Court of Appeal Cases
Court of Appeal, Wellington
CA282/99; [2000] 3 NZLR 257
8 February 2000; 11 July 2000
Richardson P, Gault, Henry, Thomas
& Keith JJ
Judicial review - legitimate expectation - whether presumption in favour of grant of temporary permit to refugee claimant in absence of special factors
Judicial review - relevant considerations - whether immigration officers required to have regard to Refugee Convention when temporary permit provisions of the Immigration Act 1987 are applied to refugee claimants - Immigration Act 1987, s 129X(2)
Judicial review - relevant considerations - whether UNHCR Guidelines on Detention of Asylum-Seekers relevant consideration - whether Guidelines impose obligations on Minister of Immigration
Judicial review - detention - whether Article 31 of the Refugee Convention and the UNHCR Guidelines on Detention of Asylum-Seekers and related documents relevant material for District Court Judge to consider under Immigration Act 1987, ss 128 & 128A
Immigration Act 1987 - detention - whether Article 31 of the Refugee Convention and the UNHCR Guidelines on Detention of Asylum-Seekers and related documents relevant material for District Court Judge to consider under Immigration Act 1987, ss 128 & 128A
Immigration Act 1987 - temporary permit - whether immigration officer under an obligation to apply presumption in favour of the grant of temporary permits in the absence of special factors making detention necessary - whether immigration officers required to have regard to Refugee Convention when temporary permit provisions of the Immigration Act 1987 are applied to refugee claimants - Immigration Act 1987, s 129X(2)
Article 31 - penalties - whether detention under Immigration Act 1987, s 128 a penalty and in breach of Article 31(1)
Article 31 - coming directly from - meaning of directly
Detention - whether UNHCR Guidelines on Detention of Asylum-Seekers relevant consideration - whether Guidelines impose obligations on Minister of Immigration
The respondents arrived in New Zealand between 5 September 1999 and 18 October 1999 without travel documents and applied on arrival for refugee status. They also applied for temporary permits pending determination of their refugee claims. Each was declined a permit and detention in prison followed. Judicial review proceedings were commenced challenging the decline of the permit applications. The High Court set aside the decisions and ordered a reconsideration on the basis that "refugee claimants are to be granted temporary permits in the absence of special factors making detention necessary". It was also held that the New Zealand Immigration Service (NZIS) had breached the respondents' legitimate expectations by failing "to begin with the presumption that a temporary permit should be granted to a refugee claimant in the absence of special factors making detention necessary". The detention of the respondents was terminated by orders made by a District Court Judge on 1 December 1999, two days after the judgment of the High Court was given. The ordered reconsideration led to the grant of temporary permits to all of the respondents.
The Crown appealed to the Court of Appeal seeking a ruling whether an immigration officer is under an obligation to apply to a refugee claimant a presumption in favour of the grant of a temporary permit in the absence of special factors making detention necessary.
Held:
1 (Thomas J dissenting) There is no justification for requiring the Minister of Immigration or his delegate to apply a presumptive approach to a temporary permit application by a refugee claimant in cases where there is a discretion to grant one. The Immigration Act 1987 does not support such approach. The NZIS Operational Manual does not require it, nor does the Refugee Convention, even when read with the UNHCR Guidelines on Detention of Asylum-Seekers (see para [47]).
Observations:
1 (Thomas J dissenting) States have very broad powers under international law to control the entry of non-citizens into their territory. Those powers are subject to limits, for reasons of humanity, in favour of refugees - those fleeing from persecution in their own country (see para [1]).
2 (Thomas J dissenting) The UNHCR Guidelines on Detention of Asylum-Seekers are about the detention of applicants for refugee status and not directly about the grant of immigration permits. That is they bear on the powers to detain and release. That point is, however, to be qualified by the considerations that the initial refusal of a temporary permit appears inevitably to bring with it detention under the Immigration Act 1987, s 128 (as here) and that Article 31(1) and 31(2) of the Refugee Convention are relevant in that context; the Guidelines and related documents may also be. District Court Judges, in determining whether detention should be continued, in exercise of their power under ss 128 and 128A of the Act, might properly have regard to the provisions of Article 31, and perhaps also to the Guidelines and related documents. The Guidelines do not appear to have the status of documents such as the conclusions of the Executive Committee for the UNHCR which purport to interpret provisions of the Convention. Being non-obligatory material, the Guidelines, although possibly relevant for interpretation purposes, cannot themselves provide a basis for imposing obligations on the Minister and his delegate in the present context. There is nothing in the evidence to indicate that the Guidelines have been adopted, either as a matter of policy by the Minister or by the NZIS in carrying out its functions in considering applications for temporary permits by those seeking refugee status (see paras [38] & [39]).
3 (Thomas J dissenting) Section 129X(2) of the Immigration Act 1987 requires an immigration officer to have regard to the Refugee Convention when considering an application for a temporary permit and when exercising powers to require the removal of persons unlawfully in New Zealand and associated powers of detention (see para [44]).
4 (Thomas J dissenting) Detention under the Immigration Act 1987, s 128 is not a "penalty" for the purposes of Article 31(1) of the Refugee Convention. The detention of persons on remand is not generally understood to be in the nature of a penalty or punishment. It is rather an interim measure, utilised on balance in the overall interests of justice pending determination of whether or not a penalty is to be imposed. No penalty is being exacted from persons detained pursuant to s 128. The record of the meeting of 25 July 1951 of the conference of states which prepared the Convention similarly made it abundantly clear that the provision had no application to the right of States to keep claimants in custody pending determination of status. A prohibition against such a course would seem difficult to justify, whereas punishment of claimants merely because they have entered the country unlawfully is something quite different. As to Article 31(2), it is clear that it applies only to the persons identified in paragraph (1), namely those who come directly from the country of persecution. In the cases of the respondents there was some apparent difficulty in bringing them within that description, even allowing a liberal construction of "directly". The factual situation, however, was not adequately traversed in the evidence to enable this matter to be taken further (see para [45]).
5 (Thomas J dissenting) That apart, Article 31(2) of the Refugee Convention does not militate against the recognition behind paragraph (1) that detention may be justified during the investigative process. What it does is to prohibit unnecessary restrictions on movement, or liberty. There is still a judgment call to be made whether there are circumstances which warrant detention. Those circumstances may incorporate a wide variety of factors which need not be special to the particular applicant. No relevant challenge was mounted in the judicial review proceeding to the adequacy of the enquiry into the individual reasons for detention as these may have been applicable to Article 31(2). As already indicated, they may well have been relevant to the exercise by the immigration officer of his power to grant temporary permits and by the District Court Judge of the powers conferred by the Immigration Act 1987, ss 128 and 128A (see para [46]).
Appeal allowed.
Other cases mentioned in the Judgment
A J Burr Limited v Blenheim
Borough Council [1980] 2 NZLR 1 (CA)
Applicant A v Minister for
Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA)
Butler v Attorney-General
[1999] NZAR 205 (CA)
F v Superintendent of Mt
Eden Prison [1999] NZLR 420
New Zealand Institute of
Agricultural Science v Ellesmere County [1976] 1 NZLR 630 (CA)
R v Secretary of State for
the Home Department; Ex Parte Bugdaycay [1987] AC 514 (HL)
R v Uxbridge Magistrates'
Court; Ex Parte Adimi [2000] 3 WLR 434; [1999] 4 All ER 520 (QBD)
Reid v Rowley [1977] 2
NZLR 472 (CA)
Re Wellington Central Election
Petition, Shand v Comber [1973] 2 NZLR 470 (FC)
S v Refugee Status Appeals
Authority [1998] 2 NZLR 291 (CA)
Stininato v Auckland Boxing
Association [1978] 1NZLR 1 (CA)
Counsel
J J McGrath QC, M Hodgen
and G S Ferguson for the appellant
R J Hooker and G Monk
for the respondents
[Editorial note: The decision of the High Court is reported as E v Attorney-General [2000] NZAR 354. The subsequent decision of the Court of Appeal refusing leave to appeal to the Privy Council is reported as Attorney-General v E (No 2) [2000] 3 NZLR 637 (CA).
As to Observation 4, compare R v Uxbridge Magistrates' Court; Ex Parte Adimi [2000] 3 WLR 434; [1999] 4 All ER 520 (QBD).
The dissenting judgment delivered by Thomas J takes issue with what Thomas J describes as the unacceptably minimalist approach adopted to the resolution of the appeal; the extreme breadth of the discretion vested in the Immigration Service; the narrow interpretation placed on the Immigration Act 1987 and Government policy published pursuant to that Act; the limited perception of the international obligations to which the Act is designed to give effect; and the ultimate reliance placed on an "operational instruction", which has no statutory basis and which is contrary to the above obligations (see Judgment para 53). As to the last point Thomas J was of the view that any operational instruction made by the Manager of the Border and Investigations Section cannot fall within the description of Government policy. It is not published by the Minister and it is not made available to the public. It is, indeed, an administrative direction. The notion that an administrator could be able to make policy, as distinct from working within Government policy, by simply issuing an internal office circular was totally unacceptable (see Judgment para 124).
For a commentary on the case
see Professor Michael Taggart, "Administrative Law" [2000] NZ Law Review 439
at 443-446].
The judgment of Richardson P, Gault, Henry and Keith JJ was delivered by
HENRY AND KEITH JJ [1] States have very broad powers under international law to control the entry of non-citizens into their territory. Those powers are subject to limits, for reasons of humanity, in favour of refugees - those fleeing from persecution in their own country. This appeal is about aspects of those limits.
Applications for refugee status and temporary immigrations permits
[2] The 13 respondents in the present appeal claimed refugee status on their arrival in New Zealand between 5 September and 18 October 1999. They also applied for temporary immigration permits pending determination of their refugee claims.
[3] In each case the immigration application was declined, and as a consequence detention in prison followed. The refugee status applications were subsequently declined, and were then the subject of appeals to the Refugee Status Appeals Authority. In several instances the appeal processes were affected because the respondents were on a hunger strike and unwilling to be interviewed by the authorities. As is common in these situations, the respondents were not in possession of travel documents or proof of identity such as passports or visas, which would have been necessary when boarding an aircraft which brought them to New Zealand. Twelve of the respondents claimed to be Sikhs from India. At least seven of them flew on the same flight from Fiji but none admitted having been in Fiji. Several seem to have spent time in Thailand after leaving India, in one case apparently for some 10 months. The only non-Sikh claimed to have come from Iran, and arrived on an aircraft from Taipei. Verification of identity, because of the absence of documentation or doubts about the validity of that which was held, and of travel details from the country of origin, were obviously matters of concern in processing the refugee status applications.
The application for judicial review in the High Court
[4] The respondents' claims to refugee status are not an issue in this appeal, nor is their detention. That detention was terminated by orders made by a District Court Judge on 1 December 1999, two days after the giving of the judgment in the High Court which is the subject of this appeal.
[5] This appeal, like that judgment, is confined to the decisions to refuse the grant of temporary permits and to just one particular ground for attacking those refusals. Fisher J set aside those decisions and directed immigration officers of the New Zealand Immigration Service to reconsider the applications "on the basis that refugee claimants are to be granted temporary permits in the absence of special factors making detention necessary". In the course of his judgment he ruled that the Immigration Service had breached the respondents' legitimate expectations by failing "to begin with the presumption that a temporary permit should be granted to a refugee claimant in the absence of special factors making detention necessary". He also put the test in these words : "there was intended to be a strong, although rebuttable, presumption in favour of granting temporary permits to refugee claimants pending determination of their refugee status". This judgment, like the earlier one, is also limited in that the position of all the respondents is dealt with globally, no argument specific to the particular circumstances of any one of them having been made.
[6] Because the respondents are now at large as the result of the District Court order they have achieved what would have been the major consequence of their judicial review application, assuming, that is, that the ordered reconsideration led to the grant to all of them of temporary permits.
The Immigration Act 1987
[7] The particular
question presented by this appeal is whether the immigration officer was under
an obligation to apply a presumption in favour of the grant of temporary permits
in the absence of special factors making detention necessary. The answer
to that question is to be found in the provisions of the Immigration Act
1987 read with New Zealand's international obligations . Also relevant are
the New
Zealand Immigration Service Manual
and, according to the respondents, guidelines relating to the detention of
asylum seekers issued by the United Nations High Commissioner for Refugees.
[8] The Immigration Act emphasises the broad power of all states, already mentioned, to allow or to refuse non-citizens entry and residence, temporary or permanent. Section 4 begins with a prohibition:
(b) Exempt under this Act from the requirement to hold a permit.
(b) Give the person a right to remain in New Zealand while the application is considered; or
(b) Any question whether or not-
(ii) To impose any condition on a temporary permit (other than a condition imposed by section 27(1) of this Act); or
(iii) To vary or cancel any condition of a temporary permit; or
(iv) To revoke any
temporary permit-
[12] The discretion whether to grant a temporary permit or not is complemented by a discretion about the type of permit to be granted : a visitor's permit, a work permit, a student permit, or a limited purpose permit (ss9A, 24).
[13] Section 25 enables certain persons (such as those with visas or exempt from a visa requirement) to apply for temporary permits. However, in elaboration of s4(3) (para [9] above), it goes on to provide that those who are unlawfully in New Zealand, as were the respondents on their arrival, may not apply:
(b) Whether the application
is considered or not,-
(ii) Section 36 of this Act and section 23 of the Official Information Act 1982 [both of which require the giving of reasons when requested] shall not apply in respect of the application. (see similarly s35A(2))
[15] Sections 13B and 13C deal specifically with government residence policy, that is policy of the Government in relation to residence visas and residence permits that has been certified by the Minister as Government residence policy. The policy takes effect from the date specified in the certified policy, which is to be inserted in the departmental manual of immigration instructions. Government residence policy includes rules or criteria for determining the eligibility of a person for the issue of a residence visa or the grant of a residence permit; any general or specific objectives of Government residence policy; and any statement of, or rules or criteria for determining, the number or categories or ranking of persons or classes of persons whose applications for residence visas or residence permits may be granted at any particular time or over any particular period. Section 13C requires immigration officers and the Minister to comply with that policy, with the qualification that the Minister may issue a residence visa or grant a residence permit (but not refuse them) as an exception to Government residence policy in any particular case. The binding force of the residence policy is emphasised as well by the right of an applicant to appeal to the Residence Appeal Authority against the refusal to grant a residence visa or permit on the ground that the refusal was not correct under the policy (ss18C, 18D and 18E).
[16] Parliament in these provisions has drawn a plain line between the significance of the policy relating to the grant of residence permits and the policy relating to temporary permits. The former has legal force. The latter does not, at least in terms of ss13A-13C. It is the latter policy, and not the former, which is relevant in this case.
[17] The prohibitions and broad discretions are supported by the powers conferred by s128 of the Act to detain and to require the departure of those who are refused permits on arrival in New Zealand. The immediate and temporary nature of the powers is emphasised by the fact that they cease to apply to any person (including any stowaway) 72 hours after the time when the craft on which that person was travelling berths, lands, or otherwise arrives in New Zealand if they have not been detained by then.
[18] The persons covered by the section are (again) deemed to be in New Zealand unlawfully, with the qualification that Part II of the Act with its provisions requiring departure but also providing the safeguard of a right of appeal does not apply (s128(4)). They may be detained by any member of the police and placed in custody pending their departure on the first available craft (sl28(5)). The initial detention is for no more than 48 hours and is then subject to extension for up to 28 days by a District Court Registrar who has no discretion in the matter (s128(7)-(10)). If departure is unlikely within that period, a District Court Judge may extend the warrant for a further seven days or such longer period as the Judge considers necessary if the person detained was one of a group who arrived in New Zealand together to allow all the persons in the group to be properly dealt with (s128(13), (13A) and (13B)); alternatively such a person might be released (s128(13)(b)).
[19] A person who has been released becomes subject to the Part II regime and is no longer subject to detention and removal under s128. By contrast, so long as the persons are detained they are subject to removal on the next available craft (s128(11)). If a person detained under those powers seeks judicial review in respect of the detention, the time period stops running during the review proceedings (s128A(2)), but a District Court Judge must be asked to consider the matter at least every seven days and can order the release of the person if satisfied they are not likely to abscond or breach conditions about residence, reporting and any other matter (s128A(3), (4), (6)). If the review proceedings fail, the person then becomes subject again to the detention and removal power and, if they succeed, the person is released (s128A(5)).
[20] Two comments of a general character may be made about these powers. They emphasise that people. who are quickly identified as being in New Zealand unlawfully are subject to detention and rapid removal, without the safeguards by way of appeal, available for instance to those who overstay temporary permits or who are refused residence. But those powers are subject to safeguards both through the statutory powers conferred on District Court Judges and, as the statute acknowledges, through judicial review.
[21] A more particular question raised by the position of those claiming to be refugees is this : do those powers put them in jeopardy by their being immediately returned to their place of persecution? That question takes us to the law about refugees and to the important limits it places on the general powers of states to control the entry of non-citizens and to remove them. We consider in turn the relevant provisions of international law and of the Immigration Act.
Convention relating to the Status of Refugees 1951
[22] As already indicated, humanitarian considerations have put refugees, those fleeing their country of nationality because of a well-founded fear of persecution, in a special class. Recognition of the world wide problem created by refugees seeking the right to reside in, and the protection of, another state led to the adoption of the 1951 Convention Relating to the Status of Refugees which was limited to events before 1 January 1951 and of the 1967 Protocol which removed the 1951 temporal limit. New Zealand acceded to the Convention in 1960 and to the Protocol in 1973. (The English texts of those treaties appear in schedule 6 to the 1991 Act.) By those actions it undertook to apply the substantive provisions of the Convention to refugees as they are defined in article 1 and, especially after 1973, to establish procedures for making refugee determinations; see the discussion in Butler v Attorney-General [1999] NZAR 205, 218-220.
[23] Article 33 of
the Convention states the basic protective principle of non refoulement.
It answers in the negative the question asked in para [21] above:
[25] Articles 31 and
32 provide further relevant protection:
Immigration Amendment Act 1999
[27] Since 1 October 1999, the New Zealand immigration legislation has incorporated specific provisions regulating the determination of refugee status. This Court had indicated the desirability of legislation on that matter in Butler v Attorney-General [1999] NZAR 205 and S v Refugee Status Appeals Authority [1998] 2 NZLR 291.
[28] The 1999 Amendment Act provides two statements of the object of the new Part VIA on Refugee Determinations which it introduced. According to the title, it is an Act to "(b) Create a statutory framework for determining refugee status under the Refugee Convention". Section 129A puts the matter more broadly:
...
129X Prohibition on removal or deportation of refugee or refugee status claimant-
...
...
[31] Sections 129F and 129L also require determinations to be made in accordance with particular aspects of the definition of refugee status set out in article 1C, D, E and F of the Convention.
[32] The procedural provisions of the new part VIA protecting claimants for refugee status are significant both in their own terms and because of the contrast between them and the provisions, mentioned earlier, applicable to the same people when they seek temporary immigration permits. Those handling applications for refugee status must not also be involved with the grant of immigration permits (ss129B, 129E and 129W). Those refugee officers must consider the applications including, of course, the material provided by the applicant, and must comply with the requirements of fairness (ss129F, 129G and 129H). Those obligations are supplemented by the Immigration (Refugee Processing) Regulations 1999. The officers must give reasons for their decisions and inform unsuccessful claimants of their rights of appeal (s129I). Claimants also have the right to make new applications if the circumstances in their home country alter significantly (s129J). Similar protections of a procedural kind are written into the appeal sections. There is, for instance, a right to an interview, with limited exceptions, and once again reasons are to be given (ss129P and 129Q).
[33] The plain general purpose and effect of these provisions is to ensure compliance with the Convention, especially so far as it regulates decisions on claims to refugee status. In particular, claimants are not to be removed from New Zealand except in the narrowly defined circumstances allowed by articles 32.1 and 33.2. As discussed later, the provisions of articles 31.1 and 2 are also relevant to the powers to grant temporary permits and the closely related powers of detention under ss128 and 128A.
The Manual
[34] A new version of the New Zealand Immigration Service Manual came into force on 26 July 1999, was altered as a result of the 1999 Amendment Act, and was then re-issued on 1 October of that year. The relevant provisions are:
a. Under the guidelines set down by the UNHCR, New Zealand has a general obligation to admit people who make a claim for refugee status on arrival in New Zealand.
c .Immigration officers must not take any action to remove the claimant.
E8.5 Temporary visas and permits for refugee status claimants
E8.5.1 General requirements
a. A refugee status claimant who holds a current temporary permit may submit an application for a temporary visa or permit at any NZIS office in New Zealand.
d. The applicant must ensure that they submit each application before any existing permit expires (see E2.10).
e. Normally, claimants for refugee status will be granted visitor permits (see V3.90). For information on when work permits or student permits may be granted see W3.130 and U10.5 respectively.
TO: ALL STAFF
BORDER/INVESTIGATIONS
USE OF SECTION 128 FOR PERSONS CLAIMING REFUGEE STATUS
This operational instruction relates to the use of Section 128 of the Immigration Act 1987 in respect of certain persons who are refused entry but claim refugee status on arrival.
This operational instruction supersedes any previous instruction and the relevant manual section. It takes into account the changes arising from the enactment of the Immigration Amendment Act 1999 and a further High Court decision on this matter and this will be updated in the manual in due course.
Principles
The use of Section 128 for persons who claim refugee status will normally but not exclusively be limited to those persons:
1. Who are prohibited by virtue of Section 7 from being granted a permit.
2. Whose claims appear
to be prima facie manifestly unfounded or where the merits of the claim appear
not to be strong. In such circumstances the Officer must also consider
the humanitarian aspects of the case and balance these against an assessment
of the risk of absconding, the cost and likelihood of detention, the inability
to obtain travel documents, the impact on the airline's
obligations under the Immigration
Act and the availability of Annex 9 procedures in the event that the claim
is declined.
Any use of Section 128 by Officers at the border can only be made following consultation with the Manager of Border/Investigations or his/her delegate.
When deciding to use the provisions of Section 128 the Branch Manager will consult where necessary with the Manager of Refugee Status Branch and/or the Chairperson of Refugee Status Appeals Authority with a view to ensuring that the refugee determination process is given the highest priority.
The UNHCR wishes to monitor these cases and they are to be advised of each case as it arises.
Under no circumstances is the person to be removed from New Zealand until they have had their claim determined by the Refugee Status Branch and any appeal finalised by the Refugee Status Appeals Authority.
Andrew Lockhart
Manager
The Detention Guidelines of the United Nations High Commissioner for Refugees
[37] The United Nations High Commissioner for Refugees has issued guidelines on applicable criteria and standards relating to the detention of asylum seekers. The introduction notes that the Commissioner views the detention of such persons as inherently undesirable. Reference is made to Article 31 of the Convention which does of course indicate that detention is to be used only when necessary (para [25] above). Guidelines 2 and 3 state:
As a general principle asylum-seekers should not be detained
According to Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognised as a basic human right. In exercising this right asylum-seekers are often forced to arrive at, or enter a territory illegally. However, the position of asylum-seekers differs fundamentally from that of ordinary immigrants in that they may not be in a position to comply with the legal formalities for entry. This element, as well as the fact that asylum-seekers have often had traumatic experiences, should be taken into account in determining any restrictions on freedom of movement based on illegal entry or presence.
In assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to be achieved. If judged necessary it should only be imposed in a non discriminatory manner for a minimal period.
The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law. In conformity with EXCOM Conclusion No. 44 (XXXVII) the detention of asylum-seekers may only be resorted to, if necessary.
[39] More particularly, the Solicitor-General submitted that being non-obligatory material, the Guidelines, although possibly relevant for interpretation purposes, could not themselves provide a basis for imposing obligations on the Minister and his delegate in the present context. We agree. There is nothing in the evidence to indicate that the Guidelines have been adopted, either as a matter of policy by the Minister or by the Immigration Service in carrying out its functions in considering applications for temporary permits by those seeking refugee status.
The issue - a presumption in favour of a temporary permit?
[40] As noted earlier, Fisher J reached the conclusion that a refugee status claimant is entitled to the grant of a temporary permit in the absence of special factors making detention necessary. He recognised the breadth of the discretion expressed in the Act, but concluded that when considered in the round, the provisions of the Manual, the Convention, the UNHCR Guidelines, Mr Lockhart's evidence that temporary permits are normally granted to refugee status claimants, and s22 of the New Zealand Bill of Rights Act 1990 meant that "there was intended to be a strong, although rebuttable, presumption in favour of granting temporary permits". The Judge saw this as providing a basis for judicial review under the public law concept of legitimate expectation. The expectation not in fact having been met, relief was available to the respondents. It is of some significance to the question of judicial review generally, that the Judge found that on the facts the principles relating to taking into account relevant or irrelevant considerations had not been breached. The only defect in the decisions under attack, he said, was "the lack of a clear and articulated presumption in favour of temporary permits".
[41] With respect, we do not see this as a case of legitimate expectation. The argument for the respondents was that Mr Lockhart had not exercised the discretionary power to decline the permits in accordance with his obligations. As we understand it, there is no contention that procedural fairness required anything more - there was no expectation that Mr Lockhart would do more or other than carry out the specific obligations he was under when exercising his delegated authority. If he has done so, then in the present cases judicial review does not lie . In the end the issue determined by Fisher J was that there was an obligation imposed on the Minister or his delegate to apply the presumption. Because this had not been done, the decisions were flawed. The critical issue is whether there is any such obligation.
[42] First, the statute itself. There is nothing which expressly limits or proscribes the exercise of the discretion in question other than s129X(2), which requires immigration officers to have regard to the Convention as well as to the Act. The critical relevant obligation under the Convention is not to expel refugee claimants, as the Manual plainly recognises in C4.25(a), (c) and (f) (para [34]), as does the final paragraph of Mr Lockhart's instruction of 6 October (para [35]). We come back to the obligations under article 31 later in the judgment. There is nothing else discernible in the policy of the Act, either generally or in regard to refugee status claimants in particular, which bears on the issue.
[43] Secondly, the Immigration Service Manual. In the course of argument, Mr Hooker accepted that the only provision which could lend support to his case was E.8.5.1(e). That must be so. All other relevant provisions, including C4.25(d), are clearly permissive. The power to grant a permit is subject only to a prohibition if the claim appears to be abusive or manifestly unfounded. Paragraph (a) of C4.25 is directed to admitting claimants, rather than refusing entry at the border and potentially acting in breach of article 33. Similarly paragraph (c) is directed at preventing removal from New Zealand at the early stage. Considerable discussion revolved around paragraph (e) of E8.5.1. In its context, we would be inclined to construe the word "normally" as being applicable to the type of permit, namely visitor as opposed to work or student permits, rather than to granting permits generally to claimants, and the normality of that. The context of E8.5.1(e) is the application for a visa or permit, rather than the processing of it as is seen by the preceding paragraphs. The position is however somewhat clouded, or coloured, by Mr Lockhart's evidence that in practice refugee claimants will "normally" be granted temporary permits. He goes on to say he is aware of the kind of circumstances when an exception to that "normal" policy should be made, and that decisions about release or detention will depend upon a variety of factors. However we are unable to read into either E8.5. l(e) or the practice adopted anything more than a recognition that in the general run of cases claimants are likely to be granted temporary permits and that if a permit is granted it will normally be a visitor permit. That is a considerable distance from imposing a fetter on the clear statutory discretion, particularly one of the seriously inhibiting kind propounded.
[44] Thirdly, the Convention. It is first necessary to consider Mr McGrath's submission that s129X(2) does not require regard to be had to the Convention when the power to grant a temporary permit to a claimant is in issue. He contended that the provision was confined in its operation to the question of removal or deportation, and was to be read restrictively in that way. We are unable to accept the submission. The direction is clear in its terms. It covers all the functions of immigration officers being carried out under all parts of the Act. Those functions must include consideration of applications for temporary permits, and their grant or refusal, and the exercise of powers to require the removal of persons unlawfully in New Zealand and associated powers of detention. Under the subsection the officer is required to have regard not only to Part VIA of the Act (Refugee Determinations and comprising ss129A-129ZB), but also to the Convention. There is no good reason to read down the opening words. When the temporary permit provisions of the Act are applied to claimants for refugee status, the immigration officers must have regard to relevant provisions of the Convention. Those provisions include the important protections of article 31. That plain general reading of s129X(2) is supported by s129A: "the object of this Part is to provide a statutory basis for the system by which New Zealand ensures it meets its obligations under the Refugee Convention".
[45] Turning to the Convention, Mr Hooker placed reliance on Article 31.1, the submission being that detention under s128 was a penalty imposed in breach of that provision. We do not think that the reference to penalties is to be construed in such a wide sense. The detention of persons on remand is not generally understood to be in the nature of a penalty or punishment. It is rather an interim measure, utilised on balance in the overall interests of justice pending determination of whether or not a penalty is to be imposed. No penalty is being exacted from persons detained pursuant to s128. The record of the meeting of 25 July 1951 of the conference of states which prepared the Convention similarly made it abundantly clear that the provision had no application to the right of States to keep claimants in custody pending determination of status. A prohibition against such a course would seem difficult to justify, whereas punishment of claimants merely because they have entered the country unlawfully is something quite different. As to Article 31.2, it is clear that it applies only to the persons identified in paragraph 1, namely those who come directly from the country of persecution. In the cases of these respondents there is some apparent difficulty in bringing them within that description, even allowing a liberal construction of "directly". The factual situation however has not been adequately traversed in the evidence to enable this matter to be taken further.
[46] That apart, paragraph 2 does not militate against the recognition behind paragraph 1 that detention may be justified during the investigative process. What it does is to prohibit unnecessary restrictions on movement, or liberty. There is still a judgment call to be made whether there are circumstances which warrant detention. Those circumstances may incorporate a wide variety of factors which need not be special to the particular applicant. No relevant challenge was mounted in the judicial review proceeding to the adequacy of enquiry into the individual reasons for detention as these may have been applicable to Article 31.2. As already indicated, they may well have been relevant to the exercise by the immigration officer of his power to grant temporary permits and by the District Court Judge of the powers conferred by ss128 and 128A. The whole thrust of the case and its essence was that in the absence of exceptional circumstances an entitlement to a temporary permit followed because the claim to refugee status was not, on preliminary assessment, abusive or manifestly unfounded, and relevant documentation by way of an application form and a declaration as to personal details had been provided.
[47] For the reasons set out above, we are unable to see the justification for requiring the Minister or his delegate to apply a presumptive approach to a temporary permit application by refugee claimants in cases where there is a discretion to grant one. The Act does not support such approach. The Manual does not require it, nor does the Convention, even when read with the UNHCR Guidelines on Detention.
[48] Finally we stress that s128 and 128A both provide significant safeguards against undue or unjustified continued detention by expressly bringing consideration of that under the auspices of the District Court. As already mentioned, the respondents were in fact released from custody in exercise of those powers and the matter of their detention is not before us. It must also be the case, contrary to Mr Hooker's submissions, that risk management is a relevant factor when a temporary permit application is under consideration.
[49] In our view it is both unnecessary and undesirable to embark on a consideration of matters other than the narrow issue which has been argued in this Court on a matter of general principle, and in particular on whether there may be other grounds for challenging the decisions. Well before the hearing in this Court, the result of this appeal was recognised as having no practical effect for the respondents. The appeal was pursued by the Crown because of a perceived concern as to the consequences of the High Court ruling as to the legal basis upon which applications for refugee status were to be considered. The arguments in this Court necessarily centred on that issue. It is also important to note that in the High Court Fisher J did not make any determination on other possible grounds for reviewing the ministerial decisions, but ordered reconsideration of the applications. In those circumstances we do not see it as an appropriate function of this Court to undertake of its own volition a wider examination without the benefit of full argument and relevant findings of the Court below. That is particularly so if the final result could be adverse to those who could claim not to have been adequately heard on the allegations. A narrow but important point of principle was at issue.
Result
[50] For the above reasons the appeal is allowed and the applications for judicial review are accordingly dismissed. We are unaware whether, because the appeal was pursued on a matter of general principle, there are any arrangements between the parties as to the costs of the respondents. Accordingly counsel may, if necessary, submit memoranda on that question.
An unacceptably minimalist approach? [54]
The refugee problem [60]
The fate of the respondents [66]
The scope of the discretion [69]
[51] People who flee their own country to escape from political terror or armed conflict or life-threatening human rights abuses become refugees forced to seek asylum within the boundaries of another state. The international community has resolved that such people be treated with humanity and be accorded fundamental rights and freedoms. But this ideal can conflict or create a tension with the desire of a sovereign state to avoid unwanted migration. Zealous efforts by the state to control its borders can prejudice the humanitarian ideal and inhibit the allocation of fundamental human rights and freedoms.
[52] New Zealand has adopted the United Nations Convention Relating to the Status of Refugees, including the Protocol Relating to the Status of Refugees, and enacted legislation to ensure that it meets its obligations under that Convention. It cannot be thought that these obligations were undertaken half-heartedly or tongue in cheek. They are to be given effect. When, therefore, the actions of the state, through the New Zealand Immigration Service, in seeking to control its borders conflict with this country's international obligations it is the clear duty of the Court to ensure that those obligations are observed. The humanitarian ideal and fundamental rights and freedoms underlying the obligations are not to be sacrificed to expediency, indifference, or fears arising from an apprehension of the very problem the Convention was and is designed to meet. In declining to sanction anything less than the resolute observance of these obligations, the Court's authority is not the Convention itself or international law as such. Rather, it is the statute which Parliament itself has solemnly enacted for the express purpose of ensuring that New Zealand meets its international commitments relating to refugees.
[53] I cannot accept the majority's draft judgment. In short, I take issue with:
[54] Having considered the terms of the Immigration Act 1987, the Immigration Service Manual, the Refugee Convention and the United Nation High Commissioner for Refugee's Guidelines, Fisher J concluded it was intended that there be a strong, although rebuttable, presumption in favour of granting temporary permits to refugee claimants pending the determination of their refugee status. The claimants were entitled to expect that this principle would be applied in their cases. The majority in this Court have rejected this presumption. (Paras [40] to [47]). They hold that neither the Act, the Manual, nor the Convention create substantive rights or obligations which have legal effect. Consequently, it is held, there is no justification for a presumptive approach.
[55] To my mind it is not enough in a case such as this to simply reject the specific ground on which the Judge at first instance based his decision and allow the appeal on that basis. What is in issue is the exercise of a discretionary power conferred on administrators by statute, and they are bound to exercise that discretion in accordance with the statute. Failure to do so exposes them to judicial review by the Courts in their supervisory jurisdiction. The grounds of review are too diffuse, repetitive, and flexible to admit of a formal categorisation. They merge and overlap. Lord Halsham made this point in London and Clydesdale Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, at 189-190:
[56] The fact that Fisher J may have decided to base his decision on the legitimate expectation of the respondents that the Immigration Service would apply a presumption that claimants for refugee status are to be granted a temporary permit does not mean that other grounds for impugning the decision do not exist. Indeed, as noted by the majority (at [41]), counsel for the respondents' argument in this Court was that the Immigration Officer concerned had not exercised the discretionary power to decline the permits in accordance with his obligations. The argument was wider than that relating to a legitimate expectation and questioned the validity of the Immigration Officer's exercise of his discretion. The respondents are entitled to succeed unless it can be shown that the decisions in issue were a proper exercise of the Officer's discretion. Moreover, although the Crown emphasised that its major concern was the Judge's finding that unauthorised persons who arrive at New Zealand's border and claim refugee status have a presumptive right to be issued temporary permits to enter New Zealand, the Crown cannot restrict the issue to that narrow ground. Indeed, as will be apparent in this judgment, the Crown's argument ranged over the whole nature and scope of the Immigration Service's discretion under the Act. It sought to refute the notion of a presumption by contending for a broad discretionary power. Thus, the scope of the discretion was squarely in issue in the context of a general appeal.
[57] I acknowledge that Fisher J said that he did not think the legal principles relating to relevant considerations "added anything useful" to the legitimate expectation argument which he had already traversed. The only defect, he thought, was the lack of a clear and articulated presumption in favour of temporary permits. I believe that the learned Judge, writing his decision as he observed "under some urgency", was directing these remarks to the criteria in the operational instruction dated 6 October 1999, the legality of which he questioned elsewhere in his judgment. If this is not so, his comments are difficult to understand as the very factors which he relies upon to found a legitimate expectation could easily be framed as relevant considerations. I do not need to take this point further, however, as I propose to approach the question in issue without focusing exclusively on any particular ground of judicial review.
[58] As a result of Fisher J's judgment the respondents were released from detention. They are not therefore dependent on the decision of this Court to obtain their liberty. But this appeal is far from academic. As indicated by the fact that the respondents have continued to resist the Crown's appeal, the outcome will be of importance to them. Apart from any possible legal consequences, it will possess the importance which any judicial determination possesses to persons who approach the courts seeking to vindicate their rights. Moreover, and most significantly, the effect of the Court's decision will go well beyond its impact on the respondents. It will necessarily define the nature and scope of the Immigration Service's discretion to grant or withhold temporary permits to claimants for refugee status in future cases.
[59] It follows that I am concerned at the minimalist approach which is adopted in the judgment of the majority. I would not wish to deprecate judicial minimalism. There is much to be said for resolving the issue before the Court and nothing more. Such an approach is alert to the scope for reasonable disagreement and the problem of unanticipated consequences resulting from overreaching decisions. It can be characterised as a form of judicial restraint. But I believe that it is unacceptably minimalist to allow the present appeal on the basis that the Judge's finding of a legitimate expectation giving rise to a presumption cannot be sustained. The issue before the Court is much wider than that. It is whether the Immigration Officer exercised his discretionary power with fidelity to the governing statute, and the fact that one particular ground of judicial review may be rejected does not automatically mean that the discretion has been validly exercised. The importance of confronting the issue is reinforced by the fact that this case involves fundamental human rights and freedoms and New Zealand's commitment to those rights and freedoms.
[60] This appeal must be considered in the context of the refugee problem. Indeed, the Solicitor-General sought to do so at the outset of his submission. He referred to the international migration of millions of people seeking "more secure and prosperous futures beyond the borders of their countries". Ultimately acknowledging that, nevertheless, the problems of genuine refugees are acute, he referred to the fact that global communications have broadened horizons and raised expectations and aspirations of large numbers of people. Concurrently, ease of travel has facilitated the movement of people seeking better lives abroad. One outcome of these developments has been an increase in migrant trafficking and another that applying for refugee status has become one way of attempting to bypass strict immigration criteria.
[61] The Solicitor-General quoted extensively from chapter 5 of the report of UNHCR In Search of Solutions (London, Oxford University Press, 1995), which deals with "Managing Migration". The chapter is essentially about the evolution of what is seen as an intractable international issue; the large scale migration of people from relatively poor and insecure countries to more prosperous and stable states. It observes that the conventional dichotomy between involuntary and voluntary migration; that is, "between refugees and economic migrants", has become blurred.
[62] I do not deny that a problem exists. But I do not consider that the problem of economic migration should be allowed to befog the question whether the detention of persons who claim to be fleeing from persecution in their own country and seeking refugee status in this country is justified. They are entitled to the protection of the Act and the Convention which it upholds, and that statutory protection is not to be diminished by emphasising the larger problem of economic migration. Claimants for refugee status are not to be approached on the basis that they are seeking to bypass strict immigration requirements any more than they are to be approached on the basis that they are automatically genuine refugees.
[63] It is to be emphasised, however, that the Convention does not create refugee status. It describes a condition that already exists. As the UNHCR states, recognition of a person's refugee status does not make him or her a refugee but declares them to be one. He or she does not become a refugee because of recognition, but is recognised because he or she is a refugee. See the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992), at para 28. See also Rodger Haines, "International Law and Refugees in New Zealand" (1999) NZ L Rev 120, at 129. Haines correctly points out that, for this reason, it cannot be asserted by governments that they owe no rights to refugees until they have determined that an asylum seeker is in fact a Convention refugee and hence entitled to Convention rights. He adds that, unless status assessment is virtually immediate, the only acceptable solution is to recognise that any person who claims to be a refugee is presumptively entitled to receive the benefit of certain articles of the Convention.
[64] Consequently, I prefer to see the problem in more humane terms. Over the last 60 years the international community, under the auspices of the United Nations, has developed a series of detailed instruments and standards concerning human rights. These standards are contained in a variety of covenants, conventions, treaties, declarations, principles and rules. See the Report of the Australian Human Rights and Equal Opportunities Commission Those Who've Come Across the Seas: Detention of Unauthorised Arrivals (1998) at 36-39. Thus, the International Covenant on Civil and Political Rights guarantees freedom from arbitrary detention (Art 9) and the right to be treated with humanity while in detention (Art 10). The Universal Declaration on Human Rights also prohibits arbitrary detention (Art 9) and proclaims the right of freedom of movement as one of the basic human rights (Art 13(1)). With necessary restrictions, and greater particularity, the Refugee Convention seeks to protect the fundamental human rights and freedoms of those forced to flee their country in fear of persecution. The Convention represents a concerted effort by all the states concerned to ensure that refugees are granted such facilities as are necessary to assure them a sufficient measure of these rights and freedoms. See Robinson, Convention Relating to the Status of Refugees: The History, Contents and Interpretation (1953) at 5. Recognising that the right to liberty is a fundamental human right and that nobody should be subjected to arbitrary detention, the states have agreed that the detention of asylum seekers should be a last resort for use on exceptional grounds only. See Those Who've Come Across the Seas, supra, at vii. As a member state, New Zealand has therefore undertaken an obligation to protect asylum seekers arriving unlawfully in this country pending and during the process by which their status is being determined and to respect their human rights while they are within New Zealand's territory.
[65] This respect for the rights of those persons claiming refugee status precludes a "culture of incarceration". See Hughes and Field, "Recent Trends in the Detention of Asylum Seekers in Western Europe", in Hughes and Liehaut (Eds) Detention of Asylum Seekers in Europe: Analysis and Perspectives (1998) at 7-8. But it is not only a question of the recognition of human rights. At base, the Convention recognises the humanitarian sentiment that the incarceration of innocent persons is repugnant. Inherent in that sentiment is the need to exercise due and deliberate restraint in the detention of persons claiming refugee status.
[66] The need for adherence to the Convention is made manifest by reference to the fate of the respondents in this case which is now a matter of record. All thirteen claimants initially had their applications for refugee status declined, many due to a refusal to attend interviews during a hunger strike which they undertook while in prison. All thirteen appealed to the Refugee Status Appeals Authority. Two claimants need to be excluded as they entered New Zealand either before or during the APEC Conference in Auckland in September 1999 and their detention can be justified under the Convention. (See para [135] below). Of the remaining eleven appeals nine have been determined as at the date of writing this judgment. Of these nine, four have been allowed by the Authority.
[67] Neither time nor space allows the facts as found by the Authority in the various cases to be traversed in this judgment. It will suffice to recount briefly the facts of one typical case to illustrate in a concrete fashion the shortcomings in the Immigration Service's approach to claimants for refugee status as evidenced by the current operational instruction. I will call him "A".
In September 1996 "A" was arrested again after a speech to encourage Sikhs to seek equal access to electricity supply. He was held in custody for two weeks, beaten with rifle butts, stripped naked and hung upside down. He was taken outside, tied to a tree and told he would be shot unless he stopped preaching. He was eventually released but arrested again in January 1999 for four days where he was stripped and beaten with a bamboo stick while his legs were stretched backwards. He also had a thumbnail removed. He spent five days in hospital on release."
In May 1999 "A" was told Police were looking for him. He went to New Delhi and travelled to New Zealand, surrendering himself to the authorities on arrival.
The Authority found that "A" had a well-grounded fear of persecution by reason of his religious beliefs and granted him refugee status.
[68] It is true that many claimants for refugee status do not succeed in their application. But it is cases such as "A's" which give potency to the claim that the rights of those who flee from persecution cannot be subjugated to concerns about economic migration or compressed into tables or statistics. To do so is to subjugate the plight of the genuine refugee. It is therefore essential that the detention of claimants for refugee status be "a last resort for use only in exceptional circumstances".
[69] Fisher J limited the scope of the Immigration Service's discretion whether to detain a claimant for refugee status by invoking a presumption which the immigration officer must observe. In rejecting that format, the majority have seemingly moved to the other extreme and permitted the Immigration Service an extremely wide discretion free from the structure and constraints necessary to give effect to the object of the Act. The foundation for this broad discretion is laid by emphasising the wide discretions to be found in the general provisions in Part I of the Act relating to the grant or refusal of temporary permits. See ss 9, 9A, 24, 25, 35 and 35A. These broad discretions are, it is argued, supported by the powers conferred by s128 (and s128A) of the Act to detain and require the departure of those who are refused permits on arrival in New Zealand.
[70] The breadth of an immigration officer's discretion under these general provisions is undeniable. But it is wholly unacceptable to read that discretion without giving due prominence to Part VIA which specifically deals with "refugee determinations". Part VIA was introduced, as s 129A states, with the specific object of providing a statutory basis for the system by which New Zealand ensures it meets it obligations under the Refugee Convention. Section 129C expressly provides that every person in New Zealand who seeks to be recognised as a refugee in New Zealand under the Convention, or to continue to be recognised as a refugee, is to have their claim determined in accordance with Part VIA of the Act. Under s 129D refugee status officers and the Refugee Status Appeals Authority are to act in a manner which is consistent with New Zealand's obligations under the Convention. The Convention is set out in the Sixth Schedule. And under s 129X(2) immigration officers, in carrying out their functions under the Act in relation to a refugee or a refugee status claimant, must have regard to the provisions of Part VIA and of the Convention.
[71] Part VIA of the Act must therefore prevail. The wide discretionary powers exercised by immigration officers under the general provisions relating to the grant of temporary permits are necessarily secondary to that Part. It is that Part of the Act which is specifically intended to deal with refugees and it must predominate over the provisions in Part I relating generally to all persons entering this country. If it were otherwise, the Immigration Service could frustrate the object of Part VIA and undermine New Zealand's commitment to the Convention.
[72] For this reason I consider it erroneous to fasten on to the breadth of the discretionary powers which apply to persons who are in the country unlawfully but who are not claimants for refugees status and extend those powers to such claimants. Rather, the scope of the discretionary power available to an immigration officer in dealing with claimants for refugee status is to be primarily determined by reference to Part VIA. The scope of an immigration officer's discretion therefore falls to be determined by a close examination of Part VIA, Government policy published under the Act and the Refugee Convention itself. Each may be examined in turn.
(1) The Immigration Act as amended
[73] The first point to make is that the Act is explicit in spelling out the overriding obligation to act in a manner which is consistent with Part VIA and the Convention. The Convention and Protocol are given statutory recognition (s 60). Reference has already been made to the mandatory terms of ss 129C and 129D. Refugee status applications are to be determined by special refugee status officers (s 129E). It is because such provisions do not expressly cover the conduct of immigration officers dealing with claimants for refugee status that subs (2) of s 129X was enacted. The subsection bears repeating:
[75] It is to be noted that s 129X is substantially repeated in the New Zealand Immigration Service Operations Manual (C2.5(c)). (There have to date been three versions of this Manual. The first was published 30 October 1995 and the second on 26 July 1999. The third, and relevant version, was published on 1 October 1999 to take account of changes to the Act . All references in this judgment are to the 1 October 1999 Manual). The words "must have regard to" in s 129X are replaced by the words "must take into account" in the Manual - but nothing turns on that disparity. The important point is that the provisions of Part VIA and the Convention "must" be addressed and considered.
[76] I reject the Solicitor-General's attempt to restrict the application of subs (2) of s 129X to the removal or deportation of refugees or claimants for refugee status. It is an untenable argument, made even less appealing because of the possibility that, if such an argument can be advanced by the Crown's senior law officer, it may reflect the attitude of the Immigration Service and the immigration officers responsible for implementing the Act. No doubt should be admitted that immigration officers are obliged to have regard to the provisions of Part VIA and the Convention in carrying out their functions under the Act. In the first place, this is the plain meaning of the subsection, and that meaning cannot be diluted by reference to the heading and terms of subs (1). Why should the words, "their functions under this Act in relation to ... a refugee status claimant" be limited to the removal or deportation of such persons from New Zealand? Secondly, Part VIA and the Convention are much broader in scope and impact than the function of removing or deporting refugees from New Zealand. A limited view excluding all other statutory functions of immigration officers would be inconsistent with the object of Part VIA. If the functions of immigration officers in respect of the grant of temporary permits and detention of persons claiming refugee status under s128 could be carried out without regard to the Convention, New Zealand's commitment to uphold the principles of that Convention would be negated. Nor is there any sensible reason to require refugee status officers to act in a manner which is consistent with New Zealand's obligations under the Convention (s 129D) but not require immigration officers to have regard to those obligations. Finally, it is clear from the legislative history that subs (2) was not intended to be restricted by the section heading or terms of subs (1). Section 129X was initially clause 129W of the Immigration Amendment Bill when it was introduced. But the clause was then restricted to the provision now contained in subs (1) of s 129X prohibiting the removal or deportation of a refugee or claimant for refugee status. The Bill went to the Social Services Committee. In its report, the Committee stated:
(2) Government policy and the Manual
[77] Section 13A(1) makes it mandatory for the Minister from time to time to publish the policy of the Government relating to the rules and criteria under which eligibility for the issue or grant of visas and permits is to be determined. The Manual is the primary method of publication (s 13A(2)), and is the only document presented to the Court which complies with this obligation.
[78] The Manual initially states that good decision-making is facilitated by stressing the requirements of fairness and natural justice (A1.1). All immigration officers are required to act on such principles of fairness and natural justice when deciding an application (A1.1.c). One of the practical steps towards achieving fairness which is specified (A1.15.d.) is to -
[81] There are three reasons why it can be accepted that the word "normally" is applicable to or includes the grant of a visitor's permit as usual practice as distinct from being simply a specification of the kind of permit which is to be granted. The first reason is that, as a matter of fact, it is the normal practice of the Immigration Service to grant visitor's permits. The Manager of the Borders and Investigation Section of the New Zealand Immigration Service says so. In an affidavit sworn on 2 November 1999, he categorically states that "temporary permits are normally granted to refugee applicants". He adds that he has "knowledge and experience of the profile of applicants and the type of circumstances where an exception to normal policy should be made". This practice must indicate both how the word "normally" is used and how it has been interpreted by the Immigration Service. Secondly, the literal meaning accords with the Convention and the material available to interpret the Convention. The stipulation that detention is "normally" to be avoided appears in a number of international, instruments. (See below, paras [95], [97] and [100]). There must be a strong argument that, wherever there is an ambiguity in a document intended to give effect to New Zealand's obligations under the Convention, that meaning which accords, or most closely accords, with the Convention should be adopted. Finally, it would seem odd to use the word "normally" to describe the "type" of temporary permit to be granted if it was not usual to grant a permit at all. The language used is not the language of exclusion or exception.
[82] The Manual also states in Part 8 that the objective of New Zealand's refugee policy is to ensure that it meets its obligations under the Convention and the Protocol (C.1). The object proclaimed in s 129A is reiterated (C2.1.a). So too, the wording of s 129X(2) is repeated (C2.5.c). C4.25 then contains the following direction to immigration officers:
b. Officers should give due consideration to such people because they may be tired, disoriented, distressed, and incapable of communicating in English, either orally or in writing.
d. Unless a preliminary assessment of the claim made by an immigration officer indicates that the claim appears to be "abusive" or "manifestly unfounded", an officer may grant a visitor's permit in accordance with E8.5.
e. A refugee status claim
is abusive or manifestly unfounded if:
ii the claimant is claiming
refugee status in an attempt to evade normal immigration requirements.
(ii) Section 7(1) of the Immigration Act 1987 applies. (Emphasis added).
[84] As is to be expected, there is nothing in the Manual which makes it obligatory for immigration officers to issue visitor's permits to claimants for refugee status. That is to be expected because the Convention itself and the material available to assist in its interpretation clearly do not exclude the possibility of detention in certain circumstances. For present purposes, however, the Manual is of considerable assistance in three respects. First, it categorically affirms that the objective of New Zealand's refugee policy is to ensure that the country meets its obligations under the Convention and Protocol and that, as a party to both, New Zealand acknowledges all conventions relevant to determining refugee status. Secondly, it is made clear that refugees are in a separate category from other migrants. The discrete directions relating to claimants for refugee status confirms that the breadth of the discretion vested in immigration officers in relation to the grant of temporary permits under Part 1 of the Act must be read subject to the more specific requirements relating to refugees in Part VIA. Thirdly, although the grant of such permits is not mandatory, the policy directions clearly convey that the grant of temporary permits to claimants for refugee status will be the rule rather than the exception. In C4.25, for example, reference is made to the UNHCR guidelines and this country's obligation to give due consideration to such people because of the condition they are likely to be in. The admittedly permissive power to grant a visitor's permit should be exercised only where a preliminary assessment indicates that the claim appears to be "abusive" or "manifestly unfounded". The same impression is created by Y7.5 which significantly begins with the words; "A permit may be refused, and a claimant may be detained ..." where, again, the claim appears to be "abusive" or "manifestly unfounded".
[85] The Preamble to the Convention recognises that the Charter of the United Nations and the Universal Declaration of Human Rights approved by the General Assembly on 10 December I948 affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. The profound concern for refugees manifested by the United Nations is noted, as is its endeavour to ensure refugees the widest possible exercise of those fundamental rights and freedoms. The need for international co-operation is emphasised. The parties express the wish that all states, recognising the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent the problem becoming a cause of tension between states. It notes that the UNHCR is charged with the task of supervising international conventions providing for the protection of refugees and recognises that the effective co-ordination of measures taken to deal with the problem will depend upon the co-operation of states with the Commissioner.
[86] Article 31 is the pertinent Article. For convenience, the Article may be repeated:
1. The contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the Authorities and show good cause for illegal entry or presence.
2. The contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The contracting State shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country. (Emphasis added).
[88] By virtue of the first sentence of Art 31(2), however, a state is not to apply any restrictions on the movements of refugees other than those which are necessary. As just indicated, the drafters of Art 31 did not prohibit detention for the purpose of investigation. But the clear qualification in Art 31(2) is that restrictions must be "necessary". Use of this word in itself must preclude the detention of a claimant for refugee status for the convenience, financial saving or general purposes of the Immigration Service. A reason must exist which makes the detention necessary. On 10 July 1951 the President of the Council of Plenipotentiaries clarified that the words "other than those which are necessary" were meant to cover "considerations of security, special circumstances, such as a great and sudden influx of refugees, or any other reasons which might necessitate restriction of their movement". Further guidance as to what is meant by the use of the word "necessary" is to be found in a considerable amount of international material, and I will advert to the main documents shortly.
[89] The question whether the phrase "such refugees" in the opening line of Art 32(2) restricts the persons to which it applies to persons who come directly from the territory where their life or freedom was threatened as required in Art 31(1) does not need to be addressed in this judgment. There is no evidence that this point was relied upon by the Immigration Service in respect of its decision to refuse visitors' permits to any of the respondents.
[90] In order to determine
when detention of claimants for refugee status will be "necessary", it is
both permissible and desirable to have regard to extrinsic material recognised
as a source of international law and, in particular, to the documents of
the UNHCR. Brennan CJ in the Applicant "A" v Minister of Immigration
in Ethic Affairs & Anor (1996) 14 ALR 331, at 333, expressly confirmed
that assistance in ascertaining the objective and purpose of the text of
a treaty may be obtained from "extrinsic sources". Indeed, express
reference to UNHCR material is not uncommon. See e.g., R v Uxbridge
Magistrates (1999) 4 All ER 520, per Simon Brown LJ at 527-528.
See also R v Home Secretary, ex parte Bugdaycay [1987] AC 514, at
524; Plaintiff A v Minister of Immigration and Ethnic Affairs (1997)
142 ALR 331, at 389; and S v Refugee Status Appeals Authority [1998]
2 NZLR 291, at 300. Nor is it uncommon for the Refugee Status Appeals
Authority, the specialist body in this area, to have regard to the UNHCR
guidelines in determining an appeal. See e.g., Refugee Appeal No. 70951/98.
The question is, however, put beyond doubt by virtue of Article 35(1) of
the Convention. Art 35(1) reads:
[92] Clearly, then, while not binding or giving rise to direct obligations, UNHCR material is to be given due weight in construing the obligations which arise under the Convention. As McDonald and Blake put it in their text Immigration Law and Practice in the United Kingdom (4 Ed, 1995) at para 12.12:
- UNHCR "Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers" (10 February 1999) (UNHCR guidelines) -
- Executive Committee of the High Commissioner's Programme Detention of Asylum-Seekers and Refugees: the Framework, Problem and Recommended Practice (Standing Committee, 15th Meeting, 4 June 1999, EC/49/SC/CRP. 13) (Framework document).
[94] The UNHCR's "fundamental" role of providing protection to refugees has been frequently reaffirmed by the United Nations General Assembly since 1951. See Sztucki, "The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme" (1989) 1(3) Intl Jnl of Refugee Law, at 293. Pursuant to para 4 of the Statute of the United Nations High Commissioner for Refugees, the United Nations Economic and Social Council of the General Assembly established an Advisory Committee on Refugees. In 1958 it became the Executive Committee of the High Commissioner's Programme. It is an eminent body. The Executive Committee is currently composed of 57 States (New Zealand is not a member but is an official observer). Under its terms of reference (para 5, General Assembly Resolution 1166 (XII), 26 November 1957), the Committee approves and supervises the material assistance programme of the UNHCR and advises the Commissioner at his or her request on the exercise of their protection functions under the Statute. From time to time the Executive Committee issues Conclusions on International Protection. These are arrived at by consensus and as such represent an important body of opinion on detailed aspects of refugee law. The High Commissioner is required to abide by these Conclusions (General Assembly Resolution 1673 (XVI), 18 December 1961, paragraph 1; and General Assembly Resolution 1783 (XV), 7 December 1962, paragraph 2).
[95] Executive Committee Conclusion 44 is one of the earliest, and possibly the most significant, document relating to the detention of refugees. The final draft of Conclusion 44 was reached during the 1986 Annual Meeting of the Executive Committee and was developed by a Working Group of the Subcommittee of the Whole on International Protection. It was designed to address the ambiguity in Article 31(2), touched on by the President in the Travaux, as to when it can be said to be necessary to restrict the freedom of movement of refugees pending "regularisation" of their status. In its Conclusion, the Committee:
(b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim for refugee status or asylum is based; to deal with cases where refugees or asylum seekers have destroyed the travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they tend to claim asylum; or to protect national security or public order;
...
(d) Stressed the importance
for national legislation and/or administrative practice to make the necessary
distinction between the situation of refugees and asylum seekers, and that
of other aliens... (Emphasis
added).
[97] The UNHCR's guidelines were first published in 1995 to give effect to the principles of Conclusion 44. These were revised and reissued on I0 February 1999. For convenience I will quote from the revised guidelines. Again, the central message is that -
According to Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognised as a basic human right. In exercising this right asylum-seekers are often forced to arrive at, or enter a territory illegally. However, the position of asylum-seekers differs fundamentally from that of ordinary immigrants in that they may not be in a position to comply with the legal formalities for entry. This element, as well as the fact that asylum-seekers have often had traumatic experiences, should be taken into account in determining any restrictions on freedom of movement based on illegal entry or presence. (Emphasis added).
There should be a presumption against detention. Where there are monitoring mechanisms which can be employed as viable alternatives to detention (such as reporting obligations or guarantor requirements [see Guideline 4]), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved their lawful and legitimate purpose. (Emphasis added).
...
The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law. In conformity with EXCOM Conclusion No. 44... the detention of asylum-seekers may only be resorted to, if necessary:
(i) to verify identity.
This relates to cases where identity may be undermined or in dispute.
(ii) to determine the elements on which the claim for refugee status or asylum is based.
This statement means that the asylum-seeker may be detained exclusively for the purposes of a preliminary interview to identify the basis of the asylum claim. This would involve obtaining essential facts from the asylum-seeker as to why asylum is being sought and would not extend to a determination of the merits or otherwise of the claim. This exception to the general principle cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time.
(iii) in cases where asylum-seekers have destroyed their travel and/or identify documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum.
...
(iv) to protect national security and public order. (Emphasis added).
[98] It is then apposite to quote the "Conclusion" in full:
[99] The UNHCR's guidelines have been reiterated time after time. It will suffice, however, to move direct to the Framework document. This document, published in June 1999, was intended to summarise the applicable principles under the Convention. After first referring to the detention of asylum-seekers the Standing Committee of the Executive Committee stated:
(b) The detaining authorities must assess a compelling need to detain that is based on the personal history of each asylum-seeker;
...
(e) Alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention. (Emphasis added).
[104] One further document may be referred to. It is the Report of the Australian Human Rights and Equal Opportunity Commission entitled Those Who're Come Across the Seas: Detention of Unauthorised Arrivals (May 1998) and published in May 1998. It records that international human rights standards permit detention only where necessary. Recommendation 3.1 reads:
R3.2 The grounds on which
asylum seekers may be detained should be clearly prescribed ... and be in
conformity with international human rights law. Where detention of
asylum seekers is necessary it must be for a minimal period, be reasonable
and be a proportionate means of achieving at least one of the following legitimate
aims
[105] I have reached the firm opinion that the Immigration Officer concerned failed to exercise his discretion in accordance with the Act and the Convention to which it seeks to give effect. He was far too quick and ready to detain the respondents. In the result, his decision was inconsistent with the Act, with Government policy and with the Convention. Extrinsic material such as Conclusion 44, the UNHCR guidelines and the Framework document emphasise the default. Detention was not seen as a last resort to be imposed only where necessary and in accordance with the principles and purposes recognised in international law.
[106] As I have indicated, I do not consider it productive to seek to associate this view with any one particular ground of judicial review. It could be addressed under the heading of illegality in that the Officer departed from the requirements of the Act or criteria established under the Act; or of failing to implement policy guidelines or undertakings; or of acting unfairly in the exercise of a statutory power; or of acting unreasonably; or of misdirecting himself in respect to the accepted criteria; or of failing to have regard to relevant considerations. Nor, in so far as the word "presumption" is actually used in Guideline 3 of the UNHCR guidelines, can legitimate expectation as a ground be dismissed from consideration. After all, there is possibly only a thin line between proclaiming a presumption and stipulating criteria which require that recourse be had to detention only where necessary and for exceptional reasons. But irrespective whether this is so or not, applicants for refugee status must certainly have a legitimate expectation that the Immigration Service will have regard to the Act, to Government policy and to the Convention. Any or all of the above grounds are therefore available on the facts. A close examination of those facts and the identification of the abuse of power in issue is more important than the label. It is sufficient that the respects in which the Immigration Officer failed to exercise his discretion in the manner contemplated by his governing statute can be readily identified.
[107] First, reference may be made to the two affidavits of the Manager of the Border and Investigations Section of the New Zealand Immigration Service (referred to in para [81]) above who approved or confirmed all the detentions in issue. The Immigration Officer states in his first affidavit that the New Zealand Immigration Service would be in a much stronger position to remove an applicant for refugee status if the applicant is refused a permit and detained under s 128. He explains in detail how the statutory machinery requiring an airline to return a person who has entered the country unlawfully at the airline's expense does not apply if that person is released or granted a permit. One can readily accept the convenience and saving involved where a claimant for refugee status is detained, but such a consideration is inimical to the strictures requiring detention to be necessary and only resorted to for specified purposes.
[108] The Immigration Officer then addresses the nature and scope of the statutory discretion relating to applications and the issue of temporary permits. Relying on the general provisions such as, for example, s 25, he describes the discretion as "extremely wide". He rejects the claimant's argument based on the Manual. The Manual "cannot be applied totally rigidly", he states, "but must be guided by a discretion relating to the circumstances as a whole, otherwise the discretion which is envisaged by the Act would be nullified by the Manual". When then referring to the Manual, the Officer emphasises that the grant of a temporary permit is a matter of discretion.
[109] There is in this account little indication that the Officer accepts that the general discretion conferred on the Immigration Service in Part I of the Act is necessarily subject to the specific statutory regime introduced in Part VIA relating to refugees, or that the wide discretion which he claims is envisaged by the Act is to be exercised with due regard to Government policy and the Manual. The Officer is under a clear misapprehension. The Act is not "nullified" by the Manual. In saying this the Officer is, in effect, declaring that the Government's published policy is inconsistent with the Act. I do not wish to be thought unduly critical of the Immigration Officer in this respect as the majority in this Court also elevate the general discretion in Part I to a position of predominance. But as I have already pointed out, Part VIA loses its force, and this country's commitment to meet its obligations under the Refugee Convention becomes no more than a piece of window-dressing, if the provisions of Part VIA do not predominate.
[110] The Immigration Officer refers to the legislative changes to s 128. His attitude is perhaps apparent from his opening sentence where he states that the "primary drawback to the use of s 128 in respect of refugee claimants was the limit of twenty-eight days beyond which claimants had to be released from custody if their claims had not yet been finally determined". If released, of course, the airline will not be responsible to return the person to their country of origin at the airline's cost.
[111] In commenting on Part 8 of the Manual, which relates to refugee claimants, the Officer points out that it clearly envisages that persons who on arrival in New Zealand claim refugee status may nonetheless be detained under s 128 of the Act. Of course it does that, but that is not the point. The question is not that claimants for refugee status may be detained under s 128. That is common ground. Rather, the issue relates to the limits of the Immigration Service's discretion to detain claimants for refugee status under s 128 or the criteria by which that discretion is to be exercised.
[112] Concerned to establish that there is a discretion to withhold permits, the Officer further directs attention to the word "may" in the Manual and finds confirmation in the use of the word "normally". As I have already emphasised, the issue is not, and was not then, that there was no power to decline a visitor's permit. The Immigration Officer conveys the impression that, providing he has the discretionary power, that discretion may be exercised without or with little regard to the criteria in the Manual and the Convention.
[113] Apart from some general material and statistics, much of the balance of the first affidavit is taken up with the Immigration Officer's assessment of the applicants' claims in terms of his operational instruction dated 6 October 1999. I will return to that document shortly. (See paras [116] to [124]).
[114] In his second affidavit, the Immigration Officer acknowledges that temporary permits are normally granted to refugee applicants. Detention is described "as an exception to normal policy". But his decisions and earlier explanation do not overtly proceed on the basis that the respondents are exceptions to normal policy or explain why they are perceived as exceptions. Indeed, the converse is the case. His decisions and explanation are directed to showing that the respondents, or persons in their category, fall within regular policy in being refused a visitor' s permit.
[115] When considering whether an application is a case for the issue of a permit and release or a case for detention, the Officer recounts that he considers a variety of factors; age, sex, dependants, nationality or country of origin, flight details, documentation carried, including passport, and the basis of the refugee claim. The application is determined on the basis of a form completed by the claimant and other information which may be available, such as the route taken from the country of origin. The Officer correctly acknowledges that, while the provisions in the Manual are always kept in mind, individual cases have to be considered on their own merits. But he adverts back to the "possible difficulties" referred to in his earlier affidavit. In the event, it is clear that the Officer relied almost solely upon his operational instruction dated 6 October 1999 in making the decisions to decline temporary permits to the respondents. This was the finding of Fisher J in the Court below, and is clear from the documents.
(2) The operational instruction of 6 October 1999
[116] The reliance placed upon the operational instruction dated 6 October 1999 necessitates a close examination of that instruction. Notwithstanding that it is accepted by the majority, I consider it to be an ersatz document. It has no statutory foundation and is inconsistent with the Manual and the Convention.
[117] The Manager of the Border and Investigations Section's circular to staff of 6 October 1999 relates to the use of s 128 in respect of persons who claim refugee status on arrival. It states that it takes into account changes arising from the enactment of the Immigration Amendment Act 1999 and a recent High Court decision. It purports to "supersede any previous instruction and the relevant Manual section". While it is to be expected that an operational instruction from the Manager would supersede any earlier instruction it clearly cannot supersede the Manual which has a firm statutory base.
[118] It is instructive at this point to examine the earlier operational instruction which is superseded. It is undated but was apparently issued in January or February 1998. It also relates to the use of s 128 for persons claiming refugee status. Under the heading "Principles", it is stated:
1. Prohibited under Section 128 of the Immigration Act 1987 from being issued a permit.
2. Whether the claim made at the border is prima facie manifestly unfounded or abusive.
[119] As stated, the operational instruction of 6 October purports to take account of changes arising from the amendment to the Immigration Act and a recent High Court decision. In fact, none of the changes are required by the Amendment or the High Court decision. It is true that s 128 was amended to provide for the period of detention to be extended beyond 28 days subject to a review by a District Court Judge where necessary to allow for that person's application to be properly dealt with or released. See s 128(13). But nothing in the amendment impinges upon the longstanding criteria relating to the detention of persons claiming refugee status at the border. The provision ameliorates the position of the claimant for refugee status who is detained, but it does not have any bearing on the question whether such a claimant should be detained in the first place. It would be far-fetched to suggest that the procedure introduced in the amendment impliedly negates the principle that detention is to be resorted to only where necessary. The High Court decision referred to in the instruction is revealed by the Immigration Officer in his affidavit to be F v Superintendent of Mt Eden Prison [1999] NZLR 420. There is certainly nothing in that decision to warrant a departure from the criteria which had previously been recognised.
[120] The significant redirection in the Immigration Service's approach is to be found in para 2 of the circular. Section 128 is to be normally but not exclusively limited to persons whose claims appear to be "prima facie manifestly unfounded or where the merits of the claim appear not to be strong". It can be seen at once that the phrase "prima facie manifestly unfounded" and the added phrase "where the merits of the claim appear not to be strong" are incompatible. The latter phrase introduces a new and more lenient test and renders any requirement that the claims appear to be prima facie manifestly unfounded otiose. Declining a visitor's permit to a claimant for refugee status where the merits of his or her claim appear not to be strong, with the result that the claimant will be detained in prison, is to diminish the protection from unnecessary detention which the Convention contemplates.
[121] The added phrase also requires the immigration officer to intrude too far into the merits of the applicant's claim. While an immigration officer may be able to assess whether the applicant's claim is "manifestly unfounded" or "abusive" on the basis of the information known to the officer and following an interview on arrival with the claimant, a finding that the "merits of the claim appear not to be strong" requires an assessment of the case which neither the Act, the Convention nor the Manual consider appropriate at that initial stage. In short, the new test is far removed from the direction in C4.25 authorising the grant of a visitor's permit unless a preliminary assessment of the claim indicates that it is "abusive" or "manifestly unfounded" and Y7.5 which states that "a permit may be refused, and a claimant may be detained under s 128 so that a refugee status officer can formally determine the claim," if after interviewing a claimant the preliminary assessment indicates that the claim is "abusive" or "manifestly unfounded".
[122] The extent to which the Immigration Officer entered into the merits can again be illustrated by what happened in this case. In his first affidavit, for example, the Officer explains that not only was "B's" identity unable to be confirmed "but upon assessment his claim to refugee status did not appear to be strong". Yet, the Refugee Status Appeals Authority allowed his appeal holding that his fears were well-founded. Then, take "C". An Airport Immigration Officer advised the United Nations High Commissioner for Refugees that it had been determined that "C's" claim may be considered to be "manifestly unfounded". But in his case the Appeals Authority also found that the claimant had a "well-founded fear of persecution for a Convention reason"! A close review of all the decisions confirms that the Immigration Officer reached conclusions on the merits on the basis of limited information obtained from a form completed by the claimant and a single interview with claimants whose English was non-existent or poor. The conclusion is inevitable that the Immigration Officer entered into the merits to an undue extent and trespassed upon the responsibility of the refugee status officers under ss 129E to 129K of the Act.
[123] The operational instruction then requires the immigration officer to consider the humanitarian aspects of the case and balance these against an assessment of the risk of absconding, the cost and likelihood of detention, the ability to obtain travel documents, the impact on the airline's obligations under the Immigration Act and Annex 9 (1969) of the Convention on International Civil Aviation (1944) in the event that the claim is declined. Annex 9 requires state parties to accept returned passengers who, on arrival at their destination, have not been admitted to that country. While the notion of this balancing exercise is superficially appealing it fails to give the requirement that recourse is to be had to detention only where necessary and for specified purposes the weighting which the Manual and Convention require. Moreover, the impact on the airline's obligations under the Act, which is a recurring theme in the Immigration Officer's decision-making, is self-evidently an illegitimate consideration. In short, the operational instruction sets up its own regime, and it is not the regime contemplated by the Manual or the Convention.
[124] In so far as the Immigration Service relies on this operational instruction to justify the decisions taken to detain the respondents, and as it is approbated by the majority, the legal status of this document becomes important. In fact, it has no statutory footing. It is a purely administrative measure; an instruction to staff at the border as to how to go about their duties when dealing with persons claiming refugee status. Government immigration policy is that policy which must be published by the Minister under subs (1) of s 13A . Under that section, the Minister is required to publish government policy "relating to the rules under which eligibility for the issue of grant of visas or permits is to be determined". Although not so restricted, government policy includes the "insertion of that policy in the departmental manual of immigration instructions and the making available of that manual to the public". See s 13A(2). Policy relating to the grant of temporary permits to claimants for refugee status appears in the Manual (see paras [77] to [84]). Any operational instruction made by the Manager of the Border and Investigations Section cannot fall within the description of Government policy. It is not published by the Minister and it is not made available to the public. It is, indeed, an administrative direction. The notion that an administrator could be able to make policy, as distinct from working within Government policy, by simply issuing an internal office circular is totally unacceptable.
[125] I believe it is incontrovertible that the operational instruction cannot prevail over the Manual or the Convention. The Manager's own instruction cannot supplant the overriding requirement that recourse be had to detention only where necessary for specified purposes.
[126] Before concluding it may be helpful to recapitulate the nature and scope of an immigration officer's discretion:
[128] I consider, however, that due regard should also be had to the UNHCR material. Apart from the other principles I have mentioned, this consideration is required to interpret Art 31(2) and also as a result of New Zealand's endorsement of Art 35(1). See para [90] above. They are factors which would also guide an immigration officer's approach and shape the exercise of his or her discretion. Although not exhaustive, the additional factors may be listed as follows:
[130] It is unnecessary to re-enter upon these respects in detail. The broad headings will suffice. In the first place, and as already emphasised, detention was not approached as an exception or measure of last resort. Detaining a claimant for refugee status where it appears to the immigration officer at the border that the merits of his or her case do not appear to be strong is not to have recourse to detention because it is necessary or for any of the specified purposes. Nor are the criteria met when it appears that a claimant's case may be strong but he or she is refused a visitor's permit and detained because of the balancing test which has been substituted for the recognised criteria. The Immigration Officer's system, based on his perception that the discretionary power conferred on him in Part I of the Act and s 128 is extremely wide, is not the system that immigration officers are obliged to apply having regard to Part VIA of the Act. The Immigration Officer's default is clear-cut and, in my view, is the primary respect in which the Officer has erred in the exercise of his discretion.
[131] Secondly, the Immigration Officer entered upon the merits of the claimants' cases to a much greater degree than is legitimate. Apart from cases where the claim is "abusive" or "manifestly unfounded", the question of the merits is a question for the refugee status officers and not the immigration officers who intercept the refugees at the border. The disparity between the Immigration Officer's assessment of the merits of the respondents' cases and that of the Refugee Status Appeals Authority has been recorded above (para [122]).
[132] Thirdly, the circular makes no mention of the alternatives to detention. Fisher J in the Court below found himself wondering whether the Immigration Service's approach was deficient in failing adequately to consider the possibility of forms of control falling short of detention in a prison. He sets out in full Guideline 4 of the UNHCR handbook relating to alternatives to detention. Monitoring requirements, the provision of a guarantor or surety, release on bail and open accommodation centres are identified as options which, while not exhaustive, provide the state with a degree of control over the whereabouts of asylum seekers while allowing them basic freedom of movement. As Fisher J observed, the present case would seem to have been approached on the basis that a refugee claimant must either be detained in Mt Eden Prison or released into the community with little or no room for compromise between those stark alternatives. Although in fact not able to take the matter further, he sharply observed that our criminal law system could not operate on such a crude basis. My present point, however, is that consideration of alternatives to detention form no part of the operational instruction of 6 October 1999.
[133] In my view, therefore,
the Immigration Officer failed to act with fidelity to his governing statute.
He purported to exercise an "extremely wide" discretion when his discretion
was in fact constrained by Part VIA of the Act, the Convention as explained
by the UNHCR material, and Government policy as contained in the Manual.
A breach of established principles of administrative law relating to the
exercise of a discretion of this order should not be condoned by this Court.
To do so is to depart from a long-standing approach to administrative law,
a departure which is all the more disturbing because the case involves fundamental
human rights and freedoms and the plight of people without trace of a political
voice.
[134] I do not doubt that
the approach adopted by the Immigration Service as evidenced by the operational
instruction of 6 October 1999 and the Immigration Officer's decisions in
this case would fail to withstand the scrutiny of the UNHCR or other appropriate
agency of the United Nations.
[135] I would not,
however, dismiss the appeal in toto. As already indicated, had
the Immigration Officer applied the correct criteria he would have been justified
in detaining the two claimants whom he perceived to be a threat to the APEC
Conference pending in Auckland. The protection of public order is a
legitimate concern and has been expressly recognised. I agree, therefore,
that the Crown's appeal in regard to these two respondents should be allowed.
Then, with respect to the Judge in the Court below, and in deference to the
Crown's concern, I would not circumscribe the Immigration Services discretion
to the extent of holding that there is a presumption in favour of the grant
of a temporary permit. Rather, I would hold that in this case the Immigration
Officer clearly failed to exercise his discretion in accordance with the
Act.
Appeal allowed. Applications
for review dismissed.
Solicitors for the appellant:
Crown Law Office (Wellington)
Solicitors for the respondents:
Vallant Hooker & Partners (Auckland)