Auckland District Law Society

SEMINAR

A BRIEF

INTRODUCTION

TO NEW ZEALAND

REFUGEE LAW

Presenter: Rodger Haines QC
Auckland - 22 July 1999

Items marked # are available in full text format on the RefNZ web site: www.refugee.org.nz

INDEX

THE REFUGEE DETERMINATION PROCESS
A LIMITED INQUIRY
ONUS OF PROOF
STANDARD OF PROOF
NATURE OF APPEAL TO RSAA
STANDARDS OF FAIRNESS
CONFIDENTIALITY
PARALLEL IMMIGRATION APPLICATIONS - S129U
NON-REFOULEMENT

THE REFUGEE CONVENTION

ARTICLE 1A - THE DEFINITION OF A REFUGEE

INCLUSION - CONSTITUENT ELEMENTS

WELL-FOUNDED

PERSECUTION
MEANING
AGENTS OF PERSECUTION
GENDER AND PERSECUTION
STATE PROTECTION AND REGIONALIZED FAILURE TO PROTECT

CONVENTION REASONS
RACE
RELIGION
NATIONALITY
MEMBERSHIP OF A PARTICULAR SOCIAL GROUP
WOMEN AND PARTICULAR SOCIAL GROUP
POLITICAL OPINION

REFUGEES SUR PLACE

FORMULATION OF THE INCLUSION CLAUSE ISSUES

CESSATION

EXCLUSION
ARTICLE 1F(a) WAR CRIMES, CRIMES AGAINST PEACE, HUMANITY
ARTICLE 1F(b) SERIOUS NON-POLITICAL CRIME
ARTICLE 1F(c) ACTS CONTRARY TO PURPOSES/PRINCIPLES OF THE UN

A BRIEF INTRODUCTION TO NEW ZEALAND REFUGEE LAW

THE REFUGEE DETERMINATION PROCESS
1. While the Immigration Amendment Act 1999 has placed the refugee status determination procedures on a statutory footing, it has not altered the fundamentals: A two tiered system in which the only enquiry is whether the claimant is a refugee. The first instance decision is taken by a refugee status officer (RSO). 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: s 129Q(5). 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: s 146A(1) Immigration Act 1987.

A LIMITED INQUIRY

2. Refugee Issues are not immigration issues

RSO	s 129E	No RSOcan be employed in considering applications for permits or in administering the removal provisions in Part II of the Act
RSO	s 129K	No claim for refugee status can be made by a New Zealand citizen, the holder of a residence permit or a person who is exempt
RSO	s 129W	Immigration matters not within function of RSO
RSAA	s 129W	Immigration matters not within function of RSAA

ONUS OF PROOF

3. 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 decision-maker before the claim is determined. The decision-maker 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 only on the basis of the information, evidence and submissions provided by the claimant:

RSO s 129G(5)

RSAA s 129P(1)

#Refugee Appeal No. 523/92 Re RS (17 March 1995) 17-22

STANDARD OF PROOF

4. The requirement that a refugee claimant establish a well-founded fear of persecution implies a standard of proof less than the civil standard of balance of probabilities. A fear is well-founded when there is a real chance of persecution: #Refugee Appeal No. 523/92 Re RS (17 March 1995) 23-26.

NATURE OF APPEAL TO RSAA

5. Appeals to the RSAA are by way of re-hearing de novo. There is no onus on an appellant to show that the decision of the RSO is wrong: #Refugee Appeal No. 523/92 Re RS (17 March 1995) 10-15.

STANDARDS OF FAIRNESS

6. The rules of fairness must be observed by RSOs and the RSAA. See Khalon v Attorney-General [1996] 1 NZLR 458, 463 (Fisher J):

(a) The RSAA [and a RSO] performs a function which requires it to observe natural justice in general;

(b) It is a fundamental requirement of natural justice that a party be given a reasonable opportunity to present his or her case with knowledge of the case which he or she has to meet;

(c) The way in which that fundamental requirement is implemented will depend upon the context including the nature of the function which the decision-maker is called upon to perform and the circumstances of the particular case which has come before that decision-maker;

(d) In refugee cases only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake;

7. Whether warning of an adverse finding of credibility must be given, see Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J).

The circumstances in which the RSAA is under a duty to investigate or make enquiry were considered in A v Refugee Status Appeals Authority (High Court, Auckland, CP310/98, 6 November 1998, Nicholson J).

CONFIDENTIALITY

8. The very nature of the refugee inquiry demands confidentiality. There is now a statutory obligation to maintain confidentiality. See s 129T Immigration Act 1987.

PARALLEL IMMIGRATION APPLICATIONS - S 129U

9. From 1 October 1999, refugee status claimants who are granted a temporary permit may not, before or after expiry of the temporary permit:

(a) Apply for a further temporary permit or for a permit of a different type;

(b) Request a special direction;

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. See s 129U(3).

The right to appeal to the Removal Review Authority under Part II is unaffected. See s 129U(4).

NON-REFOULEMENT

10. Non-refoulement obligation is statutorily enshrined in s 129X. Note that it applies not only to persons who are 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. See further #Haines, "International Law and Refugees in New Zealand" [1999] NZ Law Review 119, 130.

THE REFUGEE CONVENTION

11. The Refugee Convention has not been incorporated into New Zealand domestic law. All that the Immigration Amendment Act 1999 does is:

(a) To require RSOs and the RSAA "to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention". See s 129D(1);

(b) To reproduce the text of the 1951 Convention and 1967 Protocol in the Sixth Schedule;

12. The word "refugee" is defined neither in the principle Act nor in the Immigration Amendment Act 1999.

The definition is to be found in the Refugee Convention itself.

13. The Convention has two basic components:

(a) The first component prescribes the duties owed by refugees to the country of refuge, namely to conform to its laws and regulations as well as to measures taken for the maintenance of public order. See Article 2;

(b) The second (and major) component prescribes the duties owed by State Parties to refugees. These obligations are set out in Articles 3 to 34.⁽¹⁾

14. The definition of who is a refugee is contained in Article 1 of the Convention. It contains three components:

Inclusion clause -

Article 1A(1) - "statutory refugees"

Article 1A(2) - definition

Cessation clause -
Article 1C - circumstances where there is a resumption of protection.

Exclusion clauses -

Article 1D - Palestinians.

Article 1E - residence (not citizenship) but with rights of nationals.

Article 1F - crimes against peace or humanity, war crimes - serious non-political crime - acts contrary to the purposes and principles of the UN.

ARTICLE 1A - THE DEFINITION OF A REFUGEE

15. Article 1A, in its original form provided:

[The words in italics are not part of the text of the Convention.]

Article 1 - definition of the term "refugee"

A For purposes of the present Convention, the term "refugee" shall apply to any person who:

Statutory refugees

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;

Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;

Convention refugees

(2) [As a result of events occurring before 1 January 1951 and]⁽²⁾ owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence [as a result of such events],⁽³⁾ is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

B (1) For the purposes of this Convention, the words "events occurring before 1 January 1951" in Article 1, Section A, shall be understood to mean either:

(a) "events occurring in Europe before 1 January 1951" or

(b) "events occurring in Europe or elsewhere before 1 January 1951"

and each contracting state shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.

(2) Any contracting state which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary-General of the United Nations.

16. The words in square brackets were deleted as a result of the 1967 Protocol which had the effect of removing from Article 1A(2) both the time line (events occurring before 1 January 1951) and the geographic limitation (Europe/elsewhere).

17. So-called statutory refugees, ie, refugees within the meaning of Article 1A(1) are rarely, if ever encountered. This category of refugees will not be addressed.

The result is that in New Zealand (as in other jurisdictions) refugee determination centres on the question whether the claimant meets the definition contained in Article 1A(2).

INCLUSION - CONSTITUENT ELEMENTS

18. The constituent elements of the Article 1A(2) inclusion clause can be easily, if somewhat mechanically, extracted. They have, however, been given a dynamic transformation by Professor James C Hathaway in his seminal text, The Law of Refugee Status (Butterworths, Toronto, 1991). The table which follows illustrates:

REFUGEE DEFINITION - CONSTITUENT ELEMENTS

ANALYTICAL APPROACH	CONCEPTUAL APPROACH
The Convention	Hathaway
1. Well-founded fear	1. Genuine risk
2. Persecution	2. Serious harm for which the state is accountable (alternatively: failure of the home state to protect basic human rights)
3. Reasons of: race religion nationality membership of a particular social group political opinion	3. Nexus (link) to civil or political status
4. Outside the country of origin	4. Alienage
5. Unable or unwilling to avail protection Different requirements for: - persons of single nationality - " " more than one nationality - " " no nationality, ie, statelessness
6. Cessation and exclusion clauses	5. Needs and deserves protection (alternatively: exceptions from the asylum state's duty of protection).

WELL-FOUNDED

19. The issue is not whether the claimant fears persecution. Rather, the issue is whether there is, objectively, a real risk of harm. The test whether a fear is well-founded is an objective test: #Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) 11-15.

20. As to when a fear is (objectively) well-founded, the test is whether there is a real chance, as opposed to a remote possibility, of the anticipated harm occurring: #Refugee Appeal No. 523/92 Re RS (17 March 1995) 22-26.

21. The assessment is forward-looking.

The Refugee Convention protects people not from past harms but from persecution in the future.

It is therefore not enough to establish past persecution: #Refugee Appeal No. 70366/96 Re C (22 September 1997) 17-33.

It does not follow, however, that past persecution is irrelevant in assessing the risk of future persecution. It is unquestionably a relevant matter in determining whether there is a real chance of persecution in the future.

22. The relevant date for the assessment of refugee status is the date of the decision: #Refugee Appeal No. 70366/96 Re C (22 September 1997) 33-39.

PERSECUTION

MEANING

23. Persecution is not defined in the Refugee Convention.

Some countries, notably Australia, resort to dictionary definitions. This is unhelpful as synonyms are inevitably substituted for the language of the Convention. It is also unhelpful to try to define that which itself is part of a definition.

24. The New Zealand approach has been to adopt the more workable conceptual model developed by Professor James C Hathaway in The Law of Refugee Status (Butterworths, Toronto, 1991) at 101-105. He points out at 103 that the intention of the drafters was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population. He defines persecution as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection. This is the test adopted in New Zealand by the RSAA: #Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 26; #Refugee Appeal No. 2039/93 Re MN (12 February 1996) 14-16.

25. This approach necessarily involves assessing the protection afforded by the country of origin against the so-called International Bill of Rights (Universal Declaration of Human Rights 1948, International Convention on Civil and Political Rights 1966; International Convention on Economic, Social and Cultural Rights 1966) and the hierarchy of rights found therein. This is more fully discussed by Professor Hathaway in op cit 105-124.

Examples where the hierarchy of rights has been discussed and applied:

Refugee Appeal No. 150/92 Re SS (9 December 1992) 9-10 - right to work

#Refugee Appeal No. 135/92 Re RS (18 June 1993) 20 - persecution not to be confused with torture

#Refugee Appeal No. 2039/93 Re MN (12 February 1996) 14-16; 19-40 - substantial discussion in context of Arab-Iranian woman

#Refugee Appeal No. 732/92 Re CZZ (5 August 1994) 13-18 - substantial discussion whether denial of secondary education constitutes persecution. Discussion also of the right to work.

AGENTS OF PERSECUTION

26. The RSAA accepts (#Refugee Appeal No. 11/91 Re S (5 September 1991) 14-19; #Refugee Appeal No. 2039/93 Re MN (12 February 1996) 17) that there are four situations in which there can be said to be a failure of state protection.

Persecution committed by the state concerned;

Persecution condoned by the state concerned;

Persecution tolerated by the state concerned;

Persecution not condoned or not tolerated by the state concerned but nevertheless present because the state either refuses or is unable to offer adequate protection.

State complicity in persecution is therefore not a pre-requisite to a valid refugee claim.

GENDER AND PERSECUTION

27. Gender, as well as age, must be taken into account when determining whether the acts in question are persecutory. Some acts can only be committed against women or children, or have a differential impact upon them.

There is an extended discussion of these issues in #Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 6-12, 26; #Refugee Appeal No. 2039/93 Re MN (12 February 1996).

In the latter case the RSAA firmly rejected the argument that each society must be judged according to its own standards, that is that cultural relativity has a place in determining the meaning of persecution. It also rejected the idea that the appropriate standard is that prevailing domestically in New Zealand. Rather, the standard is a universal one, as set out in the International Bill of Rights.

STATE PROTECTION AND REGIONALISED FAILURE TO PROTECT

28. It is not uncommon to find that the activities of the agent of persecution are confined to a specific area or areas. The question is whether an individual who has a well-founded fear of persecution at the hands of the agent in one part of the country of origin, but who can receive meaningful state protection in another part of the country, should be expected to seek out this protection before making a claim to refugee status in another country. The answer is that domestic protection must be sought, provided an affirmative answer can be given to two questions:

Can the appellant genuinely access domestic protection which is meaningful?

Is it reasonable, in all the circumstances, to expect the appellant to relocate elsewhere in the country of nationality?

See #Refugee Appeal No. 523/92 Re RS (17 March 1995) 27-47; Butler v Attorney-General [1999] NZAR 205, 216-218 (CA).

29. The jurisprudence may require revision in the light of observations made by the Court of Appeal in Butler. Note #The Michigan Guidelines on the Internal Protection Alternative (April 1999) which prefer the expression "internal protection" to "internal relocation" or "internal flight alternative".
CONVENTION REASONS

30. Note that only five grounds of persecution are recognized in the Convention.

RACE

31. The term is used in its popular and non-technical sense. It does not refer to genetic ancestry, but to shared characteristics of a social-political nature such as customs, beliefs, traditions and characteristics derived from a common or presumed past, even if not drawn from what in biological terms is a common racial stock: #Refugee Appeal No. 1222/93 Re KN (5 August 1994) 23-27.

RELIGION

32. Freedom of religion includes the negative freedom not to belong to any religion: #Refugee Appeal No. 1039/93 Re HBS and LBY (13 February 1995) 20-23.

NATIONALITY

33. Closely linked to the notion of race. Includes the lack of nationality, ie, statelessness.

MEMBERSHIP OF A PARTICULAR SOCIAL GROUP

34. It has been argued by some that this ground is a safety-net which catches all grounds of persecution not included in the other four. But this argument would make the four other grounds redundant and for this reason alone has been universally rejected. Others argue that the social group category should be narrowly interpreted, applying only if one of the other four Convention grounds is also present. This argument too has been rejected.

35. The consensus of opinion is coalescing around a middle ground position which defines a particular social group as including three possible (ie, not exhaustive) categories:

Groups defined by an innate or unchangeable characteristic;

Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

Groups associated by a former voluntary status, unalterable due to its historic permanence.

These categories were formulated in Canada (Attorney General) v Ward [1993] 2 SCR 689, 739 (Can:SC). The court observed that the first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.

The Ward formulation has been applied in New Zealand. See #Refugee Appeal No. 1312/93 Re GJ (30 August 1995) 23-57.

36. It is also common ground that the group must exist independently of the persecution: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA) (Brennan CJ and Kirby J dissenting); R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 WLR 1015; [1999] 2 All ER 545 (HL) (Lord Millet dissenting); #Refugee Appeal No. 2124/94 Re LYB (30 April 1996) 23.

37. The point that has been stressed by the RSAA is the need for there to be an internal defining characteristic shared by members of the particular social group. See #Refugee Appeal No. 1312/93 Re GJ (30 August 1995) 56-7.

WOMEN AND PARTICULAR SOCIAL GROUP

38. The principle New Zealand decision is #Refugee Appeal No. 2039/93 Re MN (12 February 1996). More recently there is the 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).

POLITICAL OPINION

39. Perhaps the widest of the Convention grounds, it is certainly the ground most often applicable.

40. The main point is that it is not necessary for the claimant to have been politically active. The Convention ground is political opinion, not political activity.

Furthermore, it is not necessary for the claimant to possess a political opinion. It is sufficient if one is imputed by the agent of persecution.

REFUGEES SUR PLACE

41. A person who is not a refugee when he or she left the country of origin, but who becomes a refugee at a later date, is called a refugee sur place. This can happen as a result of sudden changes in the country of origin (eg, a coup d'état) or as a result of the claimant's own activities abroad (eg, taking part in political activities against the government of the country of origin). So the Refugee Convention includes not only persons who have fled from their home country, but also those who have become refugees sur place.

42. However, there is a good faith requirement. It is not possible for refugee status to be granted to an individual who, having no well-founded fear of persecution, deliberately creates circumstances exclusively for the purpose of subsequently justifying a claim for refugee status:

#Refugee Appeal No. 2254/94 Re HB (21 September 1994) 35-61

#Refugee Appeal No. 70100/96 (28 November 1997) 50-56

FORMULATION OF THE INCLUSION CLAUSE ISSUES

43. In summary, the standard formulation of the inclusion clause criteria is:

Objectively, on the facts as found, is there a real chance of the claimant being persecuted if returned to the country of nationality?

If the answer is Yes, is there a Convention reason for that persecution?

In those cases where the internal protection principle/relocation is an issue, the two further questions which must be addressed are:

Can the claimant genuinely access domestic protection which is meaningful?

Is it reasonable, in all the circumstances, to expect the claimant to relocate elsewhere in the country of nationality?

CESSATION

44. Refugee status was not conceived of as a permanent condition. It expires when a refugee can either reclaim the protection of his or her own state or has secured an alternative form of enduring protection: Professor James C Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991) 189.

45. There are now formal procedures for the determination of cessation. See s 129L(1)(a) and (f) and s 129R(a).

46. In the absence of fraud, loss of refugee status will not, however, necessarily affect the immigration status held by the refugee. This will be so if a residence permit has been granted. Temporary permits will, however, necessarily expire, if not sooner revoked.

EXCLUSION

47. Refugee status is not the entitlement of every person genuinely at risk of persecution. Excluded are those who do not need, or do not deserve protection. See Articles 1D, 1E and 1F.

The most commonly countered exclusion clause is Article 1F:

ARTICLE 1F(a) WAR CRIMES, CRIMES AGAINST PEACE, HUMANITY

#Refugee Appeal No. 1248/93 Re TP (31 July 1995) 24-38

#Refugee Appeal No. 1655/93 Re MSI (23 November 1995)

Garate v Refugee Status Appeals Authority [1998] NZAR 241, 246-249 (Williams J)

ARTICLE 1F(b) SERIOUS NON-POLITICAL CRIME

#Refugee Appeal No. 1222/93 Re KN (5 August 1994) 30-32

S v Refugee Status Appeals Authority [1998] 2 NZLR 291, 296, 297-299 (CA) - no proportionality test

ARTICLE 1F(c) ACTS CONTRARY TO PURPOSES/PRINCIPLES OF THE UN

Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982; (1998) 160 DLR (4^th) 193 (SC:Can).

1. An analysis of the degree to which New Zealand discharges these obligations is to be found in #Haines, The Legal Condition of Refugees in New Zealand (Legal Research Foundation, Auckland, 1995). For a comparison of the New Zealand position with that of other selected State Parties see Hathaway & Dent, Refugee Rights: Reports on a Comparative Survey (York Lanes Press, Toronto, 1995).

2. The square brackets in Article 1A(2) denote words deleted by Article 1(2) of the 1967 Protocol Relating to the Status of Refugees.

Article 1

...

(2) For the purpose of the present Protocol, the term "refugee" shall, except as regards the application of paragraph 3 of this Article, mean any person within the definition of Article 1 of the Convention as if the words "as a result of events occurring before 1 January 1951 and ..." and the words "... as a result of such events", in Article 1A(2) were omitted.

3. Ibid.