R.P.G. Haines
New Zealand

Hardcopy published by the Legal Research Foundation, Auckland, New Zealand, 1995 as: "The Legal Condition of Refugees in New Zealand". 



The refugee determination procedure in New Zealand

Refugees and legal aid in New Zealand

Justification for legal aid in the refugee determination process

The lawyer in the refugee determination process

The new legal aid regime - concerns



[1]  The primary requirement of any refugee determination process is that it accurately identify refugees.3 The secondary requirement is that the process be both fair and expeditious.

[2]  A sina qua non of these requirements is that the individual refugee claim be clearly articulated, cogently presented and persuasively argued. Members of the legal profession cannot claim a monopoly on these skills. They are, however, better placed than refugee claimants themselves. With few exceptions, immigration consultants are inadequate to the task and suffer the considerable handicap of having no, or at best, little understanding of refugee jurisprudence.

[3]  The case for legal representation of refugee claimants is a very powerful one, though not necessarily self-evident in the New Zealand context where there is a surprising degree of ignorance of the nature of the refugee determination process, the interests at stake and the proper role of the legal profession in assisting the accurate identification of refugees. There is a commensurate lack of understanding of New Zealand's solemn obligation as a State Party to the Refugee Convention not to expel or return (refouler) a refugee to the frontiers of territories where her life would be threatened on account of her race, religion, nationality, membership of a social group or political opinion.4 The provision or withholding of legal aid may directly affect New Zealand's ability to discharge its international obligations.

The refugee determination procedure in New Zealand

[4]  Since January 1991, New Zealand has operated a two-tier system for determining refugee applications. At first instance, the applications are processed within the New Zealand Immigration Service by immigration officers in a specialized section of the Service known as the Refugee Status Branch. Upon receipt of an application the Refugee Status Branch schedules an appointment at which the applicant is interviewed. Interpreters from outside the Immigration Service are provided at no cost to the asylum seeker. The applicant is entitled to be accompanied by a lawyer or other representative who is given the opportunity to make submissions in support of the case. The asylum seeker is subsequently given an opportunity to comment in writing on the interview report compiled by the Refugee Status Branch and upon any prejudicial information held by the Refugee Status Branch.

[5]  Where the application for refugee status is declined there is a right of appeal to the Refugee Status Appeals Authority (the Authority), an independent body presently staffed by practising or recently retired lawyers drawn entirely from outside Government.5 A representative of the UNHCR is ex officio a member of the Authority.

[6]  Appeals proceed by way of a hearing de novo. There is no burden on an appellant to establish that the decision of the Refugee Status Branch is wrong. All issues of law, fact and credibility are at large. The burden of proving the claim to refugee status is nevertheless carried by the appellant.6

[7]  The appellant is interviewed once more and where necessary an independent interpreter is provided by the Authority. The appellant is entitled to be accompanied by a lawyer or other representative who is invited to make submissions both before and after the appellant's evidence is given. The hearing is inquisitorial, not adversarial in nature. All decisions of the Authority are delivered in writing. The Authority considers only whether the appellant is a refugee. It has no jurisdiction to consider immigration or humanitarian issues and in particular, whether the particular individual should be granted a permit under the Immigration Act 1987. This is a decision only the Minister of Immigration or his delegate may make.7

[8]  The number of refugee applications received by the New Zealand Immigration Service in recent years is as follows:8

1987 27
1988 145
1989 330
1990 600
1991 1,200
1992 771
1993 347
1994 423
1995 6839 

[9]  The substantial increases of 1990, 1991 and 1992 were largely attributable to two phenomena. First, after the 4 June 1989 Tiananmen Square massacre, a large number of nationals from the People's Republic of China (PRC) (principally students) who were then in New Zealand applied for refugee status. So did a number of PRC nationals who later entered New Zealand for the purpose of study. Second, in 1988 and 1989, for reasons which are not clear, a visa officer in the New Zealand High Commission, New Delhi, issued visitor visas on a somewhat liberal basis. As a result, a considerable number of individuals (mostly male) from the Punjab came to New Zealand. They were later discovered working in the essentially seasonal farming and orchard industries. Once their permits expired they were processed through the immigration removal procedures, at which point they invariably lodged applications for refugee status based on the deteriorating human rights situation in the Punjab.

[10]  Needless to say, visas are now more difficult to come by at the New Zealand High Commission in New Delhi and the flow of Punjabis into New Zealand has stopped. However, those already in New Zealand must be processed through the refugee determination procedures. The PRC nationals were dealt with in a rather more dramatic manner. On 23 June 1994, the Minister of Immigration announced that Cabinet had approved the granting of residence to all PRC nationals who entered New Zealand on or before 31 March 1992.10

[11]  This had the immediate effect of removing approximately 425 refugee applications from the refugee system.11

[12]  As to approval rates, at the time of the Wilson Report (29 April 1992), the Refugee Status Branch approval rate was approximately 50%.12 However, by the end of 1992, the approval rate had declined to 20%.13 By May 1993, the approval rate had declined even further to approximately 4%.14

[13]  For the same periods, the approval rate on appeal has averaged approximately 20%. In the result, most cases declined by the Refugee Status Branch are appealed.

Refugees and legal aid in New Zealand

[14]  Prior to 1 February 1992, legal aid to refugees was governed by the Legal Aid Act 1969. Under this Act, legal aid was available both for the first instance hearing before the Refugee Status Branch and for the appeal hearing before the Refugee Status Appeals Authority.

[15]  However, the Legal Services Act 1991 which came into force on 1 February 1992 changed the entire legal aid system in New Zealand for both civil and criminal cases. The nature and scope of these changes lie outside the ambit of this paper and are more fully addressed elsewhere.15 What is relevant is that the statute removed legal aid from the first level hearing before the Refugee Status Branch. It is now available only at the appellate stage. Section 19(1)(j) of the Act materially provides:

"Subject to subsections (3) to (5) of this section, civil legal aid may be granted, in accordance with the provisions of this Part of this Act, in any of the following proceedings:
(j) Proceedings before any body (by whatever name called) established by the Government of New Zealand to determine appeals against decisions made by immigration officers (within the meaning of the Immigration Act 1987) and relating to the status of persons as refugees."16
[16]  At the present time the standard grant of legal aid for refugee appeals is approximately NZ$1,500 (inclusive of disbursements).17 The present number of appeals before the Refugee Status Appeals Authority (both those waiting for a hearing and those heard but not yet decided) is 1,502 as at June 1994.18

[17]  Assuming that each appellant is legally aided and further assuming that the standard grant is not varied, the total cost to the taxpayer for providing civil legal aid to all present appellants is approximately NZ$2.25m.

[18]  By way of comparison, total legal aid expenditure in past years is shown in the following table:19

Year Civil Criminal Total
1986  7.3  6.1 13.4m
1991 34.8 16.4 51.2m
1992 49.7 18.7 68.4m
1993 37.0 18.0 55.0m

[19]  The budget for the 1993/94 year is NZ$44.95m, of which NZ$17.39m (approx) is allocated to criminal legal aid and NZ$25.05m (approx) to civil legal aid.20

[20]  The Legal Services Board is unable to supply separate figures for refugee cases21 but claims to be:

"... well aware of the alarming backlog of appeals to the Refugee Status Appeal [sic] Authority that will absorb a growing amount of legal aid funding."22
It is also:
"... investigating alternatives to litigation with a number of areas in mind, one of which is immigration issues."23
[21]  The basis of the claim that there is an "alarming backlog of appeals" to the Refugee Status Appeals Authority is not immediately apparent. Nor is it immediately clear whether the Legal Services Board is aware of the unique factors which combined to produce the large increase in applications in the three-year period 1990 to 1992. As will be seen from the earlier table, the number of new refugee applications has dropped dramatically since then.24 And as mentioned, PRC nationals who arrived in New Zealand prior to 31 March 1992 have been approved for residence. The backlog, such as it is, is clearly a temporary phenomenon and does not provide a sound basis for long-term decision-making. Furthermore, it is difficult to see what "alternatives" to litigation are possible in the context of refugee determination.

[22]  What is of significance from this brief discussion is that since 1 February 1992, refugee claimants have experienced significant difficulties in the legal aid area. Not only have they been deprived of legal aid for the first instance hearing, they now face the prospect of funding cutbacks at the appeal level.

Justification for legal aid in the refugee determination process

[23]  The ultimate justification of legal aid is to be found in the principle of justice and in particular, that justice should be equally accessible to all.

[24]  Article 7 of the Universal Declaration of Human Rights25 declares that:

"All are equal before the law and are entitled without discrimination to equal protection of the law."
[25]  Refugees are, by circumstance, poor and disadvantaged; if their applications fail, the price they pay may be - without exaggeration - loss of liberty or life. They should have the best advice and representation possible.26

[26]  While in the context of criminal legal aid the interests of justice, the means of the individual and the gravity of the offence are specifically enumerated statutory criteria for the grant of legal aid,27 these same criteria are not prescribed in the civil context and are all too often overlooked in the case of asylum seekers.

[27]  Given the special needs of the asylum seeker and the fundamental nature of the non-refoulement obligation, the adoption of a negative attitude to the grant of legal aid would be difficult to understand. As a State Party to the Refugee Convention, New Zealand has shouldered specific obligations both to the international community and to refugees. These obligations are without doubt relevant considerations (in the administrative law sense) in the context of decision-making in this area. See Tavita v Minister of Immigration.28 Yet the same obligations are seldom, if ever, mentioned in the legal aid debate.

[28]  It is also worth remembering that refugee status is declaratory, not constitutive. That is, a person is a refugee within the meaning of the Refugee Convention as soon as she fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which her refugee status is formally determined. Recognition of her refugee status does not therefore make her a refugee, but declares her to be one.29 The right conferred by Article 16 of the Refugee Convention to free access to the Courts of law in New Zealand must be given real meaning and effect.30 Only a narrow and begrudging interpretation would exclude from Article 16 the administrative tribunal whose very raison d'etre is to determine refugee status.31

[29]  To pre-empt the formation of a negative attitude to refugees in the legal aid context, two further points must be made.

[30]  First, the notion that the system is cluttered with so-called manifestly unfounded claims is misconceived. It has been the universal experience of those who have sat on the Refugee Status Appeals Authority that many cases which on the papers appear "manifestly unfounded" or abusive, have turned out, upon a hearing, to be patently well-founded. Conversely, cases which at first sight appear unassailably strong turn out, in the event, to be without substance. The Refugee Status Appeals Authority has firmly rejected the notion of so-called manifestly unfounded claims.32 In this context it is to be noted that last year Canada abandoned the first tier "credible basis" enquiry after it was found that in excess of ninety per cent of all cases satisfied this threshold. It was a waste of resources to continue with a pointless first level enquiry. All cases are now referred to the Immigration and Refugee Board Convention Refugee Determination Division for hearing.

[31]  Second, the grant or refusal of legal aid on the basis of the "likely" outcome of the case is inherently problematical. There are limits to the degree to which the outcome of one case can inform the likely result of another. Human rights conditions in most countries of origin are in a state of flux. A fear which is determined to be not well-founded at one point might later become well-founded and vice versa. Equally, the understanding or knowledge of human rights conditions possessed by the New Zealand decision-maker might change. This has happened in recent times with the Punjab claims. The Refugee Status Appeals Authority initially took the view that in cases involving fear of persecution at the hands of state agents, the option of relocation within India (otherwise known as the internal flight alternative) was available in many (but not all) cases. However, over the past few months, on the basis of new country information, the Refugee Status Appeals Authority has re-assessed the situation and is now less likely to find that the prescribed test for relocation has been satisfied.33

[32]  Were its earlier line of decisions to be used as a means of denying legal aid in like cases, a great injustice would result. Cases which deserve legal aid would be refused. This very situation has already occurred (albeit in a slightly different context), but was fortunately corrected by the Legal Aid Review Authority on appeal.34

[33]  The further and perhaps decisive justification for legal aid in the refugee determination process is that it engages the skill and experience of the legal profession. The lawyer becomes the medium through whom the asylum seeker can communicate, at a meaningful level, with "the system" and vice versa. Without this communication facility, the refugee determination process inevitably becomes less efficient and more expensive. A brief examination of the difficulties encountered by the lawyer in refugee cases highlights the considerable value of any legal aid investment.
The lawyer in the refugee determination process

[34]  The role of the lawyer in the refugee determination process is to assemble, present and argue the claimant's case. This, however, is easier said than done. Formidable obstacles present themselves:

1.    Language

[35]  Client and lawyer deal with each other across a language barrier. Few trained interpreters make themselves available without charge. Fees in the private sector range up to NZ$90 an hour for fully trained interpreters.35 More often than not, unskilled friends or even other asylum seekers are employed. The accuracy of the translations is very much at large. This can later lead to (unjustified) credibility challenges when apparent "discrepancies" and "inconsistencies" emerge.

2.    Trust

[36]  It cannot be assumed that asylum seekers will immediately trust their legal advisor. They are most often suspicious of all authority figures. Trust must be won. This takes time. The legal aid grant must make allowance for this factor.

3. Process of obtaining account of claim

[37]  The process of obtaining a comprehensive and articulate account of the asylum seeker's claim is a time-consuming and arduous task. Yet it is perhaps the most important the lawyer will undertake. Frequently a statement written in the asylum seeker's own language must be translated and then gone through again, picking up threads, filling in gaps and exploring untouched areas. The need for an accurate translation is critical.

4. Documents

[38]  Documents in a foreign language must be translated. If the legal aid grant makes no provision for the very substantial charges levied by the private sector the claimant will be prejudiced. An accurate translation provided by a reputable Auckland translation agency costs NZ$45.00 per 100 words.

5. Forensic reports

[39]  Frequently asylum seekers have been victims of torture or other cruel, inhuman or degrading treatment or punishment. It is essential that a forensic medical report be obtained to confirm the individual's claims. The report is a very important piece of information given that the Refugee Status Appeals Authority has developed a specialized jurisprudence for torture victims.36 Unless funding is available for the obtaining of a forensic report, severe prejudice might result.

6. Jurisprudence

[40]  As anyone familiar with the works of Grahl-Madsen,37 Professor Goodwin-Gill,38 and Professor Hathaway39 will appreciate, refugee jurisprudence is substantial and evolving. In New Zealand, a number of important decisions have been delivered by the Refugee Status Appeals Authority over the past four years.40 Since 1993, immigration and refugee law has been taught at the Faculty of Law, the University of Auckland. Responsible practitioners cannot ignore New Zealand and overseas jurisprudence in the preparation of a case. Research takes time.

[41]  No doubt the list of difficulties can be lengthened. The point being made is that as at the present time a standard grant of legal aid in the sum of NZ$1,500 could hardly be said to be excessive remuneration bearing in mind first, that the grant includes the preparation and filing of a mandatory memorandum41 and second, the half-day appearance itself.
[42]  It can be said unhesitatingly that without the willing and enthusiastic participation of the legal profession, the work of the Refugee Status Appeals Authority would be substantially hindered. If the case is not adequately prepared, the Authority itself has to extract the information and explore every aspect of the claim at the hearing. This substantially increases the length of the enquiry and results in a far greater cost than the legal aid fee that is otherwise "saved".
The new legal aid regime - concerns

[43]  Since the termination of legal aid at first instance, the Authority has noted several developments, the following included:

(1)    There are more cases involving appellants in person. These cases often take twice as long to hear and even then, investigation of the facts is on occasion less thorough than it would have been had the case been properly prepared in advance by a lawyer.

(2)    All too often appellants do not discover their eligibility for legal aid until just prior to the appeal hearing. As a result, lawyers are engaged at the last moment. Adjournment applications in such cases are becoming more frequent, resulting in wasted resources.

(3)    Even in cases where legal aid has been granted, untranslated documents are frequently tendered with the explanation that the legal aid grant is insufficient to cover the cost of obtaining a translation.

(4)    All too frequently forensic medical reports are not obtained due to financial constraints.

(5)    More often than not, little in the way of country of origin material is produced due to the absence of funds to engage in meaningful research.

(6)    Frequently, credibility determinations are hampered to a considerable degree by the fact that:

(a)    Written statements are departed from with the explanation that there has been a translation error.

(b)    As appellants were not represented at the first level hearing, statements made at that hearing may not be a reliable indication of what the individual intended to say.

The list can be lengthened.

[44]  The point being made is that the Refugee Status Appeals Authority, which has no budget, staff or resources of its own, is more often than not now required to spend many more hours than before properly investigating refugee claims. Given its lack of resources and the appellants' similar lack, the risk of arriving at an erroneous decision is substantially increased.

[45]  To translate the foregoing into accounting language, the withdrawal of legal aid at first instance and a parsimonious grant on appeal is false economy. First, because there are now more appeals to the Refugee Status Appeals Authority as a result of the inadequate case presentation at first instance. Second, because appeals become more lengthy due to poor preparation, they cost the State more. The point has been succinctly put (albeit in a different geographical context) by Stefanie Grant:42

"Well-prepared applications are dealt with more quickly, and so more cheaply, by the Home Office. Interviews are expensive; when the case is fully put in the initial papers, they are not needed. If the refugee is properly advised and the case properly prepared, fewer will go to appeal. With competent lawyers acting at an early stage there are enormous savings in the appeal process - and later in the Divisional Court."
[46]  It must not be thought that the legal aid regime under the Legal Services Act 1991 affects only the Refugee Status Appeals Authority. The impact is felt just as much at first instance by the Refugee Status Branch. This was recognized in the Wilson Report:43
"The work of the Refugee Status Officers is, I believe, likely to be made more difficult by recent changes to legal aid. Until the end of January 1992, legal aid was available under the provisions of the Legal Aid Act 1969 for the preparation of applications for refugee status and for appearing for applicants at the interview with the Refugee Status Officer. The Refugee and Migrant Service was therefore able to arrange for applicants to obtain legal advice from lawyers experienced in the field. On 1 February 1992 however the Legal Services Act 1991 came into force. The effect of section 19(1)(e)(v) and (j) is that legal aid is no longer available for refugee status determination at the primary level. Unless advice is available to applicants from another source, the consequence will be, I believe, that more work is required of Refugee Status Officers because they will be required to draw out from the applicant much material which would previously have been extracted by the lawyer acting for the applicant and placed before the Immigration Service in a readily intelligible form. Officers will also face the difficulty which is inherent in combining the role of assisting the applicant and then adjudicating on his or her application."
[47]  The Wilson Report recommended that a non-governmental organization known as the Refugee and Migrant Commission, or at least one of its agencies known as the Refugee and Migrant Service (RMS) receive government funding in order to provide a refugee advocacy service:
"Fourthly, to compensate at least in part for the unavailability of legal aid, the Refugee and Migrant Service should receive additional funding of say $200,000 per year to enable it to provide an advice and support service for applicants preparing for and appearing at an interview. That sum should be increased by say $25,000 in the first year to cover start-up costs and training. It should also be reviewed year by year and reduced if the work load decreases. These costs would I think be more than offset by savings to the Immigration Service through having cases well-presented to it and by reduced legal aid expenditure through fewer appeals being argued on legal aid after an application has failed because of inadequate presentation."44
[48]  However, this recommendation has not been implemented and no government funding for a refugee advice and support service has been forthcoming.

[49]  In 1991, the RMS predicted (correctly) that removal of the right to legal aid at the first level of determination would result in a rapid decline in the number of lawyers prepared to represent refugee status applicants prior to appeal. In 1991-92, the RMS Asylum Office dealt with case work for 270 clients of which 246 (91%) were referred to lawyers for legal advice.45

[50]  In 1992-93, the RMS dealt with 106 cases, referring only 44 to lawyers (41%). Sixty-one cases were fully represented by the RMS itself.46

[51]  In the result, the RMS sustained an operating deficit of close to NZ$80,000 in the 1992-93 year. It is understood that the operating deficit for the 1993-94 year is NZ$108,656.

[52]  In the absence of government funding for the Asylum Office, it is difficult to see how the RMS can continue to sustain deficits of this size.


[53]  The withdrawal of legal aid for hearings at first instance before the Refugee Status Branch has not been in the interests of justice and has had the effect of transferring costs from one part of the system to the other (the appellate level). The attempt by one non-governmental organization to fill the gap has been at considerable cost to its meagre resources.

[54]  The debate concerning legal aid for asylum seekers will not be advanced at a meaningful level until account is taken of the fact that the Refugee Status Branch and the Refugee Status Appeals Authority comprise a unique body charged with the responsibility of ensuring that New Zealand honours its treaty obligations under the Refugee Convention. It is an onerous responsibility which has no parallel in New Zealand domestic law. An erroneous decision, by the very nature of the subject matter, carries with it the real chance of the refugee being subjected to persecution, torture or death. The interests of justice alone require that those making decisions on refugee status be assisted by the legal profession. The corollary is that legal aid at a realistic level must be made available at both levels of decision-making.


1. The author of this paper is also a member of the New Zealand Refugee Status Appeals Authority. The opinions in this paper are the personal views of the author and should not be taken as in any way reflecting the position of the Refugee Status Appeals Authority.

2. This is a slightly amended version of a paper first presented at the International Bar Association 25th Biennial Conference, October 1994, Melbourne.

3. That is, persons who satisfy the Inclusion Clause requirements of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The New Zealand Government acceded to the 1951 Refugee Convention on 30 June 1960 (New Zealand Treaty Series 1961 No. 2) and to the 1967 Protocol on 6 August 1973 (New Zealand Treaty Series 1973 No. 21). In this paper the Refugee Convention and Protocol will be referred to as "the Refugee Convention".

4. Refugee Convention Article 33 provides:

"Article 33.
Prohibition of expulsion or return.

(1) No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

5. The constitution and powers of the Refugee Status Appeals Authority are contained in what are described as Terms of Reference approved by Cabinet. There have been three successive Terms of Reference. In this paper it is intended to refer to the Terms of Reference which came into force on 30 August 1993.

6. See Refugee Appeal No.523/92 Re RS (17 March 1995) 10-27.

7. Terms of Reference, Part II, para 5(3). See also Refugee Appeal No. 2286/94 Re BC (12 July 1995) 3.

8. The statistics for the years 1987 to 1991 appear in W M Wilson, Report to the Rt. Hon. W.F. Birch, Minister of Immigration, on the Process of Refugee Status Determination (1992) 4. The figures for 1992 to 1994 are published by the Ministry of Foreign Affairs & Trade in Human Rights in New Zealand: New Zealand's Third Report to the United Nations Human Rights Commission on implementation of the International Covenant on Civil and Political Rights (Information Bulletin No. 54, June 1995) 50.

9. Letter to author from New Zealand Immigration Service dated 18 January 1996.

10. Media release of Minister of Immigration, 23 June 1994. The requirements specified by this policy are set out in Information Circular 94/11 (24 June 1994)

11. This figure comprises approximately 347 applications at Refugee Status Branch level and approximately 80 appeal cases.

12. W M Wilson, Report to the Rt. Hon. W.F. Birch, Minister of Immigration, on the Process of Refugee Status Determination (1992) 11.

13. John Matheson, "80% of refugee pleas rejected", Sunday Star, 3 January, 1993.

14. Margot Staunton, "Figures show asylum given rarely", NZ Herald, Thursday, 3 June, 1993.

15. John Rowan, "Legal Aid in New Zealand" [1993] NZLJ 396; Rowan & Harding, Brookers Legal Services (1993).

16. Section 19(3) and (5) of the Legal Services Act 1991 have no relevance in the present context.

17. Some grants do exceed this figure and disbursements (e.g., for translations and medical reports) are also sometimes allowed as an additional sum.

18. The Capital Letter, Vol 17 No 20 (7 June 1994) 3.

19. These figures are taken from Phillipa Stevenson, "Legal aid scheme put under pressure", NZ Herald, Wednesday, 23 March, 1994 and are to be read with the explanation offered by the Executive Director of the Legal Services Board, Dave Smith, in "Those Legal Aid Figures", Northern Law News, 29 July, 1994, 3.

20. Letter from Legal Services Board dated 18 August 1994.

21. Ibid.

22. Ibid.

23. Ibid.

24. This is in large measure due to very efficient border controls in the form of visa and transit visa regimes which specifically target citizens of refugee-producing countries. There are also severe carrier sanctions. The nature, extent and justification for these control measures lies outside the scope of this paper.

25. Article 14(1) of the International Covenant on Civil and Political Rights 1966 refers to the principle that "All persons shall be equal before the courts and tribunals".

26. Stefanie Grant, "Refugees and Rhetoric" (1991) 141 New Law Journal 961, 962.

27. Legal Services Act 1991, s 7(1)(a) and (b) and (2)(a).

28. [1994] 2 NZLR 257 (CA). See also Governor of Pitcairn & Associated Islands v Sutton [1995] 1 NZLR 426, 430 (CA).

29. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status para 28.

30. Article 16 provides:

Access to Courts
1.    A refugee shall have free access to the courts of law on the territory of all Contracting States.

2.    A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.
3.    A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.

31. The possible application of Aritcle 16 of the Convention in the refugee determination context is discussed by Thomas Spijkerboer in Higher Judicial Remedies, a paper presented at the International Judicial Conference on Asylum Law and Procedures, London, 30th November-3rd December 1995 (publication forthcoming). See also R v Secretary of State for the Home Department, Ex parte Shala Jahangeer [1993] Imm AR 564, 566 (QBD).

32. Refugee Appeal No. 1/92 Re SA (30 April 1992) 12.

33. The test for relocation is set out in Refugee Appeal No. 135/92 Re RS (18 June 1993) 25 and Refugee Appeal No. 523/92 Re RS (17 March 1995).

34. See Decision 76/94 [1994] NZAR 284 (7 March 1994).

35. Grant Bradley, "Interpreters' training feared to be lacking", NZ Herald, Tuesday, April 5, 1994.

36. Refugee Appeal No. 135/92 Re RS (18 June 1993).

37. The Status of Refugees in International Law Vols 1 and 2 (1966).

38. The Refugee in International Law (1983).

39. The Law of Refugee Status (1991).

40. A computerized database of Appeal Authority decisions has been created. As at 30 June 1995, approximately 1,400 case abstracts were held on this database.

41. See RSAA Practice Note 1 of 1991.

42. "Refugees and Rhetoric" (1991) 141 New Law Journal 961, 962.

43. W M Wilson, Report to the Rt. Hon. W.F. Birch, Minister of Immigration, on the Process of Refugee Status Determination (1992) 11.

44. Ibid, 16.

45. These figures are taken from the Refugee and Migrant Service Annual Report 1992-93 8.

46. Ibid, 8.