Immig

Auckland District Law Society
Recent Developments in Immigration and Refugee Law
Presenter: Rodger Haines, Barrister
Chairperson: Margaret Robins, Barrister
Auckland

INDEX
IMMIGRATION LAW
INTRODUCTION
THE IMMIGRATION AMENDMENT ACT 1991
HUMAN RIGHTS LAW AND IMMIGRATION LAW
PUBLICATION OF POLICY
Government residence policy
Temporary entry
HUMANITARIAN APPEALS TO THE REMOVAL REVIEW AUTHORITY
Delay on the part of the RRA
DEPORTATION REVIEW TRIBUNAL
ASPECTS OF JUDICIAL REVIEW
Departmental reports to Minister
The discretion to grant relief
CITIZENSHIP ISSUES

REFUGEE LAW
INTRODUCTION
A WELL-FOUNDED FEAR
An Objective Test
The Presumption of Protection
REFGUEES SUR PLACE: GOOD FAITH
PERSECUTION
RELOCATION
SOCIAL GROUP
IMPUTED POLITICAL OPINION
EXCLUSION FROM REFUGEE STATUS - ARTICLE 1F
Crimes Against Humanity
Serious Non-Political Crime
Acts Contrary to the purposes and principles of the UN

IMMIGRATION LAW INTRODUCTION
[1] In the context of a seminar paper which ambitiously sets out to address the topic of recent developments in immigration and refugee law, the selection of issues must necessarily be arbitrary and depth must be sacrificed in the interests of breadth of cover.

[2] On one view, the two most important developments in immigration law over the past few years have been:

(a) The enactment of the Immigration Amendment Act 1991;

(b) The recognition by the Courts that immigration law is an aspect of human rights law, and that it is appropriate for immigration decisions to be informed by broad principles of human rights.

[3] This paper will look first at the 1991 statutory amendment and then examine recent caselaw which has emerged in the period 1995 to 1996.
THE IMMIGRATION AMENDMENT ACT 1991

[4] The Immigration Amendment Act 1991 made radical amendments to the Immigration Act 1987. The principal ones being:

(a) Imposing a duty on the Minister to publish immigration policy generally, and Government residence policy in particular: ss 13A, 13B & 13C.

Contemporaneously the points system was introduced and a new policy manual published - the NZIS Operational Manual.

Visa officers and immigration officers now have a mandatory statutory duty under s 13C to make all decisions in relation to a residence visa or residence permit application in terms of Government residence policy applicable at the time the application is made.

(b) Secondly, the Minister was removed from front-line decision making by the setting up of two new independent statutory tribunals:

The Residence appeal Authority (RAA) which hears appeals against decisions by the Immigration Service (NZIS) to decline residence visa or residence permit applications. See ss 18B to 18F.
The Removal Review Authority (RRA) which hears humanitarian appeals by overstayers who have been ordered to leave New Zeadland. See ss 63, 63A to 63E.

The Minister retains an overriding jurisdiction to make permit decisions by special direction. See s 130.

(c) Thirdly, the removal process for those in New Zealand illegally was simplified. Removal orders are now issued administratively by an immigration officer, not a Court. There has been virtually no caselaw on this new procedure and it is not intended to address it in this seminar.

[5] Against this background it is possible to turn to the interplay between human rights law and immigration law

HUMAN RIGHTS LAW AND IMMIGRATION LAW

[6] New Zealand is a party to a number of international human rights instruments. Only two need be mentioned here.

[7] The first is the International Covenant on Civil and Political Rights 1966 (ICCPR), with its First Optional Protocol. By virtue of the latter, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Human Rights Committee.

See generally:

Elkind, "The Optional Protocol: A Bill of Rights for New Zealand" [1990] NZLJ 96-101.

Elkind, "The Optional Protocol and the Covenant on Civil and Political Rights" [1991] NZLJ 409

Legal Aid is available for such communications:

Tangiora v Wellington District Legal Services Committee (High Court, Wellington, CP 125/96, 27 November 1996, Gallen J); [1997] BCL 35.

[8] The second is the Convention on the Rights of the Child 1989 (CORC).

The Convention contains specific provisions concerning the separation of a child from his or her family against his or her will and specifically provides in Article 3(1) that in all actions concerning children undertaken by public authorities, the best interests of the child "shall be a primary consideration".

[9] Clearly the provisions of the ICCPR and CORC are relevant in the deportation context.

This was recognised by the Court of Appeal in Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA). Tavita had exhausted all his appeal rights prior to the birth in New Zealand of his daughter. The issue was whether the Minister, in deciding whether to execute the removal order, was required to take the interests of the child into account. In the context of an interim order application under s 8 of the Judicature Amendment Act 1972, the Court of Appeal said no more than that it was arguable that there was such an obligation.

The Court did observe, however, that it would be hesitant to accept the Minister's argument that he and the NZIS were entitled to ignore international instruments as this implied New Zealand's adherence to the Covenant and the Convention were partly window-dressing. It added that the bearing on domestic law of international human rights is undergoing evolution. The Court drew upon decisions of the European Court of Human Rights.

[10] To the credit of the Minister and the NZIS, the policy concerning removals was amended from 1 November 1994. Where a person is subject to removal, family circumstances and changes in family circumstances will now, as a matter of policy, be considered when decisions are made about what removal action, if any, will be taken. Each case will be looked at individually.

An example of the new policy in action is to be found in Elika v Minister of Immigration [1996] 1 NZLR 741, 746-747 (Williams J).

[11] The Court of Appeal has on three further occasions considered the nature and extent of New Zealand's obligations under CORC to New Zealand-born children:

(a) Puli'uvea v Removal Review Authority (1996) 14 FRNZ 322 (CA)

Husband and wife overstayers had four children in the course of their stay in New Zealand. Their appeal to the Removal Review Authority was unsuccessful. The father was removed from New Zealand in 1995. The mother argued that the Authority had not properly considered the position of the New Zealand-born children. The NZIS pointed out that prior to execution of the mother's removal order, a Tavita exercise had been conducted in accordance with the new policy.

It was held:

Although the Authority's decision did not directly refer to the relevant international obligations in the ICCPR and CORC, it did directly address the humanitarian considerations relating to the family and children. As a matter of law, there was no need to make explicit reference to the text of any relevant international obligation. Consideration of its substance is all that is required.
Under Article 3 of the CORC, the best interests of the child are a primary, but not the paramount, consideration in official actions concerning children. In the immigration context, the starting point is not the rights of the child or family, but the position of a person who is unlawfully in the country or being deprived of residence rights.
Section 63B of the Immigration Act 1987 can be read consistently with both the ICCPR and the CORC and the Courts have a duty to strive to do so, especially as the predecessor to s 63B was enacted in order to implement relevant provisions of the ICCPR before ratification.

(b) Puli'uvea v Removal Reveiw Authority [1996] 3 NZLR 538 (CA)

Mrs Puli'uvea applied for leave to appeal to the Privy Council. Leave was refused on the grounds (inter alia) that:

The claim that the Court had stepped away from Tavita was rejected as mistaken.
It had not been necessary, on the facts, to address the broader issue of the status of human rights treaties within the New Zealand legal order. There was in truth no question of great general or public importance involved in the appeal.

The residence permits held by Mr and Mrs Rajan were revoked. They had one Australian-born child who accordingly had the right of residence in New Zealand. There was also one New Zealand-born child.

The Court found that the Minister, in making the revocation orders had not conducted an overall review of the interests of the family or of the child, but found it unnecessary to rule whether the matters indicated by the ICCPR or CORC were mandatory relevant considerations. This was because the Rajans had appealed to the Deportation Review Tribunal where all the relevant humanitarian considerations could be presented. Furthermore, if Mrs Rajan was successful in resisting the proposed revocation of her New Zealand citizenship, she would have the right of residence in New Zealand.

The Court did helpfully list, by way of observation, significant factors for and against reading the power of revocation under s 20 of the Immigration Act 1987 as subject to international obligations.

[12] In conclusion, there is still no definitive Court of Appeal ruling on the status of human rights treaties within the New Zealand legal order; cf the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. See in this regard the subsequent Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General Michael Lavarch - International Treaties and the High Court decision in Teoh (10 May 1995).

[13] How, in the meantime, has the High Court applied Tavita?

(a) Elika v Minister of Immigration [1996] 1 NZLR 741 (Williams J)

The Court emphasised that the interests of New Zealand-born children are a consideration required to be taken into account pursuant to the ICCPR and CORC, and although those considerations might well be important in any particular case, there was nothing appearing in either of the conventions or in the authorities to make the welfare of such children the paramount consideration in deciding whether or not a removal order should be enforced.

It was further held that while s 3 of the Immigration Act 1987 guaranteed the right of New Zealand-born children as New Zealand citizens to be in New Zealand at any time and protected them from removal or deportation, the removal of their mother did not necessarily infringe that right. Although there were obvious practical difficulties arising out of Mrs Elika's removal, she had the choice of leaving the children in New Zealand or taking them with her.

(b) Singh v Minister of Immigration (High Court, Auckland M1321/95, 18 July 1996, Robertson J); [1996] BCL 977

Held that the permit applicant and not the child could be the starting point for the Tavita exercise and that while convention obligations are important factors to be weighed, this is not the totality of the position.

(c) Patel v Chief Executive, Department of Labour (High Court, Wellington CP142/95, 14 August 1996, Grieg J); [1996] BCL 1051

Held that there must be a balancing between the international obligations and the statutory provisions and immigration policy itself.

(d) Raju v Chief Executive, Labour Department (High Court, Wellington AP307/95, 8 October 1996, McGechan J); [1996] BCL 1328

The decision of the Removal Review Authority was set aside because while the Authority had referred to Tavita in a way which might indicate that the general rights and interests of the child had been considered, the Court was not satisfied that the Authority's decision had looked at Article 3(1) of CORC in the more general way required.

It may be inferred from the decision that "tokensim" in decision-making is unacceptable.

(e) Mohamud v Minister of Immigration (High Court, Wellington AP262/95, 11 November 1996, Chisholm J)

A decision of the Deportation Review Tribunal was set aside because there was no hint that the Tribunal had accorded any primacy to the situation of the children as part of the overall weighing process.

[14] As to decisions of the Deportation Review Tribunal, the following cases illustrate the application of Tavita within the Tribunal's jurisdiction:

Etuati v Minister of Immigration [1994] NZAR 378
Maka v Minister of Immigration [1994] NZAR 412

PUBLICATION OF POLICY

Government residence policy

[15] Government residence policy must be published and applied by immigration officers (ss 13B & 13C).

Section 13B restricts "the kinds of policy" which may constitute Government residence policy to the "kinds" listed in s 13B(3).

This permits a challenge to Government residence policy on vires grounds: Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102 (Baragwanath J). The plaintiff challenged the procedures for obtaining reports from medical referees and the prescription of a conclusive standard of proof. He succeeded on the first ground but failed on the second.

Following the High Court decision, the Humanitarian policy was substantially re-written, illustrating (as with Tavita) the rapid changes that can follow in the wake of Court decisions. The new policy prescribes (inter alia) the civil standard of proof.

A ruling by the Court of Appeal on appeal (hearing 3 February 1997) is awaited. It is expected that the decision will rule on the lawfulness of Government residence Humanitarian policy prescribing any standard of proof.

Temporary entry policy

[16] Section 13A requires publication of Government policy relating to temporary permits (visitor, student, work). But there is no statutory requriement that the policy be applied.

However, natural justice consequences flow from the publication of policy statements. For example they are relevant criteria to administrative decision-making. They must be taken into account, or departed from only if the individual who would thereby be adversely affected has been given a chance to argue for their application her or him. The subject is too large to be dealt with in this paper. It is intended to refer only to recent immigration decisions which have directly addressed the point.

[17] In Chen v Minister of Immigration [1992] NZAR 261, 269 (CA) it was held that the NZIS manual is only a guide for immigration officers. While this decision was given on a set of facts which pre-dated the coming into force of the Immigration Amendment Act 1991, the decision is directly relevant to Government immigration policy other than residence policy.

In Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA) it was held that while the manual was a helpful guide, a decision-maker could not close her mind to evidence or argument purely on the basis that it fell outside the guidelines in the manual. The Court also held that the administrative law significance of misinterpreting voluntarily adopted rules or guidelines depended upon the context in which the misinterpretation occurred. In the majority of cases the misinterpretation would vitiate the decision upon the ground that it constituted an error of law, produced unreasonableness in the administrative law sense, frustrated a legitimate expectation, or caused a decision-maker to stray beyond the authorised scope of her authority.

[18] In Talley's Fisheries Ltd v Minister of Immigration (High Court, Wellington CP201/93, 10 October 1995, McGechan J) the Court, while accepting that s 13A did not require obligatory implementation of temporary permit policy, nevertheless found that it was implicit that the policy was a mandatory relevant consideration. But there was room for consideration of other relevant factors, which in themselves might furnish justification for departure from the policy.

[19] There is therefore fruitful administrative law territory to explore when a temporary permit application is declined because the applicant falls outside policy, or where the decision is that while the application is within policy, it is nevertheless to be declined.

[20] The next topic to be addressed is that of humanitarian appeals to the Removal Review Authority.

HUMANITARIAN APPEALS TO THE REMOVAL REVIEW AUTHORITY

[21] On the face of it, appeals to the RRA are straightforward. Provided the appeal is in time, and has been brought in proper form, the simple issue is whether, on the facts, the statutory criteria prescribed by s 63B(2) have been made out:

"(a) Because of exceptional circumstances of a humanitarian nature, it would be unjust or unduly harsh for the person to be removed from New Zealand, or, as the case may be, for the removal order to remain in force for the full period of five years following the person's removal from New Zealand; and

"(b) It would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand or, as the case may be, to reduce the period during which the removal order would otherwsie remain in force following the person's removal from New Zealand."

[22] The most notable feature of post-1991 jurisprudence has been the quest to define "exceptional circumstances of a humanitarian nature" and "unjust or unduly harsh".

There must be limited utility to any extra-statutory definition offered by the Courts as the statutory formula has necessarily been couched in general terms to encompass the myriad human circumstances which are bound to arise, and judicial "explanation" of the words is not perhaps helfpul, especially as the process can end in a "reading down" of the language and a formalistic approach to what is clearly intended to be a compendious and flexible phrase requiring an overall judgment by the decision-maker.

[23] Be that as it may, appellants now trawl through the burgeoning list of authorities looking for a word or phrase that might suggest a liberal or more easily obtainable threshold while the RRA itself faces the same temptation when searching for a phrase more sympathetic to its own approach to the section.

[24] See for example the cases collected in:

Nikoo v Removal Review Authority [1994] NZAR 509, 518 (McGechan J)
Patel v Removal Review Authority [1994] NZAR 560, 565 (Eichelbaum CJ)
Ronberg v Chief Executive of Department of Labour [1995] NZAR 509, 524 (McGechan J)
Ronberg v Chief Executive of Department of Labour (High Court, Wellington AP307/95, 11 October 1996, McGechan J); [1996] BCL 1329

[25] Possibly the most important of these decisions is that of Ronberg v Chief Executive of Department of Labour [1995] NZAR 509, 524 as it collects and discusses most of the jurisprudence to mid-1995. The following observations were made in the course of the Court rejecting the interpretation of the statutory criteria adopted by the RRA at that time:

Synonyms are no more than approximations designed to assist analysis. There remains significant verbal leeway (p 526).
It pays to return to the actual statutory words. The run of authority is that "exceptional circumstances" encompass circumstances in a range from "very unusual" to "out of the ordinary". Distinctions between "very unusual/rare" and "out of the ordinary/abnormal" would be precious (p 526).
While meaning is to be given to the statutory words, it is a meaning with an emphasis on flexibility and degree. Circumstances are never "closed". Moreover, there is room for expansion.

[26] The Ronberg case can also be cited as an example of the dangers inherent in the "trawling" process. The trawler on this occasion was the RAA itself.

In the first Ronberg decision at [1995] NZAR 509, the case was remitted to the RRA for reconsideration. In delivering its reconsidered decision, the RRA made no mention of the detailed, if not exhaustive discussion of the meaning of "exceptional circumstances" to be found in the first High Court decision. Instead, the Authority cited an unreported decision of Grieg J in Patel v Removal Review Authority (High Court, Wellington CP189/94, 3 November 1994). When the second RRA decision came before McGechan J in Ronberg v Chief Executive of Department of Labour (High Court, Wellington AP307/95, 11 October 1996) he found the failure to cite his first decision "curious".

Decision-makers in this area, in citing High Court decisions, will have to avoid creating the impression that precedent decisions have been selectively cited in order to justify a particular outcome. The overwhelming weight of authority is to the effect that the phrase "exceptional circumstances of a humanitarian nature" does not constitute some kind of fixed absolute, but is susceptible to degrees and that one set of circumstances may just amount to exceptional circumstances of a humanitarian nature while another set may cry aloud as to their exceptionality and their humanitarian qualities (Tofa v Maxwell (High Court, Wellington M145/94, 9 July 1991, Savage J); Rajend Singh v Removal Review Authority (High Court, Auckland HC17/95, 15 June 1995, Anderson J)).

As pointed out by McGechan J in the second Ronberg decision, it is to be remembered that while synonyms or the like can be helpful in analysis, the phrase is to be read as part of an entirety.

[27] Other recent cases include:

Tcherepenine v Chief Executive, Department of Labour (High Court, Wellington AP79/96, 8 October 1996, McGechan J); [1996] BCL 1283 - the RRA was correct to refer to the preamble and purpose of the Immigration Act and on the facts, it did not give undue emphasis to the purposive element. The context was taken into account and the Authority was not unduly restrictive. There was nothing exceptional about the appellant's prospective drop in living standards by returning to his home country. The appellant had not shown a likelihood of extreme deprivation.
Talukder v Removal Reveiw Authority (Court of Appeal, CA54/95, 21 June 1995); [1995] BCL 546. This decision examines the extent to which the RRA can rely on a decision of the Refugee Status Appeals Authority in the same case in which refugee status was declined.
Raju v Chief Executive, Labour Department (High Court, Wellington AP307/95, 8 October 1996, McGechan J); [1996] BCL 1328.

Delay on the part of the RRA

[28] Section 63D(1) imposes on the RRA a duty to determine appeals "with all reasonable speed".

In two decisions delivered by McGechan J on 8 October 1996, namely Tcherepenine v Chief Executive, Department of Labour (High Court, Wellington AP 79/96, 8 October 1996, McGechan J); [1996] BCL 1283 and Raju v Chief Executive Labour Department (High Court, Wellington AP307/95, 8 October 1996, McGechan J); [1996] BCL 1328, it was held that delay by the RRA did not constitute an error of law for the purposes of an appeal under s 115A of the Act. In Raju the delay was two years.

Because the context did not require it, these two decisions do not address possible administrative law remedies and in particular the availability of mandamus.

DEPORTATION REVIEW TRIBUNAL

[29] Criminal offenders who hold residence permits and who are served with a ministerial deportation order can appeal to the DRT. The Tribunal may quash the deportation order if it is satisfied that it would be unjust or unduly harsh to deport the individual from New Zealand, and that it would not be contrary to the public interest to allow the appellant to remain in New Zealand: s 105 Immigration Act 1987.

[30] A question has arisen as to whether the statutory formula casts an onus on the appellant to demonstrate that it would be unduly harsh to deport him and that it would not be contrary to the public interest to allow him to remain in New Zealand.

[31] Two unreported decisions hold that there is such an onus, namely:

Tanu v Minister of Immigration (High Court, Wellington M270/81, 28 October 1981, Davison CJ)
Rajan v Minister of Immigration (High Court, Auckland M1551/94, 31 July 1995, Tompkins J)

However, in Patel v Removal Review Authority (High Court, Auckland M1304/93, 22 October 1993) Williams J determined that the legislation used the formula "if it is satisfied" deliberately to avoid the introduction of any concepts of burden of proof or different standards of proof.

[32] In Faavae v Minister of Immigration [1996] 2 NZLR 243 (Anderson J) the DRT, following Tanu and Rajan, held that s 105 imposed a "substantial" onus.

Anderson J preferred Patel to Tanu and Rajan. At 249 he held that there is no presumption one way or the other as the DRT sets about its task. It makes an original (and independent) finding, and its function is not to determine whether the decision made by the Minister is wrong. The standard of proof is balance of probabilities.

ASPECTS OF JUDICIAL REVIEW

[33] Within the confines of a short paper such as this, it is not possible to venture too far into the administrative law field.

Only two points are made.

Departmental reports to Minister

[34] Most ministerial decisions under the Immigration Act 1987 are made on the basis of department reports. The decision of Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) establishes that a Minister bears responsibility for a misleading or inadequate report.

This principle was recently applied in Nand v Attorney-General (High Court, Wellington CP559/92, 13 December 1995, Gallen J) where at p 14, the Court emphasised that the material must be assembled in a balanced and fair way and must be as complete as it is possible in the circumstances to make it. It should also be borne in mind that the material is presented to a busy Minister who is dependent for the research and indeed the emphasis, on his departmental advisors and who is required to deal with a very large number of applications. In those circumstances, the method of presentation is a matter of the greatest significance. On the facts, it was held that the matter was so couched that the Minister was almost inevitably led to the decision he came to. The decision was set aside and an order made that the Minister reconsider the case.

The discretion to grant relief

[35] Section 4(1) of the Judicature Amendment Act 1972 provides that the High Court has a discretion to grant relief, a discretion which can be exercised in an applicant's favour, notwithstanding any right of appeal possessed by the applicant.

[36] The decision in Rajan v Minister of Immigration [1996] 3 NZLR 543 (CA) highlights, however, that the Courts may require the exercise of appeal rights (and many are conferred by the Act) and other remedies before accepting that the Court's jurisdiction under the Judicature Amendment Act 1972 is engaged. There, residence permits had been revoked by the Minister. The Court held that the existence and utilisation of the appeal provisions contained in ss 21 and 22 (to the High Court and to the DRT) would in many cases make review inappropriate.

[37] A further principle (which is clearly beneficial to a plaintiff), is that in general, the Courts will be slow to deny a remedy on the ground that the result of further consideration by the decision-maker is inevitable failure: Chiu v Minister of Immigration [1994] 2 NZLR 541, 552 (CA):

"Of course in administrative law matters the Courts have a discretion to withhold a remedy even where the substantive foundation for one has been made. And since administrative law remedies are inherently discretionary, one could never exclude the possibiilty that a decision-maker's prediction that the same result would follow could provide the foundation for refusing a remedy. But we think that the Courts will be slow to deny a remedy on that basis alone."

CITIZENSHIP ISSUES [38] The Minister of Internal Affairs has of late been exercising his power under the Citizenship Act 1977 to revoke grants of citizenship where he is satisfied that the grant was procured by fraud, false representation, or wilful concealment of relevant information, or by mistake.

The procedure is to be found in ss 17 and 19 of the Citizenship Act 1977. A notice of intention to deprive citizenship must be given and the person affected then has a right to apply to the High Court for a declaration that there are insufficient grounds to justify the making of an order depriving the applicant of citizenship.

Note that the statutory inquiry is very narrow and does not encompass administrative law of New Zealand Bill of Rights Act 1990 issues. For this reason, thought must be given to whether collateral review proceedings should be instituted parallel with the s 19 appeal.

[39] Two recent High Court decisions are relevant:

(a) Heng v Minister of Internal Affairs (High Court, Auckland M616/95, 24 April 1996, Salmon J); [1996] BCL 561

In this decision it was held that provided fraud is established in the obtaining of the grant of citizenship, it is not relevant that the person on whom citizenship was conferred was personally innocent of fraud.

(b) Rajan v Minister of Internal Affairs (High Court, Auckland, M1040/95, 5 November 1996, Anderson J); [1997] BCL 55.

If mistake is the ground relied on by the Minister, it is not necessary for him to show that the mistake was causative of the grant of citizenship. It is sufficient that it was a substantial cause.

REFUGEE LAW

INTRODUCTION

[1] New Zealand acceded to the 1951 Convention Relating to the Status of Refugees on 30 June 1960 (New Zealand Treaty Series 1961 No 2). It acceded to the 1967 Protocol Relating to the Status of Refugees on 6 August 1973 (New Zealand Treaty Series 1973 No 21).

In this paper the Convention and Protocol will be referred to as "the Convention".

[2] For a description of the New Zealand refugee determination process generally see RPG Haines, The Legal Condition of Refugees in New Zealand (1995, Legal Research Foundation) pp 1-6.

[3] In this part of the paper it is intended to refer to New Zealand jurisprudence only as the very substantial developments in Europe, the United Kingdom, Canada, the United States of America and Australia are beyond the scope of this seminar.

[4] As far as the substantive law of refugee status is concerned, the law in New Zealand has been developed almost exclusively by the Refugee Status Appeals Authority. This is because the only cases to reach the High Court have raised procedural or natural justice issues. See for example:

Sing v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J) - general discussion of the determination system.
Santokh Singh v Refugee Status Appeals Authority (High Court, Auckland M1224/93, 9 February 1994, Smellie J) - duty to give adequate opportunity to consider material on which the RSAA intends to rely.
Khalon v Attorney-General [1996] 1 NZLR 458 (Fisher J) - whether warning of adverse finding of credibility must be given.
Zhan v Refugee Status Appeals Authority (High Court, Auckland M47/95, 8 March 1996, Morris J); [1996] BCL 383 - allegation of bias rejected.

The only exception is Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland A993/83, 29 November 1985, Chilwell J) (final judgment). In addition to making findings on the administrative law issues, Chilwell J made important observations concerning the interpretation and application of aspects fo the refugee definition.

[5] The recent jurisprudence of the RSAA selected for this paper relates to the Inclusion Clause provisions of Article 1A(2) and the Exclusion Clause provisions of Article 1F.

Article 1A(2) relevantly provides that a refugee is a person who:

"... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."

Article 1F provides:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

A WELL-FOUNDED FEAR

[6] In the Authority's first decision, Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) 7, the Authority adopted the "real chance" test formulated by the High Court of Australia in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

This test was re-affirmed by the Authority in Refugee Appeal No. 523/92 Re Rs (17 March 1995) 23.

In essence, a "real chance" of persecution conveys the notion of a substantial, as distinct from a remote or insubstantial chance of persecution occurring. This test can be satisfied notwithstanding that there is less than a 50 per cent chance of persecution occurring and indeed, McHugh J in Chan at 429 pointed out that a fear may be well-founded even though there is only a 10 per cent chance of persecution. But it is misleading to talk in terms of percentages.

An Objective Test

[7] The relevant phrase is:

"... a well-founded fear of being persecuted for [a Convention reason]."

Two points arise:

(a) The adjectival phrase "well-founded" qualifies "persecution", ie the persecution element is objective.

(b) The Convention reason element is also objective.

In fact the whole inquiry is an objective one.

[8] However, since the Authority's very first decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) it has been the custom of the Authority to formulate the principal issues arising from the Inclusion Clause in the following terms:

1. Is the appellant genuinely in fear?

2. Is it a fear of persecution?

3. Is that fear well-founded?

4. Is the persecution feared persecution for a Convention reason?

With the passage of time it was found that issue 2 was often read as requiring an assessment whether, in the opinion of the appellant, persecution awaits in the country of origin. The Convention, however, requires the issue to be determined on the objective facts as found by the decision-maker.

Likewise, issue 4 was too often read as requiring an assessment whether, in the opinion of the appellant, a Convention reason is present for the anticipated persecution. This too is erroneous.

In the result, decison-makers overy often "subjectivized" issues 2 and 4 with the consequence that it was quite possible for a refugee claimant to receive an affirmative answer to issues 1, 2 and 4, even though the claim to refugee status had no objective basis whatsoever.

[9] These errors were identified and discussed in Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) 11-15. The Authority concluded that the test as formulated in the 11 July 1991 decision potentially placed an unnecessary focus on the subjective fear of the appellant by prefacing each question with the word "fear". In the result, a considerable part of the inquiry could be erroneously conducted from the standpoint of the claimant.

Having identified the fallacy of this approach the Authority decided that proper recognition had to be given to the fact that the focus of the Convention is not on the facts as subjectively perceived by the appellant, but on the objective facts as found by the decision-maker. In short, before the Convention criteria can be satisfied, there must be a well-founded fear of persecution. In the light of these considerations, the Authority has now adopted a formulation of the issues which more accurately follows the Convention. Since September 1996, the formulation of the issues has been as follows:

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

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

Those preparing submissions for the Refugee Status Branch and the Refugee Status Appeals Authority should now be using the new formulation in their submissions.

The Presumption of Protection

[10] As will have been noted, Article 1A(2) requires not only a well-founded fear of persecution for a Convention reason, but also that the assylum-seeker be unable or, owing to fear, unwilling to avail herself of the protection of the country of her nationality (which for present purposes will be assumed to be the country in which the persecution is feared).

[11] The protection principle has rightly been described as the "lynch-pin" of the Inclusion Clause: Canada (Attorney General) v Ward [1993] 2 SCR 689, 722 and at 724. The Supreme Court of Canada held that the onus was on the refugee claimant to provide "clear and convincing confirmation" of a state's inability to protect. Absent such evidence, the refugee claim should fail as nations should be presumed capable of protecting their citizens.

This principle was incorporated into New Zealand refugee jurisprudence by Refugee Appeal No. 523/92 Re RS (17 March 1995) at 35-37.

[12] The significance of this principle is most clearly seen in the context of manifestly unfounded cases where the asylum-seeker is a national of a country where persecution does not occur, or seldom occurs. Recent examples are:

United States of America (Refugee Appeal No. 70074/96 Re ELLM (17 September 1996); Refugee Appeal No. 2144/95 Re KRR-C (25 April 1996)).
Fiji (several cases).
Italy (Refugee Appeal No. 2067/94 Re MMMOAH (4 July 1996)).

REFUGEES SUR PLACE: GOOD FAITH

[13] The Refugee Convention applies not only to persons who flee their home country to escape persecution, it also applies to a person who becomes a refugee "sur place" due to circumstances arising in her country of origin during her absence. So that, for example, a person may become a refugee sur place as a result of expressing her political views outside of her country of nationality.

[14] The obvious question which arises is whether refugee status is to be granted to an individual who, having no well-founded fear of persecution, deliberately creates circumstances exclusively for the purpose of subsequently justifying a claim for refugee status.

[15] This issue is specifically addressed in Refugee Appeal No. 2254/94 Re HB (21 September 1994) where the individual, having been declined refugee status both by the RSB and by the RSAA, deliberately sought out publicity and deceitfully presented the facts of his case for the sole purpose of creating a pretext on which to found a second refugee aplication. The RSAA, having found that the appellant had not acted in good faith, ruled that as a matter of law there is a good faith requirement in the sur place situation. In the result the individual was found to fall outside of the Refugee Convention.

[16] Practitioners should be aware of this ruling when advising an asylum-seeker who is tempted to undergo a religious conversion for no other purpose than to advance an asylum claim, or who is tempted to seek out publicity in order to further their claim for refugee status. The case of Refugee Appeal No. 2254/94 Re HB is very much a cautionary tale.

PERSECUTION

[17] Possibly the most significant recent decision addressing the persecution issue is Refugee Appeal No. 2039/93 Re MN (12 February 1996). The appellant was a 36-year-old single woman from Iran of Arab ethnicity. Members of her family had been deeply involved in anti-regime activities. Some had been imprisoned and tortured. She herself had had no such involvement and held a responsible position as an anaesthetist's technician working in an operating threatre. But because of her ethnicity and family background she was treated by the authorities with deep suspicion and was closely, if not unbearably, supervised and harassed at work.

At home, she lived in a rigidly patriarchal society comprising her extended Arab family in which any significant decision concerning female members was made by men, and the methods by which female members of the family were controlled could be described as extreme.

A mature, strong and outspoken individual, she desired the same rights and freedoms as men and believed that women are entitled to recognition as full, equal human beings and that women have the right to function as autonomous and indepenent individuals.

Her case therefore involved a mixture of discrimination, public/private persecution and gender issues.

[18] As to persecution, the Authority affirmed that refugee law should concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard. It held (inter alia) that:

The standard to be applied in New Zealand for assessing whether there is a sustained or systemic violation of basic human rights is an international standard, namely the so-called International Bill of Rights comprising the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, and the International Covenant on Economic, Social and Cultural Rights 1966. In this regard it should be mentioned that the RSAA's jurisprudence has been informed by Professor Hathaway's theory of persecution based on these instruments and the hierarchy of rights found in them. See James C Hathaway, The Law of Refugee Status (1991) 101-124.
As a conseqence of applying an international standard, the Authority rejected the argument, based on cultural relativity, that New Zealand as a "Western" country cannot assess human rights in the country of origin of an asylum seeker.

On the facts, refugee status was granted on the grounds of religion and political opinion. The political opinion ground is interesting perhaps for the recognition, in the Iran context, of the political nature of seemingly private acts of and harm to women. That is, the RSAA analysed first the claimant's case at the state or broader societal level and concluded, in the rather extreme Iranian context, that behind the facade of religion was a system for the acquisition and maintenance of political power by men, a system from which women are purposefully excluded.

As to the persecution feared at the hands of family members, the conclusion reached was that the same system which operated at state level operated at the family level. The Authority found that the denial of women's civil and poiltical rights at state level in Iran mirrored their denial at family level, and vice versa. In short, the facts established that there was no public/private distinction. The religious and political imperatives operated to an equal degree and on the same plane in both spheres.

RELOCATION

[19] As previously mentioned, a fundamental premise on which the Convention is based is the principle of national protection:

"... is unable or, ... is unwilling to avail himself of the protection of that country."

The intention was that international protection under the Convention only comes into play where the maltreatment anticipated is demonstrative of a breakdown of national protection.

Where the failure of protection is regionalized and the effective protection is accessible elsewhere in the state, it can be said that refugee status is not warranted.

In New Zealand, this principle is referred to as the Relocation principle. In other jurisdictions it is known as the Internal Flight Alternative (IFA).

[20] The Relocation principle has been developed by the RSAA through a line of cases which includes: Refugee Appeal No. 11/91 Re S (5 September 1991); Refugee Appeal No. 18/92 Re JS (5 August 1992) and Refugee Appeal No. 135/92 Re RS (18 June 1993). The most recent detailed examination is in Refugee Appeal No. 523/92 Re RS (17 March 1995).

In short, the decisions establish that relocation turns on two issues:

(a) Can the individual genuinely access domestic protection which is meaningful?

(b) Is it reasonable, in all the circumstances, to expect the individual to relocate?

In other words, before an individual possessing a well-founded fear of persecution can be expected to relocate within the country of origin, it must be possible to say both that meaningful domestic protection can be genuinely accessed by that person and that in all the circumstances it is reasonable for that individual to relocate.

SOCIAL GROUP

[21] The Convention has a very narrow focus, enumerating only five grounds of persecution as warranting the surrogate protection of the international community: race, religion, nationality, membership of a particular social group and political oopinion.

[22] The challenge to decision-makers is to keep the Conevntion relevant to contemporary human rights crises in the 1990s while respecting both the specific situation known to the drafters and the more general commitment to grounding refugee claims in civil or political status.

[23] The RSAA's earliest exploration of the issues was in the context of a PRC one-child family policy case: Refugee Appeal No. 3/91 Re ZWD (20 October 1992).

But there is now a much more detailed analysis in Refugee Appeal No. 1312/93 Re GJ (30 August 1995) which addresses the issue whether homosexuals in Iran constitute a particular social group.

In answering this issue in the affirmative, the Authority examined a considerable body of caselaw from Australia, Canada, the United States of America, the United Kingdom and Europe.

The Authority declined, however, to give to the social group category a wide meaning as this would enlarge the category to an almost meaningless degree. Instead, the Authority held at p 51 that:

the social group category is firmly wedded to the principle of the avoidance of civil and political discrimination.
the category is restricted to claimants who can establish a nexus between who they are or what they believe and the risk of serious harm. That is, there must be an internal defining characteristic shared by members of the particular social group. This will occur when the mebers of the group share a characteristic that is beyond their power to change, or when the shared characteristic is so fundamental to their identity or conscience that it ought not be required to be changed. Put another way, the nexus criterion is satisfied where there is a shared defining characteristic that is innate or unchangeable or, if voluntary association is involved, where that association is for reasons so fundamental to the human dignity of members of the group that they should not be forced to foresake the association.

[24] Because there is little understanding of the social group category, it is often erroneously prayed in aid in wholly inappropriate circumstances. See for example Refugee Appeal No. 70146/96 Re JS (30 August 1996) where it was claimed that Sikhs who have unsuccessfully applied for asylum constitute a particular social group. In rejecting this claim, the Authority made the following points:

Both logic and sense would dictate that counsel should advance on behalf of a client the most appropriate Convention ground justified by the facts of the case. So that if the political opinion ground (actual or imputed) is more directly relevant, that should be the basis of the application.
If a claim is to be made that a refugee claimant is a member of a particular social group, there must be sufficient evidence to justify the claim.
Merely because a group may be a statistical group comprising individuals who have acted in a similar way, this does not necessarily lead to a fidning that it is a social group as defined in the cases cited in the decision.
The group must be a social group, and there must be evidence that it is a cognisable group in society in the country of origin.
The group must take its identity from a shared, internally-defining characteristic.
Finally, the Convention requires not only that the refugee claimant be a member of a particular social group, but also that the fear of persecution be for reason of such membership. In other words a nexus must be established between the membership of the particular social group and the anticipated persecution.

[25] The precise boundaries of the social group category may ultimately be incapable of exhaustive definition because of the flexibility inherent in the refugee definition, the special rules of interpretation which apply to international treaties and ultimately, because it is unwise to define what is itself a definition.

Cases involving gender issues will present a real challenge, not so much because gender cases are inherently difficult, but because they present a challenge to our understanding of the distribution of power in societies. Too often there is a reflexive tendencey to see women's isseus as belonging to the social group category. While this may be appropriate in some cases, in other circumstances placing the gender issue in the social group category serves only to continue to mask the fact that women's issues may be pre-eminently political issues. To fail to give proper recognition to this political dimension may simply perpetuate the inequalities and injustices experienced by women in the country of origin. Over-use of the social group category in gender cases may ultimately belittle women's rights.

The Authority has signalled an awareness of these issues in Refugee appeal No. 2039/93 Re MN (12 February 1996) and its observations at pp 49-52 are recommended to anyone wishing to test new ground on behalf of female asylum applicants.

[26] For an analysis of gender-based persecution issues, see Rodger PG Haines, "Gender-Based Persecution: New Zealand Jurisprudence" (a paper prepared for the Symposium on Gender-Based Persecution organized by the Office fo the United Nations High Commissioner for Refugees, Geneva, 22 and 23 February 1996. Publication is forthcoming in the International Journal of Refugee Law).

IMPUTED POLITICAL OPINION

[27] From the outset New Zealand refugee jurisprudence has recognised that an asylum-seeker is not required to establish that he or she actually holds a political opinion. It is sufficient that such opinion be imputed by the persecuting agent: Benipal v Ministers of Foreign Affairs and Immigration (High Court, Auckland A993/83, 29 November 1985, Chilwell J) (final judgment). See esp. 225, 230-231.

[28] This having been said, there are situations in which it is difficult to tell from the undisputed facts whether a political opinion is indeed imputed by the persecuting agent.

The problem can become acute where the agent of persecution is non-state. The classic example is where terrorists descend upon an innocent civilian demanding food, shelter or perhaps money. The individuals refuses, is threatened with dire consequences and then comes to New Zealand.

Can it be said in such circumstances that the refusal is seen by the terrorirsts as the expression of a political opinion? It will all depend on the facts and counsel should pay particular attention to the point. The failure to do so could be fatal to the claim. See for example Refugee Appeal No. 2507/95 Re JEAH (22 April 1996) 14.

There is was held that the money had been extorted to fund the terrorists in their attempt to overthrow the state. But the mere existence of a generalized "poiltical" motive underlying the terrorists' forced extraction of money from businessmen is inadequate to establish the proposition that the appellant fears persecution on account of his actual or imputed political opinion. The evidence did not in any way suggest that the terrorists erroneously believed that the appellant's refusal to pay the "taxes" was political based. Thus, the Authority emphasised that the fear of persecution must be for reason of the political opinion. If that "reason" does not exist, the claim must fail as there is no nexus between the persecution feared and the civil or political status of the individual.

EXCLUSION FROM REFUGEE STATUS - ARTICLE 1F

Crimes against humanity

[29] The application of Article 1F(a) was considered by the Authority in Refugee Appeal No. 1248/93 Re TP (31 July 1995). The decision excluded from the Refugee Convention an asylum-seeker who had played a substantial role in the Liberation tigers of Tamil Eelam (LTTE), an organization properly described by the applicant's counsel as "a terrorist organization which cares little who suffers as a result of its actions."

[30] It is not practical to attempt a summary of this decision, particularly given that the issues are of some complexity. It is proposed therefore to merely signal the issues canvassed. They include:

the Authority's jurisdiction to consider exclusion;
the meaning and definition of "crime against humanity";
the meaning of "serious reasons for considering";
whether individuals who have no connection to the state can commit crimes against humanity;
the standard of proof;
the mens rea ingredient;
the degree of complicity required before it can be said that an individual has committed a crime against humanity.

Serious non-political crime

[31] This provision is most often applied to people who have committed serious crimes, often of a terrorist nature, outside New Zealand. The primary question is categorizing the crime as "political" or "non-political". This is a vexed issue as will be seen from a readnig of Gil v Canada (Minister of Employment and Immigration) (1994) 119 DLR (4th) 497 (FC:CA) and T v Secretary of State for the Home Department [1996] AC 742 (HL).

[32] The two principal New Zealand decisions are Refugee Appeal No. 29/91 Re SK (17 February 1992) and Refugee Appeal No. 1222/93 Re KN (5 August 1994).

Both individuals had been involved in terrorist actions leading to death. In the first the appellant was excluded from the Convention, in the second refugee status was granted.

Acts contrary to the purposes and principles of the UN

[33] Following Canadian jurisprudence, the RSAA has applied this Exclusion Clause to persons convicted in New Zealand of drug offences. See for example Refugee Appeal No. 2338/94 Re ARS (30 November 1995), where the appellant was convicted of importing heroin into New Zealand and sentenced to ten years and six months imprisonment.