, in an appropriate case, require confidentiality
as to the very fact or existence of a claim or case, if disclosure of its
fact or existence would tend to identify the person concerned, or be likely
to endanger any person. (159) A person
who without reasonable excuse contravenes the confidentiality duty or who
without reasonable excuse publishes information released in contravention
of the duty, commits an offence. (160)
The confidentiality obligation does not, however, prevent the disclosure
of particulars in relation to a particular claimant to the extent that
the claimant has, whether expressly or impliedly by word or action, waived
his or her right to confidentiality. (161)
This provision will no doubt prove useful to the Minister of Immigration
in cases similar to the Butler and Choi cases.
(162) The obligation of confidentiality does not prevent the
publication for research purposes by the RSAA of a decision made by it,
provided that the decision is edited in such a way as to remove the name
of the appellant or other affected person, and any particulars likely to
lead to the identification of the appellant or person.
(163)
Parallel
Immigration Applications
From 1 October 1999, refugee
status claimants who are granted a temporary permit may not, before or
after expiry of the temporary permit apply for a further temporary permit
or for a permit of a different type, request a special direction or bring
any appeal to the Residence Appeal Authority. (164)
The only permit for which application may be made is a temporary permit
to maintain lawful status in New Zealand while the refugee claim is determined.
(165) The right to appeal to the Removal Review Authority under
Part II is unaffected. (166)
Judicial
Review
Any review proceedings in
respect of a statutory power of decision arising out of or under the Immigration
Act 1987 must be commenced within three months after the date of the decision,
unless the High Court decides that, by reason of special circumstances,
further time should be allowed. (167)
The privative clause in s 10 of the principal Act which purports to bar
review proceedings where a visa has been refused has been extended to apply
also to limited purpose visas. (168) However,
the refusal of a limited purpose permit is expressly recognized as being
susceptible to challenge by judicial review. (169)
Legal Aid
Civil legal aid is not available
in respect of any proceedings involving a decision or matter under the
Immigration Act 1987 to a person who is the holder of a temporary permit
or a limited purpose permit, or who is unlawfully in New Zealand in terms
of the Immigration Act 1987. (170)
However, the special position
of refugees and refugee claimants has been recognized by the extension
of legal aid to the first instance hearings before refugee status officers.
(171) This restores the position to that which prevailed prior
to the coming into force of the Legal Services Act 1991 on 1 February 1992.
Under the earlier Legal Aid Act 1969, legal aid was available for both
the first instance hearing before immigration officers and for the appeal
hearing before the RSAA. (172) The withdrawal
of legal aid was a blunder which ultimately led to the massive abuse of
the refugee status procedures by the unscrupulous.
(173)
Legal aid is also available
for any judicial review proceedings in respect of proceedings or matters
arising out of decisions of refugee status officers or the RSAA.
(174) Legal aid is also available for any application to the
Inspector-General of Intelligence and Security for a review of a decision
by the Director of Security to make a security risk certificate.
(175)
Legal aid is expressly not
available for any appeal to the Residence Appeal Authority or to the Removal
Review Authority. (176)
JUDICIAL
DEVELOPMENTS
New
Zealand Citizenship in the Removal Process
Often, but not always, the
significance of New Zealand citizenship in the removal process arises in
the context of children born in New Zealand to persons who are, or who
later become, persons who are in New Zealand unlawfully. New Zealand citizenship
is acquired by birth in New Zealand. (177)
This fact, combined with the obligation under the Convention on the Rights
of the Child 1989, Article 3.1 that in all actions concerning children
undertaken by administrative authorities, the best interests of the child
shall be a primary consideration, has given rise to substantial difficulty
in the removal process. There is an inherent tension between the interests
of the New Zealand citizen child on the one hand, and the interests of
New Zealand in ensuring compliance by the parent(s) with the immigration
laws on the other. It is of potential significance that the Convention
on the Rights of the Child has not been incorporated into New Zealand domestic
law. In Tavita v Minister of Immigration [1994] 2 NZLR 256, 266
the Court of Appeal stated (obiter) that it is possible that some
international obligations, such as the Convention on the Rights of the
Child, may be so manifestly important that no reasonable Minister of Immigration
could fail to take them into account in making decisions in respect of
the child's parents. However, the question whether particular international
obligations not incorporated into New Zealand domestic law by legislation
are to be read into the exercise of statutory powers has been expressly
left open by the Court of Appeal in Puli'uvea v Removal Review Authority
(1996) 14 FRNZ 322, 330-331; Puli'uvea v Removal Review Authority
[1996] 3 NZLR 538, 541 and Rajan v Minister of Immigration [1996]
3 NZLR 543, 552.
In this unsatisfactory state
of affairs, the New Zealand Immigration Service, the Removal Review Authority
and the High Court have largely proceeded on the basis that the obiter
observations in Tavita are good law and that the provisions of the
Convention on the Rights of the Child are a mandatory relevant consideration
in the immigration context. The litigation has been substantial and not
all of the cases can be reconciled. But the following propositions appear
to have emerged:
Other
Court Challenges to the Removal Process
Other aspects of the removal
process, and in particular, both judicial reviews and appeals to the High
Court on questions of law against decisions of the Removal Review Authority
must be noted:
(a) The
High Court is showing impatience with meritless challenges to decisions
of the Removal Review Authority. See particularly Butler v Removal Review
Authority [1998] NZAR 409 (Giles J). Four observations were made at
420:
(ii) It
is not necessary for every single aspect of the evidence to be traversed
in minute detail by the Authority in its decision;
(iii)
An element of common sense must be applied. There must be acceptance of
the fact where an Authority such as this refers to specific documents and
evidence, it can be taken that they have been carefully reviewed and assessed;
(iv) The
Authority is a specialist tribunal and it has acquired and developed real
expertise in this specialist area. If there is an evidential basis upon
which the view it reaches can be supported it is not for the court to substitute
its own view.
(c) In
Schier v Removal Review Authority [1999] 1 NZLR 703, 705-706 (CA)
it was held that in the context of the limited right of appeal on a question
of law only conferred by s 115A, new evidence cannot be admitted in the
absence of very special circumstances;
(d) The
pre-requisites for a valid appeal to the Removal Review Authority have
been considered by the Court of Appeal on at least two occasions. In Cahayag
v Removal Review Authority [1998] 2 NZLR 72 it was held that the requirement
that the appeal be accompanied by the prescribed fee was mandatory. A facsimile
copy of a cheque is not a recognized or accepted mode of payment. However,
in Mick v Removal Review Authority [1999] NZAR 111 it was held that
a telegraphic transfer is an acceptable method of payment, but a fax authorizing
the amount to be withdrawn from an account is not. In Chand v Removal
Review Authority (High Court Auckland, M498/99, 9 April 1999, Salmon
J) the cheque was dishonoured and marked "present again". It was held that
there had been no payment in time regardless of whether the cheque would
have been honoured on re-presentation.
Residence
and the Residence Appeal Authority
While s 18F(4)(a) of the
Immigration Act 1987 empowers the Residence Appeal Authority to seek and
receive such information as it thinks fit, subs (7)(b) goes on to provide
that where the Authority exercises the power to seek information, any material
or information that is or may be prejudicial to the appellant must be disclosed
and an opportunity given to rebut or comment on the material or information.
Two recent cases would suggest that this duty is not always discharged.
In both Preston v Minister of Immigration [1998] NZAR 539, 564 (Giles
J) and in Martin v Chief Executive of the Department of Labour (High
Court Auckland, HC113/98, 4 November 1998, Cartwright J) decisions of the
Authority were set aside for failing to comply with the mandatory statutory
duty of disclosure.
Two decisions relating to
the Authority's power to refer cases to the Minister under s 18D(1)(f)
where there are "special circumstances" should be mentioned. The Authority
has apparently articulated a test to the effect that the circumstances
must be "unique, exceptional or [have] placed the appellant in a position
of a special nature". (178) This unauthorized
amendment of the statutory language is a significant misdirection in law.
In Joseph v Chief Executive of the Department of Labour (High Court
Wellington, AP171/97, 2 March 1998, McGechan J) it was held that the phrase,
and in particular the word "unique" was stronger than the statutory word
"special". In Martin, Cartwright J agreed, holding that "special
circumstances" does not require any added gloss. She went on to observe
that the inference she had drawn was that the Authority took a very cautious
approach to identifying special circumstances that might merit ministerial
consideration, thereby limiting the numbers of those cases in respect of
which the ministerial discretion might be exercised. She emphasized that
it was not possible for the Authority to categorize the circumstances in
which it may reach a determination that special circumstances might apply
and held that it is not for the Authority to determine whether it should
act as gatekeeper for the Minister. Special circumstances must be determined
on a case by case basis. In Martin, the Authority, in its decision,
had confined its discretion under s 18D(1)(f) to those occasions where
having regard to special circumstances "the changing commercial and social
needs in New Zealand" required different responses. Cartwright J held that
in so doing, the Authority had purported to exercise a discretion which
was the Minister's alone. That is, it had second-guessed the grounds on
which the Minister should exercise his discretion in special circumstance
cases whereas it was for the Minister in the exercise of his or her discretion
to consider any factors outside the strict confines of residence policy.
Cartwright J agreed with the submission that the Authority had been wrong
to restrict s 18D(1)(f) to those cases that "come close to meeting the
terms of the relevant category of policy".
As these cases illustrate,
the Residence Appeal Authority, as with other decision-makers, does from
time to time fall into significant error. As the arbiter of the interpretation
and application of Government residence policy, the decisions of the Authority
have, and are intended to have, a significant impact on the processing
of all residence visa and residence permit applications. The decisions
of the Authority should therefore be as widely available and accessible
as the New Zealand Immigration Service Operational Manual. Yet since
its creation by the Immigration Amendment Act 1991, the Authority has refused
to publish its decisions, even in a format edited in such a way as to remove
the name of the appellant or other affected person, and any particulars
likely to lead to the identification of the appellant or person. In October
1995 abstracts of decisions of the Authority (selected by the Authority
itself) began to be published in Brooker's Immigration and Refugee Digest.
The full text of the decisions, however, still remained inaccessible to
all except the Authority itself and the New Zealand Immigration Service.
On 2 July 1999 Brooker's gave notice that publication of the Digest
was to cease as the Authority could not, due to time and financial constraints,
provide case summaries. The refusal of the Authority to publish its decisions
makes critical examination of its jurisprudence difficult, to say the least,
and insulates it from challenge. Ultimately, this detracts from the rule
of law.
Refugees
and the Refugee Status Appeals Authority
In relation to decisions
of the RSAA (which, from its inception, have been published
(179)), the High Court and Court of Appeal have focused on issues
of procedural fairness and on the application of the exclusion clause contained
in Article 1F(b) of the Refugee Convention.
Whether
a Duty to Investigate
In A v Refugee Status
Appeals Authority (High Court Auckland, CP310/98, 6 November 1998,
Nicholson J) the refugee claimant alleged that he was wanted by the police
in his country of origin. In support of his claim he produced copies of
various court documents, including a warrant of arrest. After hearing the
claimant, the RSAA doubted whether court proceedings had in fact been commenced
and gave four specific reasons for this finding. In judicial review proceedings
it was submitted that before the Authority could make its assessment of
the documents, the Authority was under a duty to make proper inquiries
as to the genuineness of the documents. It was held that bearing in the
mind the Authority's specialist knowledge and function and the difficulties
of obtaining authentication of some documents, a court should not find
the Authority was wrong in failing to make inquiries about or investigating
the authenticity of a document so as to be in breach of the principles
of natural justice, unless it was clear that the Authority's failure to
make inquiries or to investigate was so unreasonable and unfair that no
reasonable Authority would forego the making of such further inquiry or
investigation. The practicability of reliably and promptly authenticating
or updating a document would be a major factor in deciding reasonableness.
The result of such a stringent test will always depend upon the facts and
circumstances of each particular case. On the facts, the Authority had
not been in breach of the principles of natural justice in failing to make
inquiry. The judgment records at length and with apparent approval, the
principal factors ordinarily taken into account by the RSAA in deciding
whether to exercise its discretion to request the Immigration Service to
obtain information, or to carry out an investigation. Those factors are,
in summary, (a) the potential for breaching the confidentiality obligations;
(b) the potential that the making of an inquiry can render the refugee
claimant a refugee sur place. That is the inquiry may place at risk
a refugee claimant who would otherwise have no proper claim to refugee
status; (c) delay; (d) practical difficulties; (e) even if an inquiry is
made, the outcome may be problematical; (f) the veracity of documents or
their content is often incapable of effective verification; (g) expense.
This decision, however, must now be read in the light of s 129P(2), as
inserted by the Immigration Amendment Act 1999.
Exclusion
- Article 1F(b)
As to the issue of exclusion,
Article 1F(b) excludes from the Convention a person in respect to whom
there are serious reasons for considering that he or she has committed
a serious non-political crime outside the country of refuge prior to his
or her admission to that country as a refugee. The exclusion applies even
if the individual has a well-founded fear of persecution for a Convention
reason if returned to the country of origin.
In S v Refugee Status
Appeals Authority [1998] 2 NZLR 291 (CA) consideration was given to
two issues. First the meaning of the phrase "serious crime". It was held
at 296-297 that to classify a crime as serious requires an evaluation not
only of the elements which form the crime, but also of its facts and circumstances,
as well as the circumstances of the offender which are relevant for the
purposes of the criminal law. The level of penalty inflicted or likely
to be inflicted in those circumstances by the contracting state and probably,
by the state in which the crime was committed, are relevant factors. The
inquiry must be whether the crime is of sufficient gravity to justify withholding
the benefits conferred by the Convention. Exclusion is directed to offending
at the upper end of the scale, which is likely to attract a severe penalty,
at least in the nature of imprisonment for an appreciable period of years.
The second issue was whether Article 1F(b) requires a balancing exercise
in which the seriousness of the crime is weighed against the gravity of
the consequences of return to the country of origin. It was held at 296-297
that there is no proportionality test. Whether a crime is to be categorized
as serious is to be determined by reference to the nature and details of
the particular offending, and its likely penal consequences. It does not
depend upon, nor does it involve, a comparative assessment of its gravity
with the gravity of the perceived persecution if returned to the homeland
eventuates.
In Garate v Refugee Status
Appeals Authority [1998] NZAR 241 (Williams J) the High Court upheld
a decision of the RSAA that a police officer from Peru who admitted torturing
suspected members of the Sendero Luminoso was excluded from the Refugee
Convention. The court approved the two principal decisions of the Authority,
namely Refugee Appeal No. 1248/93 Re TP (31 July 1995) and Refugee
Appeal No. 1655/93 Re MSI (23 November 1995). In particular, the test
of "serious reasons for considering" was confirmed to be a lower standard
of proof than the balance of probabilities, as was the principle that while
membership of an organization which from time to time commits international
offences is not normally sufficient for exclusion from refugee status,
where an organization is principally directly to a limited, brutal purpose,
such as a secret police activity, mere membership may by necessity involve
personal and knowing participation in persecutorial acts. Furthermore,
frequent participation in such acts is unnecessary as Article 1F(a) only
speaks of "a crime against humanity" in the singluar.
Internal
Protection
In the past 12 months there
have been no noteworthy decisions of the Refugee Status Appeals Authority
touching on refugee jurisprudence. However, there are currently before
the Authority several cases which raise significant issues of law. Among
them is the future direction of the relocation jurisprudence. In Butler
v Attorney-General [1999] NZAR 205, 217-218 the Court of appeal suggested
that the jurisprudence of the RSAA may have gone too far. In this context
The Michigan Guidelines on the Internal Protection Alternative (April
1999) are to be noted in that they articulate a principled approach to
what has become known as the internal flight alternative or relocation
principle. The Guidelines prefer an approach which emphasizes the
element of internal protection. Also before the RSAA is the topic of civil
war as is the impact in New Zealand of the recent decision of the House
of Lords in R v Immigration Appeal Tribunal; Ex parte Shah [1999]
2 WLR 1015; [1999] 2 All ER 545 (HL).
Reasons
The Immigration Act 1987
contains a limited right to reasons. The right is limited because reasons
can only be requested in those cases where there has been a refusal to
grant a permit. However, this restriction can be overcome
if the request for reasons is also expressed to be made under s 23 of the
Official Information Act 1982 which is not so restricted. The Official
Information Act provision does not, however, override those sections of
the Immigration Act 1987 which allow the Minister to decline to give reasons.
See for example, s 35A(2) for the standard formula employed. However, in
those cases where there is a duty to give reasons, either under the Immigration
Act 1987 or under the Official Information Act 1982 (or indeed under the
rules of fairness), the Court of Appeal has provided a useful statement
as to the content of the duty to give reasons. In Singh v Chief Executive
Officer, Department of Labour [1999] NZAR 258, 262-263 there is an
illuminating explanation of the rationale for requiring reasons and a helpful
statement of what the law requires of the decision-maker in this context.
It is not enough to simply state a conclusion in the words of the empowering
statute; the reasons must be proper, adequate ones dealing with the point
in contention. More specifically, a statement of reasons in the context
of cases similar to that before the Court of Appeal in Singh calls
for: (a) findings on material questions of fact; (b) a reference to the
relevant law or legal principles; (c) the application of the law as determined
to the facts as found.
Judicial
Review - General
Appeals
and Review
The statutory right of appeal
to the High Court from decisions of the Residence Appeal Authority, the
Removal Review Authority and the Deportation Review Tribunal conferred
by ss 115, 115A and 117 are confined to questions of law only. However,
independent of the right of appeal, there is the right to bring judicial
review proceedings. Ordinarily, parallel appeal and judicial review proceedings
should be brought contemporaneously if the statutory "question of law only"
appeal does not allow all administrative law challenges to be made. It
is plainly inadvisable to first exercise the right of appeal and, in the
event of an unsuccessful outcome, to then bring judicial review proceedings
on virtually identical grounds. This was attempted in Butler v Removal
Review Authority [1998] NZAR 409 (Giles J) (the appeal) and Butler
v Removal Review Authority [1999] NZAR 69 (Wild J) (the review proceedings).
In the latter case, the court struck out the statement of claim as an abuse
of the court's process. As the plaintiff was legally aided, no order as
to costs was made, but Wild J did urge the legal aid authorities to be
"vigilant in ensuring that scarce legal aid resources are not employed
in attempts to re-litigate matters".
It was possibly cases of
this kind that led to the enactment of s 146A(1) by the Immigration Amendment
Act 1999 which now requires review proceedings to be commenced within three
months after the date of the decision, unless the High Court decides that
by reason of special circumstances, further time should be allowed. The
provision goes on to provide that where a person has both appealed against
a decision of an Authority or the Deportation Review Authority under any
of ss 115, 115A and 117 and also brought review proceedings in respect
of that same decision, the High Court is to "endeavour to hear both matters
together unless it considers it impracticable in the particular circumstances
of the case to do so."
In Schier v Removal Review
Authority [1999] 1 NZLR 703, 705-706 (CA) it was held that in the context
of the limited right of appeal on a question of law only conferred by s
115A, new evidence cannot be admitted in the absence of very special circumstances.
Legitimate
Expectation
The legitimate expectation
doctrine has not enjoyed much success in the immigration context, particularly
since Tay v Attorney-General [1992] 2 NZLR 693 (Hillyer J). See
Singh v Branch Manager of New Zealand Immigration Services [1998]
NZAR 97 (Potter J) and Preston v Minister of Immigration [1998]
NZAR 539 (Giles J). However, Bahadur Singh v Minister of Immigration
(High Court Auckland, M42/99, 28 April 1999, Tompkins J) may be noted for
the acceptance by the High Court that the publication by the New Zealand
Immigration Service of its policy on removals post-Tavita where
New Zealand citizen children are involved (Attachment 11), did give rise
to a legitimate expectation that immigration officers would have regard
to the matters set out in the policy statement.
Torture
Convention
As already mentioned, New
Zealand is a party to the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment 1984. (180)
Under this instrument New Zealand cannot expel, return (refouler)
or extradite a person to another State where there are substantial grounds
for believing that he or she would be in danger of being subjected to torture.
(181) The protection afforded by the Convention against Torture
is wider than that provided by the Refugee Convention. Whereas the non-refoulement
provisions of the Refugee Convention apply only to refugees, the Convention
against Torture applies to any person who, for whatever reason, is in danger
of being subjected to torture if handed over to another country. Nor does
the Convention against Torture permit of any exception to the non-refoulement
obligation based on grounds of national security, public order or danger
to the community. (182) The striking impact
of the Convention against Torture is illustrated by S v Refugee Status
Appeals Authority [1998] 2 NZLR 291, 300 (CA). Even though S was held
to be properly excluded from the Refugee Convention, this did not mean
automatic expulsion from New Zealand or refoulement. New Zealand's obligations
under the Convention against Torture remained to be considered.
New Zealand recognizes the
competence of the Committee Against Torture to receive and consider communications
from or on behalf of individuals who claim to be victims of a violation
by a State Party of the provisions of the Convention.
(183) There is therefore an international remedy available following
the exhaustion of domestic remedies. While decisions of the Committee Against
Torture are not binding, they are nevertheless of considerable persuasive
and moral force. At the present time, however, legal aid for applications
to the Committee Against Torture would seem to be not available in the
light of Wellington District Legal Services Committee v Tangiora
[1998] 1 NZLR 129 (CA). The matter is presently before the Privy Council.
1.
Eugene Bingham, "Brain-drain nobbles growth outlook", NZ Herald,
May 21, 1999, front page.
2.
"Population Spurt", NZ Herald, September 3, 1998, p A3.
3.
New Zealand Immigration Service, Immigration Fact Pack (Issue 10,
December 1998, p 4). Cf "Population spurt", NZ Herald, September
3, 1998, p A3.
4.
Eg, "Australians worried", NZ Herald, October 14, 1998, p A4.
5.
Eg, Yoke Har Lee, "Migrant policies hurting NZ's Asian business community",
NZ Herald, August 7, 1998, p D2; David Barber, "Government rethinks
migrant policy after numbers and investment slump", National Business
Review, August 14, 1998, p 5; Adam Gifford, "IT immigration changes
hailed", NZ Herald, November 23, 1998, p C1.
6.
New Zealand Immigration Service, Immigration Fact Pack Issue 10,
December 1998, p 4.
7.
New Zealand Immigration Service, Immigration Fact Pack Issue 8,
August 1997, p 1.
8.
"Immigration - Overstayers - Improved Data Sought", 21 TCL 10 3 (24 March
1998); Haines, "International Law and Refugees in New Zealand" [1999] NZ
Law Review 119, 138.
9.
Letter to author from NZIS dated 29 April 1999. The number of "mismatches"
on the mismatch list (a list of persons arriving in New Zealand is compared
to those who have actually departed) was 64,470 as at 17 April 1999. Persons
on this list may not be overstayers if, for example, they are dual citizens.
10.
Residence Appeal Authority, Annual Report 1997, pp 1 & 8.
11.
Residence Appeal Authority, Annual Report 1998, pp 1, 6 & 7.
12.
Removal Review Authority, Annual Report 1997, p 2.
13.
Ibid, pp 3, 4 & Appendix 1.
14.
Removal Review Authority, Annual Report 1998, p 3 & Appendix
1.
15.
Removal Review Authority, Annual Report 1997, p 4.
16.
Removal Review Authority, Annual Report 1998, p 4.
17.
Immigration Amendment Act 1999, s 1(2).
18.
Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).
19.
Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA); Puli'uvea
v Removal Review Authority [1996] 3 NZLR 538 (CA).
20.
Rajan v Minister of Immigration [1996] 3 NZLR 543 (CA).
21.
Schier v Removal Review Authority [1999] 1 NZLR 703 (CA).
22.
Martin v Chief Executive of the Department of Labour (High Court
Auckland, HC113/98, 4 November 1998, Cartwright J).
23.
Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J).
24.
A v Refugee Status Appeals Authority (High Court Auckland, CP310/98,
6 November 1998, Nicholson J).
25.
S v Refugee Status Appeals Authority [1998] 2 NZLR 291 (CA); Garate
v Refugee Status Appeals Authority [1998] NZAR 241 (Williams J).
26.
Immigration Act 1987, ss 14 and 24.
27.
Immigration Amendment Act 1999, ss 14DA, 34A, 34B, 34C, 34D, 34E, 34F.
28.
Over, 1.300 Chinese students claimed refugee status in New Zealand following
the June 4, 1989 Tiananmen Square massacre. Thirty two Vietnamese students
have also applied for refugee status. The Department of Labour, "Immigration
Briefing", September 1998, p 11, para 50.
29.
Hon Max Bradford, Minister of Immigration, "Schools and Institutions Involved
in Trial Chinese Student Quota", New Zealand Executive Government News
Release Archive (3 October 1997).
30.
Hon Max Bradford, Minister of Immigration, "Schools and Institutions Involved
in Trial Chinese Student Quota", New Zealand Executive Government News
Release Archive (3 October 1997).
31.
Hon Wyatt Creech, Minister of Education and Hon Max Bradford, Minister
of Immigration, "Chinese Student Quota Increased", New Zealand Executive
Government News Release Archive (17 June 1998)
32.
Hon Tuariki John Delamere, Minister of Immigration, "Three Thousand More
Student Places for People's Republic of China", New Zealand Executive
Government News Release Archive (15 October 1998).
33.
Immigration Act 1987, ss 5(1)(c)(a), 6(1)(c)(a), 14DA, 34A to F.
34.
Immigration Act 1987, s 34A as inserted by the Immigration Amendment Act
1999, s 25.
35.
Immigration Act 1987,, s 14DA(2) as inserted by the Immigration Amendment
Act 1999, s 13.
36.
Immigration Act 1987, s 34C(1) as inserted by the Immigration Amendment
Act 1999, s 25.
37.
Immigration Act 1987, s 34B(1)(b) and s 34C(4) as inserted by the Immigration
Amendment Act 1999, s 25.
38.
Immigration Act 1987, s 34C(3) as inserted by the Immigration Amendment
Act 1999, s 25.
39.
Immigration Act 1987, s 34D(2)(a) and (b) as inserted by the Immigration
Amendment Act 1999, s 25.
40.
Immigration Act 1987, s 34D(2)(c) and 34F(a) as inserted by the Immigration
Amendment Act 1999, s 25.
41.
Immigration Act 1987, s 9A(3) as inserted by the Immigration Amendment
Act 1999, s 8.
42.
Legal Services Act 1991, s 28(3)(3) and s 53(5).
43.
Ibid, s 28(3).
44.
See the heading "Bonds" below.
45.
The mismatch (overstayer) numbers for the year ended 30 July 1997 provided
by the New Zealand Immigration Service to the author, show that the ranking
of these countries, and the percentage their citizens comprise "mismatches"
are as follows: Samoa 21%; Tonga 13%; Great Britain 10%; USA 9%; Thailand
3%; Fiji 3%; Japan 3%; Korea 3%; India 3%.
46.
Hon Max Bradford, Minister of Immigration, "New Transit Visa Arrangements",
New Zealand Government Executive News Release Archive (30 June 1998);
Hon Max Bradford, Minister of Immigration, "Transit Visas to Prevent Abuse",
New Zealand Government Executive News Release Archive (7 August
1998).
47.
Immigration (Transit Visas) Regulations 1998 (SR 1998/164). These Regulations
added citizens of Colombia, Ecuador, countries that were part of the former
Soviet Union, and the majority of countries in the African continent to
the list of persons who require transit visas. They also added Niue, Tokelau
and the Marshall Islands to the list of routes for which transit visas
are required.
48.
Immigration Amendment Regulations (No. 4) 1998 (SR 1998/320) Reg 2(b);
Immigration (Transit Visas) Amendment Regulations (No. 2) 1998 (SR 1998/321),
Reg 2.
49.
For an account of the violence see Human Rights Watch, Indonesia: The
Damaging Debate on Rapes of Ethnic Chinese Women (September 1998) and
Susan Berfield & Dewi Loveard, "Ten Days that Shook Indonesia", Asia
Week (July 24, 1998) 30-41.
50.
Hon Tuariki John Delamere, Minister of Immigration, "Indonesian Nationals
Require Visas to Enter New Zealand", New Zealand Government Executive
News Release Archive (21 October 1998).
51.
Immigration (Transit Visas) Regulations 1999 (SR 1999/172).
52.
Hon Tuariki John Delamere, Minister of Immigration, "NZIS moves swiftly
on Kosovo refugee aid", New Zealand Government Executive News Release
Archive (13 April 1999). As at 10 July 1999, only some 160 of the anticipated
600 individuals had arrived in New Zealand. See Warren Gamble, "Some Kosovo
refugees quitting a second time", Weekend Herald, July 10-11, 1999,
p A13; Warren Gamble & Catherine Masters, "NZ refuge better option
than stripped home", NZ Herald, July 12, 1999, p A3.
53.
Immigration Act 1987, s 14E(1)(a) as inserted by the Immigration Amendment
Act 1991, s 8.
54.
Ibid, s 14E(1)(a) as amended by the Immigration Amendment Act 1999, s 14(1).
55.
Immigration Act, s 14E(2B) as amended by the Immigration Amendment Act
1999, s 14(3).
56.
Immigration Act, s 14E(2)(b) as amended by the Immigration Amendment Act
1999, s 14(2).
57.
Immigration Act 1987, s 148B(7) as inserted by the Immigration Amendment
Act 1999, s 54.
58.
Immigration Act 1987, s 148B(8) as inserted by the Immigration Amendment
Act 1999, s 54.
59.
Immigration Act 1987, s 148B(10) as inserted by the Immigration Amendment
Act 1999, s 54.
60.
Immigration Act 1987, s 148B(12) as inserted by the Immigration Amendment
Act 1999, s 54.
61.
Immigration Act 1987, s 14D(5) as amended by the Immigration Amendment
Act 1999, s 12.
62.
Immigration Amendment Act 1987, s 14DA(4) as inserted by the Immigration
Amendment Act 1999, s 13.
63.
Immigration Act 1987, s 27(1A) as amended inserted by the Immigration Amendment
Act 1999, s 21.
64.
Immigration Act 1987, s 18A(3A) as amended by the Immigration Amendment
Act 1999, s 15.
65.
Immigration Act 1987, s 148B(14).
66.
Refugee Convention, Article 33. As to the non-refoulement obligation and
national security and public order, see Article 32.
67.
Ministry of Foreign Affairs and Trade, New Zealand Consolidated Treaty
List as at 31 December 1996 Part 1 (Multilateral Treaties) (May 1997)
pp 183 and 234.
68.
See further Haines, "International Law and Refugees in New Zealand" [1999]
NZ Law Review 119, 130.
69.
Haines, The Legal Condition of Refugees in New Zealand (Legal Research
Foundation, Auckland, 1995) 30-35.
70.
"Govt fears refugee boat first of many", NZ Herald, May 24, 1996;
NZPA, "Chinese Boatpeople 'unlikely' to make NZ", NZ Herald, February
25, 1997, p A4; "Heading for NZ", NZ Herald, October 4, 1997, p
A3; AP, "Refugees pick NZ", NZ Herald, February 24, 1999, p B3;
Staff Reporter, NZPA, "Bill targets Chinese boatpeople", NZ Herald,
June 16, 1999, front page.
71.
For Australia, see Joint Standing Committee on Migration, Parliament of
the Commonwealth of Australia, Asylum Border Control and Detention
(February 1994); Australian National Audit Office, The Management of
Boatpeople (1988); Greg Ansley, "Trade in people ruthless" NZ Herald,
June 17, 1999, p A15; For the USA, see William Branigin, "US agents bust
global smuggling ring" Guardian Weekly, November 29, 1998, p 17;
"US cracks largest-ever global smuggling rings", 76 Interpreter Releases
117 (Jan 15, 1999).
72.
Immigration Act 1987, s 128(7).
73.
Ibid, s 63B.
74.
The position in Australia is described in Crock (ed), Protection or
Punishment? The Detention of Asylum-Seekers in Australia (Federation
Press, 1993); Joint Standing Committee on Migration, Parliament of the
Commonwealth of Australia, Asylum, Border Control and Detention
(February 1994); Human Rights and Equal Opportunity Commission, Those
Who've Come Across the Seas: Detention of Unauthorized Arrivals (1998).
75.
Ibid, s 128(13B) as amended by the Immigration Amendment Act 1999, s 37(2).
76.
Hon Tuariki John Delamere, Minister of Immigration, "Boatpeople Bill to
be introduced to Parliament tonight", New Zealand Executive Government
News Release Archive (15 June 1999). Staff reporter, "Bill targets
Chinese boatpeople" NZ Herald, June 16, 1999, front page; John Armstrong,
"Orion to scan seas for boatpeople" NZ Herald, June 17, 1999, p
A3; Manying Ip, "Economic migrants are not refugees" NZ Herald,
June 22, 1999, p A13; Matt Robson, "Imbalance in handling immigrants" NZ
Herald, June 25, 1999, p A11.
77.
Immigration Amendment Act (No. 2) 1999, s 2.
78.
"Chinese boatpeople dumped in PNG", NZ Herald, July 14, 1999, p
A6; see also Colin James, "Migrant repellent", Far Eastern Economic
Review (July 8, 1999) p 22.
79.
Hon Tuariki Delamere, Minister of Immigration, "Making New Zealand a More
Attractive Destination" New Zealand Government Executive News Release
Archive (12 October 1998).
80.
New Zealand Immigration Service, "Business immigration changes to Government
residence policy and Government immigration policy" Amendment Circular
No. 99/1, 2 March 1999.
81.
New Zealand Immigration Service, "Revised NZIS Operational Manual" Amendment
Circular No. 99/9, 13 July 1999.
82.
Immigration Act 1987, s 18A(3A) inserted by the Immigration Amendment Act
1999, s 15.
83.
Immigration Act 1987, s 18A(3B) inserted by the Immigration Amendment Act
1999, s 15.
84.
As inserted by the Immigration Act 1999, s 16.
85.
Immigration Act 1987, s 18F(4A)(a) inserted by the Immigration Amendment
Act 1999, s 16.
86.
Immigration Amendment Act 1987, s 18F(4A)(b) inserted by the Immigration
Amendment Act 1999, s 16.
87.
Immigration Act 1987, s 22(10) as amended by the Immigration Amendment
Act 1999, s 20.
88.
Immigration Act 1987, s 35AB as inserted by the Immigration Amendment Act
1999, s 29.
89.
Immigration Act 1987, s 34G as inserted by the Immigration Amendment Act
1999, s 26.
90.
Immigration Act 1987, s 142(j) as amended by the Immigration Amendment
Act 1999, s 50(4).
91.
Immigration Act 1987, s 144(1) as amended by the Immigration Amendment
Act 1999, s 52(1).
92.
Immigration Act 1987, s 144(1)(A) as amended by the Immigration Amendment
Act 1999, s 52(2).
93.
Immigration Act 1987, 1s 50 and 51.
94.
Immigration Act 1987, ss 50 and 64 as amended by the Immigration Amendment
Act 1991, ss 23 and 31.
95.
Immigration Act 1987, s 51(1)(b).
96.
Immigration Act 1987, s 51(1)(c) and (d), ss 63A and 63B.
97.
Letter to author from New Zealand Immigration Service dated 29 April 1999.
98.
Letter to author from New Zealand Immigration Service dated 29 April 1999.
99.
Letter to author from New Zealand Immigration Service dated 29 April 1999.
100.
The long title of the Immigration Amendment Act 1999 states, in part, that
the Act is to "improve the effectiveness of the removal regime for persons
unlawfully in New Zealand by streamlining the procedures involved, so ensuring
(i) A higher level of compliance with immigration laws; and ...".
101.
Immigration Act 1987, s 45(1) as inserted by the Immigration Amendment
Act 1999, s 34.
102.
Immigration Act 1987, s 45(2) as inserted by the Immigration Amendment
Act 1999, s 34.
103.
Immigration Act 1987, s 45(3) as inserted by the Immigration Amendment
Act 1999, s 34.
104.
Immigration Act 1987, s 46 as inserted by the Immigration Amendment Act
1999, s 34.
105.
Immigration Act 1987, s 47(2)(a) as inserted by the Immigration Amendment
Act 1999, s 34.
106.
Immigration Act 1987, s 47(2)(b) as inserted by the Immigration Amendment
Act 1999, s 34.
107.
Immigration Act 1987, ss 53 and 54 as inserted by the Immigration Amendment
Act 1999, s 34.
108.
Immigration Act 1987, s 55 as inserted by the Immigration Amendment Act
1999, s 34.
109.
Immigration Act 1987, s 57 as inserted by the Immigration Amendment Act
1999, s 34.
110.
Immigration Act 1987, s 47(3) as inserted by the Immigration Amendment
Act 1999, s 34.
111.
Immigration Act 1987, s 48 as inserted by the Immigration Amendment Act
1999, s 34.
112.
Immigration Act 1987, s 47(5) as inserted by the Immigration Amendment
Act 1999, s 34.
113.
Immigration Act 1987, s 69(1) as inserted by the Immigration Amendment
Act 1999, s 34.
114.
Immigration Act 1987, s 69(2) as inserted by the Immigration Amendment
Act 1999, s 34.
115.
Immigration Act 1987, s 70(3) as inserted by the Immigration Amendment
Act 1999, s 34.
116.
These procedures are further amplified by the new Part IIIA of the Immigration
Regulations 1991 (SR 1991/241) inserted by the Immigration Amendment Regulations
(No. 3) 1999 (SR 1999/171).
117.
Immigration Act 1987, s 114D as inserted by the Immigration Amendment Act
1999, s 35.
118.
Immigration Act 1987, s 114G as inserted by the Immigration Amendment Act
1999, s 35.
119.
Immigration Act 1987, s 114G(3)(c) as inserted by the Immigration Amendment
Act 1999, s 35.
120.
Immigration Act 1987, s 114H as inserted by the Immigration Amendment Act
1999, s 35.
121.
Immigration Act 1987, s 114L as inserted by the Immigration Amendment Act
1999, s 35.
122.
Immigration Act 1987, s 114K as inserted by the Immigration Amendment Act
1999, s 35.
123.
Immigration Act 1987, s 114K(4)(c) as inserted by the Immigration Amendment
Act 1999, s 35.
124.
Immigration Act 1987, s 114P as inserted by the Immigration Amendment Act
1999, s 35.
125.
See by analogy Chahal v United Kingdom (1997) 23 EHRR 413 at para
80 (ECHR); Ahmed v Austria (1997) 24 EHRR 278 at para 41 (ECHR).
126.
Immigration Act 1987, s 129Q(5) as inserted by the Immigration Amendment
Act 1999, s 40.
127.
Immigration Act 1987, s 146A(1) as inserted by the Immigration Amendment
Act 1999, s 53.
128.
Immigration Act 1987, s 129W as inserted by the Immigration Amendment Act
1999, s 40.
129.
Immigration Act 1987, s 129W(e) as inserted by the Immigration Amendment
Act 1999, s 40.
130.
Office of the United Nations High Commissioner for Refugees, Handbook
on Procedures and Criteria for Determining Refugee Status, para 28.
131.
Haines, "International Law and Refugees in New Zealand" [1999] NZ Law
Review 119, 130.
132.
Immigration Act 1987, s 129D(1) as inserted by the Immigration Amendment
Act 1999, s 40.
133.
Immigration Act 1987, s 129E as inserted by the Immigration Amendment Act
1999, s 40.
134.
Immigration Act 1987, s 129F as inserted by the Immigration Amendment Act
1999, s 40.
135.
Immigration Act 1987, s 129L as inserted by the Immigration Amendment Act
1999, s 40.
136.
Immigration Act 1987, s 129L as inserted by the Immigration Amendment Act
1999, s 40.
137.
Immigration Act 1987, s 129L(1)(f) as inserted by the Immigration Amendment
Act 1999, s 40.
138.
Immigration Act 1987, s 129G(5) as inserted by the Immigration Amendment
Act 1999, s 40.
139.
Immigration Act 1987, s 129G(6) as inserted by the Immigration Amendment
Act 1999, s 40.
140.
Immigration Act 1987, s 129H(1) as inserted by the Immigration Amendment
Act 1999, s 40.
141.
Immigration Act 1987, s 129G(3) as inserted by the Immigration Amendment
Act 1999, s 40.
142.
Immigration Act 1987, s 129J and see the decisions of the Refugee Status
Appeals Authority in Refugee Appeal No. 2245/94 Re SS (28 October
1994) 16-19; Refugee Appeal No. 70027/96 Re SMI (19 September 1996)
8; Refugee Appeal No. 70387/97 Re MSI (14 May 1997) and Refugee
Appeal No. 70461/97 Re SMI (4 September 1997).
143.
Immigration Act 1987, s 129N as inserted by the Immigration Amendment Act
1999, s 40.
144.
Immigration Act 1987, Schedule 3C clause 7 as inserted by the Immigration
Amendment Act 1999, s 40.
145.
Immigration Act 1987, Schedule 3C, clauses 8 and 9 as inserted by the Immigration
Amendment Act 1999, s 40.
146.
Immigration Act 1987, Schedule 3C, clause 11 as inserted by the Immigration
Amendment Act 1999, s 40.
147.
Immigration Act 1987, s 129N(2) as inserted by the Immigration Amendment
Act 1999, s 40.
148.
Immigration Act 1987, s 129O(3) as inserted by the Immigration Amendment
Act 1999, s 40.
149.
Immigration Act 1987, s 129O(4) as inserted by the Immigration Amendment
Act 1999, s 40. For the current jurisprudence of the RSAA see Refugee
Appeal No. 59/91 Re R (19 May 1992); Refugee Appeal No. 46/91 Re
SM (19 August 1992) and Refugee Appeal No. 81/92 Re AN (25 June
1992).
150.
Immigration Act 1987, s 129P(1) as inserted by the Immigration Amendment
Act 1999, s 40.
151.
See Refugee Appeal No. 523/92 Re RS (17 March 1995) 17-22.
152.
Immigration Act 1987, s 129P(2) as inserted by the Immigration Amendment
Act 1999, s 40.
153.
Immigration Act 1987, s 129P(5) as inserted by the Immigration Amendment
Act 1999, s 40.
154.
Immigration Act 1987, s 129P(6) as inserted by the Immigration Amendment
Act 1999, s 40.
155.
Immigration Act 1987, s 129P(7) as inserted by the Immigration Amendment
Act 1999, s 40.
156.
Immigration Act 1987, s 129Q(1) and (2) as inserted by the Immigration
Amendment Act 1999, s 40.
157.
Immigration Act 1987, s 129Q(3) as inserted by the Immigration Amendment
Act 1999, s 40.
158.
Immigration Act 1987, s 129T as inserted by the Immigration Amendment Act
1999, s 40.
159.
Immigration Act 1987, s 129T(2) as inserted by the Immigration Amendment
Act 1999, s 40.
160.
Immigration Act 1987, s 129T(5) as inserted by the Immigration Amendment
Act 1999, s 40.
161.
Immigration Act 1987, s 129T(4) as inserted by the Immigration Amendment
Act 1999, s 40.
162.
See for example Wishart, An Irish Legacy: The Real Danny Butler Story
(Howling at the Moon Productions Ltd, 1998); NZPA, "Ex-Diplomat's deportation
appals lawyer" NZ Herald, May 10, 1996; Editorial, "Better late
than never" NZ Herald, November 12, 1997, p A16.
163.
Immigration Act 1987, s 129T(3)(e) and Schedule 3C, clause 12 as inserted
by the Immigration Amendment Act 1999, s 40.
164.
Immigration Act 1987, s 129U as inserted by the Immigration Amendment Act
1999, s 40.
165.
Immigration Act 1987, s 129U(3) as inserted by the Immigration Amendment
Act 1999, s 40.
166.
Immigration Act 1987, s 129U(4) as inserted by the Immigration Amendment
Act 1999, s 40.
167.
Immigration Act 1987, s 146A(1) as inserted by the Immigration Amendment
Act 1999, s 53 and the Judicature Act 1908, s 56CA as amended by the Immigration
Amendment Act 1999, s 63.
168.
Immigration Amendment Act 1999, s 9.
169.
Immigration Act 1987, s 9A as inserted by the Immigration Amendment Act
1999, s 8.
170.
Legal Services Act 1991, s 28(3) as amended by the Immigration Amendment
Act 1999, s 64(3).
171.
Legal Services Act 1991, s 19(1)(ja) as amended by the Immigration Amendment
Act 1999, s 64(1).
172.
See Haines, "Legal Aid Issues in the Refugee Determination Process", The
Legal Condition of Refugees in New Zealand (Legal Resarch Foundation,
Auckland, 1995) 39, 42.
173.
See Refugee Appeal No. 70951/98 (5 August 1998) 17-24.
174.
Legal Services Act 1991, s 19(1)(jb) as amended by the Immigration Amendment
Act 1999, s 64.
175.
Legal Services Act 1991, s 19(1)(jc) as amended by the Immigration Amendment
Act 1999, s 64.
176.
Legal Services Act 1991, s 19(4A) as amended by the Immigration Amendment
Act 1999, s 64(2).
177.
Laws NZ, Citizenship and Nationality para 10.
178.
The word "apparently" is used as the Authority refuses to publish its decisions,
even in an abridged format protecting the identity of the appellant.
179.
Copies of all RSAA decisions are available from the Authority itself, the
Davis Law Library, Faculty of Law, Auckland and the High Court Library
at the High Court, Auckland. The principal decisions of the RSAA are also
available in electronic format on the RefNZ web site at www.refugee.org.nz.
This we b site also contains abstracts of all RSAA decisions, headnotes
of High Court and Court of Appeal decisions on refugee issues, papers on
New Zealand refugee law, a News page and links to other refugee law web
sites.
180.
New Zealand signed the Convention on 14 January 1986 and it entered into
force for New Zealand on 9 January 1990. See further Ministry of Foreign
Affairs and Trade, New Zealand Consolidated Treaty List as at 31 December
1996 Part I (Multilateral Treaties) (May 1997) 324.
181.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment 1984, Article 3.1.
182.
See by analogy Chahal v United Kingdom (1997) 23 EHRR 413 at para
80 (ECHR); Ahmed v Austria (1997) 24 EHRR 278 at para 41 (ECHR).
183.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment 1984, Article 22. See further Ministry of Foreign Affairs
and Trade, New Zealand Consolidated Treaty List as at 31 December 1996
Part I (Multilateral Treaties) (May 1997) p 234.