Australian and New Zealand Refugee Law
- A Comparison

Jeanne Donald, Solicitor, Ryken & Associates2




First and Second Level Determination
Further Appeals/Judicial Review
Access to Legal Representation
Linguistic Testing
Persons Granted Refugee Status



Refugees Sur Place
Membership of a Particular Social Group
Non-political Crime


[1] The reference in the title of this paper is of course to Fred Dagg’s famous anthem.  Fred Dagg (aka John Clarke) seemed like a suitably trans-tasman phenomenon amenable to understanding in both jurisdictions under consideration in this paper.  The “we” in the title refers to those members of the bar practising refugee law in New Zealand.  The aim of the paper is to highlight the differences between Australian and New Zealand refugee law, but hopefully it will also provoke the reader to consider for him or herself what the law should be, and encourage advocacy for change in both jurisdictions.

[2] This paper presumes that the reader is familiar with Australian refugee law and unfamiliar with New Zealand refugee law.  As such, the descriptive aspects of the paper are heavily weighted to the New Zealand determination system and interpretation of the definition.

[3] Before considering the law, it is worth highlighting some basic differences and similarities between the two jurisdictions.  These include geography, population size, political/legal system and migration flows.  Australia is a much larger landmass than New Zealand and because of its geographical position is more vulnerable to the arrival of spontaneous asylum seekers by sea.  Australia has five times as many inhabitants as New Zealand, but a very similar per capita net migration rate.3  Its GDP per capita is US$23,200.00.  New Zealand’s GDP per capita is US$17,700.00.4  Australia is a federal state; New Zealand is a unitary one.  According to UNHCR statistics during the period 1999 - 2001, New Zealand received 4,794 new claims for asylum and Australia received 34,752 new claims for asylum.5  However, the disparity is less apparent when those figures are considered in relation to population size.  New Zealand received 1.3 applications per 1,000 inhabitants while Australia received 1.8 applications per 1,000 inhabitants.

[4] When considering the refugee law in place in each country the most obvious difference is one of relative simplicity (New Zealand) versus mind-numbing complexity (Australia).6  The other fundamental difference is that Australia has taken the extraordinary step of defining, by means of legislation, various elements of the refugee definition.7  Indeed, it is arguable that the legislation in question seeks to amend (or narrow) the definition as it is to apply in Australia.

[5] Below, the paper compares Australia and New Zealand’s refugee determination processes, their approaches to detention of refugee claimants and their interpretation of the refugee definition.


First and Second Level Determination

[6] At first glance, the Australian and New Zealand refugee determination processes look very similar.  In both countries, an initial determination is made by an officer of a government department.  In Australia, this is the Department of Immigration and Multicultural Affairs (DIMA), and in New Zealand it is the Refugee Status Branch (RSB) of the New Zealand Immigration Service (NZIS).  If the claimant is declined, he or she has a right of appeal, de novo, to an independent tribunal.  In Australia, this is the Refugee Review Tribunal (RRT) and in New Zealand it is the Refugee Status Appeals Authority (RSAA).  However, the similarities between the two determination systems are entirely superficial.

[7] The RSB interviews all applicants for refugee status; an interview is on average 3-6 hours long.  The interviewing officer then prepares a written interview report and the claimant is entitled to comment on that report in writing, and provide relevant country information and submissions.  The officer then makes a written decision.  Where a claim is declined, the claimant may appeal to the RSAA.

[8] Members of the New Zealand RSAA must be barristers or solicitors who have held practising certificates for at least five years of have other equivalent or appropriate experience.  Appellants receive an oral hearing, except where the Authority determines that the appeal is prima facie manifestly unfounded or clearly abusive.  The Authority’s oral hearings are usually a half-day to two days in length.  All of the Authority’s decisions are made in writing.

[9] A number of RSAA decisions are informally recognized as “precedent” decisions in that they set out at length the Authority’s interpretation of various aspects of the refugee definition.  Note that in Australia the RRT has the option of referring an RRT-reviewable decision to the Administrative Appeals Tribunal when the decision involves an important principal or issue of general application.8

Further Appeals/Judicial Review

[10] There is no appeal from a decision of the RSAA.  Such decisions are, however, subject to judicial review.  While there is no privative clause in New Zealand’s Immigration Act, there is a requirement that review proceedings be commenced within three months of the decision being reviewed, unless the High Court by reason of special circumstances allows further time.9

[11] In contrast, section 474 of the Australian Migration Act is a privative clause of an extraordinary breadth.  Section 474 applies to inter alia all decisions of the RRT made subsequent to 2 October 2001.  The effect of s 474 is that decisions may only be reviewed on the grounds of mala fides (bad faith), narrow jurisdictional error, or exceeding constitutional limits.10  It remains to be seen what effect s 474 will have in practice on judicial review of RRT decisions.

[12] Apparently, the quantity and quality of Federal Court litigation of refugee status matters in Australia has been an ongoing problem and is one of the reasons for the privative clause discussed above.  New Zealand has not to date encountered this problem.  One can speculate that the following factors may provide some explanation for this difference between the two jurisdictions:

(a) the availability of legal representation at the RSB and RSAA.

(b) the requirement to certify merit for the purposes of legal aid (see paragraph 14 below).

(c) the availability of an administrative appeal against removal on humanitarian grounds.

Access to Legal Representation

[13] Two factors that affect access to legal representation are the availability of legal aid and the detention of refugee claimants.  Obviously, Australia’s practice of detaining asylum seekers at geographically remote locations must impact on who, if anyone, represents them.  Also, legal aid is not available for judicial review of RRT decisions.

[14] In New Zealand, legal aid is available at all stages of the refugee determination process, including judicial review.  The decision to grant aid is based on the applicant’s income and assets, however, to make a legal aid application, a refugee claimant’s legal representative must certify that the claim, appeal, or review proceedings have merit (ie a reasonable chance of success).

Linguistic Testing

[15] Linguistic testing as evidence of an asylum seeker’s national origins has been used in Australia for some time.  On occasion, it has been roundly criticized by the RRT.  Linguistic testing has only very recently been introduced in New Zealand.  The RSAA currently has a case before it that will afford the Authority its first opportunity to comment on the practice.  A decision is expected shortly.

Persons Granted Refugee Status

[16] Successful refugee claimants in Australia are granted a “protection visa”.  In New Zealand, they are simply granted refugee status (whether by the RSB or RSAA) and a decision as to the grant of temporary and residence permits remains the responsibility of the Visas and Permits branch of the NZIS.  As a general rule, persons granted refugee status may apply for, and will be granted, residence of New Zealand subject to the usual health and character requirements of residence policy.


[17] Australia operates a system characterized as mandatory detention of unauthorized arrivals.  In New Zealand, detention of asylum seekers has been the exception rather than the norm.  There have, however, been significant changes since 11 September 2001.

[18] In New Zealand, it is now commonplace for asylum seekers who arrive without travel documents to be detained, either at a special refugee detention centre or in a prison remand facility.  They are detained pursuant to a warrant of commitment issued under s 128 of the Immigration Act.  The warrant must be renewed by a District Court Judge periodically, however, (on one interpretation of the law), the Judge has no discretion to release a detainee.

[19] Many detainees are released, though, by means of an administrative review process undertaken by the Border and Investigations Branch of the New Zealand Immigration Service.  This process focuses on confirming identity, security issues, and the merits/bona fides of the refugee claim.  There is a strict timeframe for the determination of refugee claims and appeals when the claimant is detained.  Recent experience suggests that detainees are held for anywhere between a few weeks to several months.


[20] Australia has recently put in place legislation dealing with key elements of the Convention refugee definition and this has limited the relevance of New Zealand case law in the Australian jurisdiction and vice versa.  The case law remains relevant to the extent that it records relevant country information and makes findings of fact in relation to the conditions that subsist in an individual’s home country.  This section will focus primarily on contrasting the Australian legislative provisions with the New Zealand case law.

[21] In New Zealand, s 129D of the Immigration Act 1987 provides that in carrying out their functions under the Act, RSB officers and the RSAA are to act in a manner that is consistent with New Zealand’s obligations under the Refugee Convention.  The text of the Convention is set out in a schedule to the Act.  In New Zealand, the definition of a refugee is that found in Article 1 of the Refugee Convention.  This has not been interpreted, amended, narrowed or enlarged by legislation, regulations, guidelines, or policy.  Rather, the bulk of New Zealand’s jurisprudence regarding interpretation of the definition is to be found in decisions of the RSAA.  Those decisions are publicly available in an edited “for publication” version.11  Decisions of the RSB are not publicly available.  There are a relatively limited number of High Court and Court of Appeal decisions dealing with the refugee definition.


[22] Section 91R(1) of the Migration Act 1958 provides inter alia that Article 1A(2) of the Convention definition as amended by the Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.”

The Act then goes on in s 91R(2) to offer specific instances of “serious harm” as it is used in s 91R(1).  Those instances are as follows:
(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.”

[23] The leading RSAA case dealing with the meaning of persecution is Refugee Appeal 71427/99 [2000] NZAR 545; [2000] INLR 608 at [51].  In that decision, the Authority refers in particular to the decision of the Canadian Supreme Court in Ward and the academic writings of James C Hathaway.  The Authority states:
[R]efugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard.  That is, core norms of international human rights law are relied on to define forms of serious harm within the scope of persecution.  In his text at 106, Professor Hathaway initially identified the relevant core human rights as those contained in the so-called International Bill of Rights comprising the Universal Declaration of Human Rights, 1948 and by virtue of their almost universal accession, the International Covenant on Civil and Political Rights, 1966 and the International Covenant on Economic, Social and Cultural Rights, 1966.  However, for the reasons Professor Hathaway has more recently and persuasively given, to the International Bill of Rights there should now be added the Convention on the Elimination of All Forms of Racial Discrimination, 1966 (CERD), the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) and the Convention on the Rights of the Child, 1989 (CRC).
The decision then goes on to reject cultural relativism,12 to explicitly recognize the importance of cumulative threats to human rights in the context of refugee claims based on discrimination, and states that “the determination whether the treatment feared in any particular case amounts to persecution will involve normative judgments going beyond mere fact finding”.


[24] Section 91R(1) of the Migration Act 1958 provides inter alia that Article 1A(2) of the Convention definition as amended by the Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution.
The test of “causation” or “nexus to a Convention reason” adopted at s 91R(1) appears on an ordinary reading of the words “essential and significant” to be a very high one.

[25] In Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [112] (approved by Kirby J in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (11 April 2002) at [120]), the RSAA concluded that:13

Accepting as we do that Persecution = Serious Harm + The Failure of State Protection, the nexus between the Convention reason and the persecution can be provided either by the serious harm limb or the failure of State protection limb.  This means that if a refugee claimant is at real risk of serious harm at the hands of a non-state agent (eg husband, partner or other non-state agent) for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention ground, the nexus requirement is satisfied.  Conversely, if the risk of harm by the non-state agent is Convention related, but the failure of state protection is not, the nexus requirement is still satisfied.  In either case the persecution is for reason of the admitted Convention reason.  This is because “persecution” is a construct of two separate but essential elements, namely risk of serious harm and failure of protection.  Logically, if either of the two constitutive elements is “for reason of” a Convention ground, the summative construct is itself for reason of a Convention ground.  See Shah 646C-D, 648C, 653E-G and 654D.
However, the Authority explicitly left open the question of what is the appropriate causation test in the refugee context.14  This issue has been the subject of Michigan Guidelines15 and it is likely that the Authority will revisit the issue in the future.

[26] The Michigan Guidelines on Nexus to a Convention Ground take a very different approach from that set out in s 91R(1)(a) of the Migration Act.  Paragraphs 6 to 10 of the Guidelines dealing with the nature of the required causal link are very helpful, but it is paragraphs 11 to 18 that are directly on point regarding the standard of causation and evidence of causation.  Paragraph 13 states:

In view of the unique objects and purposes of refugee status determination, and taking account of the practical challenges of refugee status determination, the Convention ground need not be shown to be the sole, or even the dominant, cause of the risk of being persecuted.  It need only be a contributing factor to the risk of being persecuted.  If, however, the Convention ground is remote to the point of irrelevance, refugee status need not be recognized.
Clearly, there is a gulf between the test posited in the Guidelines, namely that the Convention ground must be “a contributing factor to the risk of being persecuted” and that posited in s 91R(1)(a), namely that the Convention ground must be the “essential and significant reason” for persecution.

Refugees Sur Place

[27] Section 91R(1) of the Migration Act 1958 provides that in determining a refugee claim, the claimant’s conduct in Australia shall be disregarded unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
[28] The RSAA’s position regarding sur place claims is similar in that it requires that the appellant have acted in good faith.  In Refugee Appeal No.2254/94 (21 September 1994) the Authority adopted Grahl-Madsen’s classification which distinguishes the following three categories of conduct:
(1) Actions undertaken out of genuine political motives.

(2) Actions committed unwittingly, or unwillingly (e.g. as a result of provocation), but which nevertheless may lead to persecution “for reasons of” (alleged or implied) political opinion.

(3) Actions undertaken for the sole purpose of creating a pretext for invoking fear of persecution.

But, the Authority went on to observe that:
[T]he good faith principle must be applied with caution, not zeal. The precise application of Grahl-Madsen’s third category must be determined on a case-by-case basis. It may be that a balancing exercise is called for and a careful assessment made of all the circumstances, including the degree of bad faith, the nature of the harm feared and the degree of risk.  […]  We anticipate that only in clear cases (and the present case is undoubtedly one) will an asylum seeker fall outside of the Refugee Convention by reason of an absence of good faith.
Membership of a Particular Social Group

[29] Section 91S of the Migration Act 1958 essentially states that a family relationship may not found a refugee claim based on persecution for membership of a particular social group where the “primary” family member is at risk of for a non-Convention reason.  It is generally accepted that a family may constitute a “social group” for the purposes of the refugee definition.  The distinction being made in the Australian legislation is between a claim by a person at risk because she is related to an individual at risk for a Convention reason, and a person at risk because she is related to an individual at risk for a non-Convention reason.  The wording of s 91S is as “torturous” as the foregoing explanation.  It would be fair to say that this issue remains at large, or at least arguable, in the New Zealand jurisprudence.

Non-political Crime

[30] Section 91T(1) of the Migration Act 1958 provides that Article 1F(1)(b) of the Convention has effect as if the reference to “a non-political crime” were a reference to “a crime where the person’s motives for committing the crime were wholly or mainly non-political in nature”.  Subsection (3) of s 91S states that Article 1F(1)(b) has effect as if the reference to a non-political crime “included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act”.  Essentially, s 91S makes the motives of the offender determinative of whether the offence in question is a political offence. It also ensures that an individual who is “extraditable”, (at least to the extent that they are deemed not to be a political offender by s 5 of the Extradition Act), is excluded from refugee status.  However, it is important to recognize that s 91S(3) amends the meaning of “non-political crime” in Article 1F(1)(b) of the Convention as it is to apply in Australia, regardless of whether an individual is extraditable, or whether the issue of extradition even arises.

[31] Paragraph (a) of the definition of a political offence in the Extradition Act excludes conduct that is prohibited by a number of UN Conventions.  Paragraph (b) excludes conduct that is deemed by a multilateral extradition treaty and regulations made pursuant to the paragraph not to be a political offence.  Paragraph (c) excludes attacks on the head of state or head of government of a country or a member of his or her family.  Paragraph (d) excludes:

(d) an offence constituted by taking or endangering, attempting to take or endanger or participating in the taking or endangering of, the life of a person, being an offence:
(i) committed in circumstances in which such conduct creates a collective danger, whether direct or indirect, to the lives of other persons; and

(ii) declared by regulations for the purposes of this paragraph not to be a political offence in relation to the country.

[32] In New Zealand, and indeed in a number of other jurisdictions, the approach to the meaning of “non-political crime” is significantly more nuanced and complex than that posited in s 91S(1).  Certainly, the motive for the crime is by no means the only factor considered in most jurisdictions.  By way of example, the RSAA’s dicta in Refugee Appeal No. 1222/93 (5 August 1994), where the Authority adopted the test found in Goodwin–Gill’s text, The Refugee in International Law, is illuminating.  The passage in question states:
The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.
[33] The reference in the Migration Act to the definition of a political offence in section 5 of the Extradition Act seems extraordinary given the different nature of extradition obligations and the obligation to give refuge.  Refugee law and the law of extradition do not play identical roles in international law, and non-extradition and a grant of refugee status are not identical remedies. As Justice Hugessen observed in Gil, "[i]t is one thing to refuse to return a political assassin; it is quite another thing to welcome him with open arms.”16  Non-extradition of political offenders is based not only on the belief that they will receive discriminatory treatment if returned, but also on the principle of non-intervention in the affairs of the state where the offense was committed.


[34] For those members of the New Zealand bar who practice refugee law in a jurisdiction where the bulk of refugee jurisprudence is made by a specialist administrative tribunal, the Australian decision to effectively legislate changes to the Refugee Convention definition seems extraordinary.  It remains to be seen how the Australian legislative provisions will effect that country’s determination of refugee claims in practice.  However, it is arguable that:

(1) the Australian legislative provisions seem to be primarily aimed at narrowing the definition;

(2) in the circumstances, it is questionable whether Australia is in fact effectively resiling from its Convention obligations; and

(3) the decision to legislate change in this fashion is contrary to the trend in other jurisdictions to harmonize interpretation of the definition in various asylum countries.


1. Fred Dagg (aka John Clarke).

2. This paper was prepared for, and presented at, a seminar given by David Ryken, principal of Ryken and Associates, barristers and solicitors, in conjunction with George Lombard Consultancy on 12 April 2002 in Sydney, Australia.

3. CIA World Fact Book 2001.

4. CIA World Fact Book 2001.

5. UNHCR Website.

6. The Australian Migration Act 1958 has 507 sections.  The New Zealand Immigration Act 1987 has 151 sections.  The comparison is overly simplistic, but the point remains a valid one.

7. Migration Legislation Amendment Act (No. 6) 2001.

8. Section 443 of the Migration Act 1958.

9. Section 146A of the Immigration Act 1987.

10. See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 for the limited grounds of judicial review available where a privative clause is in effect.

11. Many of the Authority’s decisions are available on-line at: http://www.refugee.org.nz/ (known as RefNZ).  This site, set up and maintained by the Rodger Haines QC, Deputy Chairperson of the RSAA, is an invaluable source of case law, statistics and reference material.

12. “[T]he universality of the International Bill of Rights, CERD, CEDAW and the CRC will not permit social, cultural or religious practices in a country of origin from escaping assessment according to international human rights standards.”

13. Ibid, para 112.

14. Refugee Appeal No. 71427/99 [2000] NZAR 545; [2000] INLR 608 at [115].

15. These guidelines result from a colloquium attended by academics from several  jurisdictions and are published by the University of Michigan, School of Law, Program in Refugee and Asylum Law and are available at: http://www.refugeecaselaw.org/Refugee/program.htm#guideline

16. Gil v Canada (Minister of Employment and Immigration) [1995] 1 FC 508, at 517-518 (FCA).