Refugee Status Appeals Authority  

REFUGEE APPEAL NO. 70951/98

AT AUCKLAND

Before:                            R P G Haines (Chairman)
                                      S Joe (Member)

Immigration Consultant:    P Wilson

Date of Decision:             5 August 1998

______________________________________________________________________

 
DECISION
______________________________________________________________________

INDEX

THE DUTY TO INTERVIEW

The Duty to Interview - The Position Pre-April 1998

The Duty to Interview After The Rules of 30 April 1998

FACTORS AFFECTING THE DISCRETION TO INTERVIEW

ABUSE OF THE REFUGEE APPEAL SYSTEM

INTERNATIONAL STANDARDS FOR ADDRESSING ABUSE

Excom Conclusion No 30

GENERAL CONCLUSIONS

THE APPELLANT'S CASE

THE ISSUES

ASSESSMENT OF THE APPELLANT'S CASE

CONCLUSION

The current refugee determination system in New Zealand was set up in March 1991 with the approval by Cabinet in that month of Terms of Reference. Those terms of reference were later replaced by Terms of Reference published on 1 April 1992. A third and more comprehensive set of Terms of Reference came into force on 30 August 1993. More recently a fourth set of Terms of Reference came into force on 30 April 1998 and are known as the Rules Governing Refugee Status Determination Procedures in New Zealand (the Rules).

Although the governing instrument has at times been amended, the basic features of the New Zealand refugee determination system have remained unchanged since 1991. In particular, all applications for refugee status are considered at first instance by the Refugee Status Branch (formerly the Refugee Status Section) of the New Zealand Immigration Service. If the determination is that the applicant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention, the applicant has a right of appeal to the Refugee Status Appeals Authority whose members are independent of the New Zealand Immigration Service. Decisions of the Authority, while final, are nevertheless subject to the supervisory jurisdiction of the High Court: Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, 29 November 1995, A 993/83, Chilwell J) (final judgment); Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J). But contrast Butler v Attorney-General (CA 181/97, 13 October 1997) at 20-21 (Richardson P, Henry, Keith, Tipping & Williams JJ), and S v Refugee Status Appeals Authority [1998] 2 NZLR 291 at 294 (CA) (Henry, Keith & Blanchard JJ).

The first three Terms of Reference imposed a mandatory duty on both the Refugee Status Branch and on the Authority to interview each appellant (except in second and subsequent applications, as to which see now Para 9(4), Part II of the Rules). There was, however, an important exception which applied only to the Authority. There was no obligation to interview where the claim to refugee status was prima facie manifestly unfounded or frivolous or vexatious, or manifestly well-founded.

This decision is concerned with the impact of the new Rules on the Authority’s jurisdiction and powers concerning manifestly unfounded claims.

THE DUTY TO INTERVIEW

Prior to the Rules of 30 April 1998 the refugee determination procedures at both first instance and on appeal placed great emphasis on the importance of interviewing refugee claimants, and rightly so, given the centrality of the credibility issues raised by refugee claims and further given the potential consequences of a mistaken decline of refugee status. See in particular Re Singh and Minister of Employment and Immigration (1985) 17 DLR (4th) 422 in which Wilson J (with whom Dickson CJC and Lamer J concurred) said at 465:
“I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that when a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate Courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v The Ship “Kathy K” ... I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.”
It was accepted by Wilson J in the next paragraph, however, that the absence of an oral hearing need not be inconsistent with fundamental justice in every case: See p 465.

More recently, in the United Kingdom the issue has arisen whether a special adjudicator can dispense with an oral hearing in determining an application for refugee status: R v Immigration Appeal Tribunal, Ex parte S [1998] INLR 168 (QBD). While the holding in that case (that mere non-compliance with a directions order was not sufficient to justify dispensing with the hearing) turned very much on the language used in the Asylum and Immigration Appeals Act 1993 and related subordinate legislation, Sullivan J referred not only to the decision of the Supreme Court of Canada in Singh, but also to a report to the Lord Chancellor by Professor Genn into “The Effectiveness of Representation at Tribunals”. This report contains rather sobering findings concerning the success rate of appeals which go to a hearing compared with those decided on the papers. The relevant passage from the judgment at 177C is in the following terms:

“In a comprehensive survey of the subject, Professor Genn notes that the success rate between appeals which went to a hearing and those decided on the papers varies dramatically: 30% of the former are allowed in full or in part, as opposed to only 2% of the latter. As to credibility, one special adjudicator is recorded in the report as saying 'Assessing credibility is nine-tenths of the job’.”
Experience in New Zealand corresponds. In particular, this Authority in Refugee Appeal No. 474/92 Re KA (12 May 1994) at 20 observed that:
“It is this Authority’s frequent experience that cases which on a reading of the papers appear to be utterly hopeless turn out, after hearing, to be wholly compelling and that cases which appear strong crumble once an oral hearing permits a credibility determination to be made.”
In Refugee Appeal No. 523/92 Re RS (17 March 1995) at 14 the Authority stated that the emphasis upon an oral hearing at the appellate level is possibly the most important feature of the New Zealand refugee status determination procedure as it recognizes that only the highest standards of fairness will suffice in this unique jurisdiction. The Authority was not in that case called upon to address the exceptions envisaged by the then Terms of Reference Part II para 8(3), namely claims which are prima facie manifestly unfounded or clearly abusive or manifestly well-founded.

There does not appear to be, however, a universal rule of fairness that an oral interview is required in every refugee situation, irrespective of the circumstances. Certainly in Australia, it has been held that procedural fairness does not, in the refugee context, require an oral hearing in each case. See Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 118 ALR 165, 187-188 (French J), a decision which was upheld on appeal in Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83 (FC:FC).

At first instance, while French J rejected the submission that procedural fairness requires an oral hearing in each case, he nevertheless accepted at 188 that there would be circumstances in which fairness may require an oral hearing. An example given is where inconsistencies between information available to the decision-maker and the written submissions of the person concerned cannot otherwise be resolved. But as French J pointed out at 188 to 190 there are practical considerations which must be taken into account in deciding whether an oral hearing must be conducted by the decision-maker. In particular, it may be necessary to engage in a balancing process which takes account of the importance of the private interests affected against the cost to government of providing the safeguard which is sought:

“In this process, it becomes necessary to make some attempt to rank the private interests affected. Value judgments must be made of the importance of the private interest affected by the decision on the one hand and the burden to the administrative process of adopting a particular set of procedures on the other. These are factors generally not capable of quantification and, in any event, qualitatively different.”
In this context French J specifically acknowledged the importance of keeping the refugee determination process free of abuse:
“The determination of an application for refugee status involves decision-making of high importance to the person affected and to Australia’s standing in the community of nations. In assessing the sufficiency of procedures applied in that process against standards of procedural fairness, it is necessary to take into account the private interests involved and the international significance of the decisions taken. In some cases the decisions may literally have life or death consequences for the person affected. On the other hand, there will be cases in which persons seeking to take advantage of the process make claims which are untenable because they do not disclose one or more of the elements necessary to support a claim of refugee status. It may be the case, for example, that the claims made failed to disclose any objective basis for fear of persecution for a Convention reason. Where that is clear and the inquiry process leaves no room for misunderstanding or ambiguity, there is a case for expeditious disposal, so that resources to deal speedily with arguable applications are not diverted for longer than is necessary on those applications which are unarguable. On the other hand, procedural fairness will require that the inquiry process allow for the difficulties of language and communication inherent in the subject matter of such applications, and no doubt in many cases compounded by the uncertainties and stress suffered by individual applicants.”
In upholding this decision on appeal, the Full Court of the Federal Court of Australia in Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83, 89 (FC:FC) held that:
“It is beyond argument that the rules of natural justice do not mandate in all cases an oral hearing for the person affected.”
But the Full Court did, however, recognize at 94 that because the rules of fairness depend upon the circumstances of the case, including the nature of the inquiry, there may be particular cases where an oral interview is mandated. An example given is where a real issue of credibility is involved or it is otherwise apparent that the refugee claimant is disadvantaged by being limited to submissions or responses to the decision-maker in writing:
“For the reasons already given, we think such an analysis leads to the conclusion that the rules of natural justice do not mandate an oral interview by the decision-maker with every applicant for refugee status, although in particular cases, for example where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to submissions or responses to the decision-maker in writing, it may be that observance of the fundamental requirements of natural justice can only be satisfied by a determination made upon an oral hearing.”
The subsequent decision in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 (FC:FC) illustrates these principles in that on the particular facts (an incomplete transcript of the first instance hearing coupled with a mis- translation of a vital answer) it was held that an oral hearing should have been conducted.

In conclusion, it would seem that at the end of the day, the issue whether an applicant for refugee status must be accorded an oral interview will turn on two primary issues:

(a)    The language employed by the legislation or other instrument conferring jurisdiction on the decision-maker; and

(b)    The demands of fairness in the particular circumstances of the individual case.

We turn therefore to consider the Terms of Reference. This discussion, in turn, will need to address not only the position as it stood prior to 30 April 1998 when the new Rules were introduced, but also the impact of the new Rules.

The Duty to Interview - The Position Pre-April 1998

Prior to the Rules of 30 April 1998, the refugee determination procedures at both first instance and on appeal placed great emphasis on the importance of according an interview to refugee claimants. In particular, the Refugee Status Branch was required in all cases (other than those in which a second or subsequent claim to refugee status was made) to give the claimant the opportunity of attending an interview. The duty was mandatory and extended even to those cases where the claim was manifestly unfounded or clearly abusive. A right of appeal to the Refugee Status Appeals Authority lay in all cases, including those determined to be manifestly unfounded or clearly abusive. On appeal, the obligation on the Authority was not in all respects the same as that on the Refugee Status Branch. That is, while the Authority was generally under a duty to give the appellant an opportunity to attend an interview, that obligation did not extend to a claim to refugee status which was prima facie manifestly unfounded, or clearly abusive or manifestly well-founded. The relevant provisions governing the Authority’s jurisdiction on appeal varied slightly over time as the following extracts show.

Terms of Reference (March 1991), para 7:

“In determining claims to refugee status, the Authority shall consider each written decision of officers of the Refugee Status Section that is subject to appeal and any material submitted in writing by the claimant in support of the appeal and by the Refugee Status Section in support of its decision. The Authority shall interview the claimant and consider any evidence presented by the claimant unless the claim is prima facie manifestly unfounded or frivolous or vexatious, or manifestly well-founded....” [emphasis added].
Terms of Reference (1 April 1992), para 8:
“In determining claims to refugee status, the Authority shall consider each written decision of officers of the Refugee Status Section that is subject to appeal and any material submitted in writing by the claimant in support of the appeal and by the Refugee Status Section in support of its decision. The Authority shall interview the claimant and consider any evidence presented by the claimant unless the claim is prima facie manifestly unfounded or frivolous or vexatious, or manifestly well-founded....” [emphasis added].
Terms of Reference (30 August 1993) Part II, para 8(3):
“Subject to paragraphs 5(2) and 8(4) of these Terms of Reference, the Authority shall given the appellant an opportunity to attend an interview and shall consider any evidence presented by the appellant, unless the claim to refugee status is prima facie “manifestly unfounded” or “clearly abusive” or manifestly well-founded.” [emphasis added].
For present purposes paras 5(2) and 8(4) referred to in the last extract do not require examination or discussion as they did not directly address the issue of manifestly unfounded claims.

The significance of the requirement that the Authority afford an appellant an opportunity to attend an interview and to consider any evidence presented by the appellant was examined by the Authority in Refugee Appeal No. 523/92 Re RS (17 March 1995) at 10-15. The conclusion reached was that appeals to the Authority are to proceed as a de novo consideration and that the decision must be made on the facts as they stand as at the date of the determination of the appeal. As to the latter point, subsequent Australian authority has confirmed the Authority’s interpretation of Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) and Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455 (Wilcox J). See Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223, 254-255 (FC:FC) and Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191, 193-196 (FC:FC).

Against this background the impact of the Rules of 30 April 1998 can be seen more clearly.

The Duty to Interview After The Rules of 30 April 1998

The Rules of 30 April 1998 have made a significant change to the requirement that refugee claimants be interviewed. The Refugee Status Branch is no longer under a duty to interview all claimants. Whether a claimant is given an opportunity to attend an interview is now a matter of discretion on the part of the Refugee Status Branch. Para 7(1), Part I of the Rules provides:

“In making a determination under paragraph 2(1), (2), or (3) above, the RSB may, at the RSB’s discretion give the claimant the opportunity of attending an interview (the nature and extent of the interview being determined by the nature and extent of the matter under consideration) and shall consider all the papers.”
Likewise on appeal, whether an appellant is given an opportunity to attend an interview is now a matter of discretion on the part of the Refugee Status Appeals Authority except in those cases where the appellant was not interviewed by the Refugee Status Branch. Para 9(3), Part II of the Rules provides:
“Subject to paragraph 5(2) of this Part of these Rules, the Authority may, at the Authority’s discretion, give the appellant an opportunity to attend an interview and shall consider any evidence presented by the appellant provided that the Authority shall offer such an interview to any appellant who was not interviewed by the RSB under Part I of these Rules in the making of the decision which is the subject of the appeal.”
In the result, a refugee claimant who is not interviewed by the Refugee Status Branch must, on appeal, be interviewed by the Authority. Only in those cases where there has been an interview at first instance is there a discretion on appeal not to interview. The clear intent is that a refugee claimant will be interviewed at least once in the course of progressing through the refugee determination system. There is also a limited exception in the case of second and subsequent applications: Para 9(4), Part II of the Rules.

However, an interview must not be confused with a hearing in the administrative law sense (and in this regard it must be observed that the Rules do not use the two terms consistently). The new Rules impose a mandatory obligation on both the Refugee Status Branch and on the Refugee Status Appeals Authority to accord to the refugee claimant a hearing at both first instance and on appeal. In particular the Refugee Status Branch is under a mandatory duty to consider all the papers put forward by the claimant (paras 6(3) and 7(1), Part I of the Rules) and is required to give reasons in writing for the determination made (para 9(1), Part I). The Refugee Status Appeals Authority is, in turn, under a mandatory duty to consider any material or evidence presented in writing by the appellant (para 9(2), Part II of the Rules) and there are disclosure obligations (paras 9(6) & (10)). Written reasons for the Authority’s decision must also be given (para 20, Part II of the Rules). These procedures will be supplemented by the common law rules of fairness as the case requires. Often the key element will be surprise and potential prejudice: Khalon v Attorney-General [1996] 1 NZLR 458, 466 (Fisher J). But in most cases the practical result will be that when a claimant is interviewed, the mandated hearing will be contemporaneous with the interview.

The question raised by the present appeal is whether this particular appellant is to be afforded an opportunity to attend an interview. This in turn raises fundamental questions as to how the Authority’s discretion to interview is to be exercised.

FACTORS AFFECTING THE DISCRETION TO INTERVIEW

The amendments introduced to the procedures of the Refugee Status Branch and of the Refugee Status Appeals Authority are silent as to the grounds on which the discretion to interview are to be exercised. It would therefore be inappropriate for the Authority to fetter its general discretion by cataloguing the grounds on which its own discretion will be exercised. Some general observations can, however, be made.

First, while the discretion has been conferred in very general terms, it must be exercised in accordance with law, fairly and reasonably: New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544, 552 per Cooke P (CA). In particular the discretion must be exercised in a manner which conforms with the subject matter, scope and purpose of the Refugee Convention and of the Rules themselves. In this regard an analogy can be drawn with Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030 (HL), but as pointed out by McHugh J (Brennan CJ agreeing on this point), the interpretation principles applicable to treaties are not the same as those applying to domestic statutes: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, 332-333, 349-352 (HCA).

Weight will also have to be given to the nature of a decision on refugee status, involving as it does the determination of matters potentially relating to persecution, and perhaps of life or death. The decision of the Authority is final in the sense that it cannot be reconsidered once conveyed to the appellant (para 17, Part II of the Rules), though second refugee applications are possible in certain circumstances (para 2(15), Part I of the Rules and para 5(1)(f) & (g), Part II), as is judicial review: Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, 29 November 1995, A 993/83, Chilwell J) (final judgment); Singh v Refugee Status Appeals Authority [1994] NZAR 193 (Smellie J). But contrast Butler v Attorney-General (CA 181/97, 13 October 1997) at 20-21 (Richardson P, Henry, Keith, Tipping & Williams JJ), and S v Refugee Status Appeals Authority [1998] 2 NZLR 291 at 294 (CA) (Henry, Keith & Blanchard JJ).

Ordinarily, it may be expected that an interview will be offered at both the Refugee Status Branch and the Refugee Status Appeals Authority levels. The reasons include:

1.    The determination of an application for refugee status involves decision-making of high importance to the person affected and to New Zealand’s obligations under the Refugee Convention: Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 118 ALR 165, 190 (French J); Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83, 91 (FC:FC).

2.    Decisions on refugee status may literally have life or death consequences for the person affected: Zhang De Yong and Chen Zhen Zi.

3.    Issues of credibility lie at the heart of most determinations of refugee status, as has been recognized in numerous decisions of the Authority and in Khalon v Attorney- General [1996] 1 NZLR 458, 467 (Fisher J).

4.    It is well established that in refugee cases only the highest standards of fairness will suffice since questions of life, personal safety and liberty are at stake: Khalon v Attorney-General [1996] 1 NZLR 458, 463 (Fisher J) where the relevant New Zealand and United Kingdom case law is collected.

5.    From its inception in 1991, the New Zealand refugee determination process has been guided by the principle of confidence. That is, the adoption of procedures of sufficient standard to allow New Zealand to be confident that the system as a whole leads to accurate decisions. This is, in part, a corollary of New Zealand’s international obligation to discharge its responsibilities under the Refugee Convention in good faith: Vienna Convention on the Law of Treaties 1969, Art 26. In this regard, the Authority’s invariable experience since 1991 has been that a full interview at first instance is of invaluable assistance in the elucidation of the evidence and facts on which a claim to refugee status is based. As a result, the appeal hearing becomes more focused, meaningful and relevant, permitting the exploration of the issues in a much more purposeful way. In short, the appeal hearing is built upon the first instance hearing, leading to a more accurate determination of the facts. It can be said without any degree of exaggeration that the sum of the parts is greater than the whole. See further Professor D J Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (1996) 396-398.

However, these factors, compelling though they may be, do not singly or taken cumulatively create a barrier to the refugee determination system protecting itself from abuse. As French J recognized in Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1993) 118 ALR 165 and approved in Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83 (FC:FC), there will be cases in which persons seeking to take advantage of the process make claims which are untenable because they do not disclose one or more of the elements necessary to support a claim to refugee status. Where that is clear and the inquiry process leaves no room for misunderstanding or ambiguity, there is a case for expeditious disposal, so that resources necessary to deal speedily with arguable applications are not diverted for longer than is necessary on those applications which are unarguable.

It would appear to us that if there is a safe and satisfactory system for identifying cases which are unarguable, there is no cause for such cases to be processed in the same manner as the more arguable cases which justifiably need to be processed with great care.

The point is made by Professor Galligan in Due Process and Fair Procedures: A Study of Administrative Procedures (1996) 397 in the following terms:

“This leads on to the second principle, the principle of confidence. According to this principle, procedures should be adopted in each context which are sufficient for us to be confident that they will lead to accurate decisions. The application of the confidence principle usually means that, considering the imperfection of procedures in individualized processes, we should act with caution, even over-determination, in minimizing the risk of error, especially where important rights are at stake. A practical judgment has to be made as to whether a set of procedures, taken as a whole, satisfies the principle of confidence. The result in some cases might be that the primary procedures are so exacting and the risk of error so small, that no resource or only the barest minimum is warranted. The more likely conclusion, however, particularly when account is taken of empirical research into the reliability of primary decisions, is that some form of recourse allowing a reasonable opportunity for mistakes to be corrected is a necessary element of any administrative process. What constitutes a reasonable opportunity will depend on the usual factors, such as the nature of the process, the risks of error, and the rights and interests affected. Our knowledge of the high risks of error in many areas of administration would suggest the practical conclusion that, provided a threshold of seriousness is met, there ought to be a presumption in favour of some form of recourse on the merits, rebuttable only where it can be shown that the risks of error are adequately countered at the primary level.”
In short, there is a balancing process. As to this PP Craig in Administrative Law (3rd ed 1994) at 296 observes:
“In deciding upon the application of natural justice or fairness the court will, as noted above, balance between, on the one hand, the nature of the individual’s interest, and on the other, the likely benefit to be gained from an increase in procedural rights and the costs to the administration of having to comply with such process rights.”
Importantly, he points out at op cit 298 that the existence of judicial balancing should not lead to a conclusion that all such balancing is necessarily premised on the same assumptions. That is, premises which underpin an essentially law and economics approach to natural justice or fairness may be far removed from those which underlie a more rights-based approach to process considerations. There is also force in his observation at op cit 299 that:
“To denominate certain interests as rights for the purposes of procedural protection, and to take no account of other factors in determining the nature of this protection, is implausible given that the costs of such protection have to be borne by society. As Mashaw states,
'... we cannot sustain a vision of the world in which rights ring out true and clear, unencumbered by the consideration of conflicting claims of others to scarce resources. It is the fundamentally compromised nature of social life that interest balancing recognizes and confronts.’
This same point has been recognized by Dworkin, who notes that in both the criminal and civil process the individual is provided with less than the optimum guarantee of accuracy, and that 'the savings so achieved are justified by considerations of the general public welfare.’”
In our view, it is not possible to contend that every refugee claim, no matter how meritless, must inevitably result in a full personal interview at both first instance and on appeal.

Under the Terms of Reference as they existed prior to 30 April 1998, the Authority was given explicit guidance as to the situations in which an oral interview could be withheld. But the Authority’s discretion in the post-30 April 1998 regime is entirely at large. In carrying out the balancing exercise, it is relevant for us to consider:

(a)    The nature and degree to which the present appeal system is being abused;

(b)    Whether there are any relevant international standards or procedures for addressing the abuse of asylum procedures.

ABUSE OF THE REFUGEE APPEAL SYSTEM

By international standards, the New Zealand refugee status determination system is humane and fair, involving as it does a right of appeal on issues of both fact and law. In addition, refugee claimants are in general given a work permit pending determination of their claim. See RPG Haines, The Legal Condition of Refugees in New Zealand (1995) 19-20 for the historical position while current policy is to be found in the New Zealand Immigration Service Operational Manual, Chapter 4, Pol 4-16. Even if a temporary permit of some kind is not issued, removal orders are not executed until refugee status has been finally determined: New Zealand Immigration Service Operational Manual Chapter 4, Pol 4-16. This is the inevitable corollary of the non-refoulement obligation contained in Article 33 of the Refugee Convention.

While these provisions have necessarily been designed with the genuine refugee claimant in mind, it was inevitable that persons with no credible claim to refugee status would take advantage of the system by lodging applications with a view to circumventing normal immigration policy relating to residence, visitor, work and student permits or with a view to impeding the removal procedures.

Over the past 10 years the number of claims to refugee status has fluctuated. Overall, the picture is one of a gradual increase. Table 1 refers:

Table 1

REFUGEE APPLICATIONS IN NEW ZEALAND


YEAR APPLICATIONS RECEIVED
1987 27
1988 145
1989 330
1990 600
1991 1,200
1992 771
1993 347
1994 423
1995 683
1996 1,287
1997 1,580
1998 

(1 Jan to 30 June)

 840
In introducing the subject of abuse, it would be helpful to provide some background.

In approximately 1987 a visa officer in the New Zealand High Commission, New Delhi issued a very large number of visitor visas to mainly young men from the Punjab, predominantly of the Sikh religion. After arriving in New Zealand and after overstaying their visitor permits for some time, a substantial number of this group claimed refugee status. Most of the claims were based on a fear of terrorist or extremist groups then engaged in a bitter conflict with the authorities in the Punjab. A much smaller number sought refugee status on the grounds of a fear of persecution at the hands of the security forces themselves. Those cases based on fear of persecution at the hands of the state enjoyed a considerable measure of success, while those claims based on a fear of non- state agents generally foundered on the relocation principle. Contrast, for example, Refugee Appeal No. 18/92 Re JS (5 August 1992) at 10-18 (a non-state agent case) and Refugee Appeal No. 135/92 Re RS (18 June 1993) at 24-49 (a state agent case which contains an extensive discussion of the relevance of torture in the relocation context).

Soon, however, many of the Punjabi claimants who had failed with their non-state agent cases filed second refugee applications, claiming that their fear of persecution now related not to the terrorists, but to the security forces.

The first “second appeal” by a claimant from the Punjab was heard by the Authority on 30 September 1994 and determined on 28 October 1994. See Refugee Appeal No. 2245/94 Re SS (28 October 1994). The appeal was successful. However, once the pattern of abuse was detected, it became rare for second appeals to succeed. Most failed on credibility grounds.

Regrettably, the abuse continues down to the present time and on a considerable scale. For example, in the period from 1 April 1995 to 31 March 1996 some 63% of all new appeals were second or third appeals: Refugee Appeal No. 70002/96 Re BS (7 May 1996) at 8 and see also Refugee Appeal No. 70387/97 Re MSI (14 May 1997) at 5. Of all second Punjabi appeals heard and decided by the Authority from October 1994 to 30 April 1998, and there are approximately 300 of such cases, only eight have succeeded. In percentage terms, the success rate has been 2.67%. There have been in the same period 21 third appeals (all unsuccessful) and even a fourth appeal (unsuccessful).

Abuse of the appeal system is not the sole prerogative of Indian nationals. Second or third appeals have been received from:

Iranians (37, of which one was successful)

People’s Republic of China (14, of which none were successful)

Pakistan (4, of which none were successful)

Peru (3, of which none were successful)

South Africa (2, of which none were successful)

Bulgaria (2, of which none were successful)

Russia (2, of which none were successful)

Nigeria (1, which was unsuccessful)

It is significant that most of the refugee claimants who have lodged second (or subsequent) claims have been represented by immigration consultants. A particularly egregious example of the resubmission of a claim is Refugee Appeal No. 70476/97 Re SS (15 April 1997). Unfortunately, members of the legal profession do not have an entirely unblemished record: Refugee Appeal No. 70002/96 Re BS (7 May 1996) at 8- 11.

Forms of abuse in the sur place situation have also been encountered and addressed by this Authority. See Refugee Appeal No. 2254/94 Re HB (21 September 1994) and Refugee Appeal No. 70100/96 (28 November 1997). The Authority’s approach in these cases has been based on a value judgment that the protection system afforded by the Refugee Convention is to be shielded from manipulation and abuse.

More recently the refugee determination system has been “utilised” by Indians from Fiji. In the period 1 January 1991 to 31 May 1998 the Authority has determined 99 appeals from such persons. Of this number, 72.72% of the appeals were decided in the past two calendar years. Almost half (41.41%) of the 99 decisions have been delivered in the first five months of 1998 alone. It is ironic that as the political power of Indians has increased in Fiji, so have the baseless refugee applications. The Authority’s approach to Fiji claims is generally set out in the principal cases of Refugee Appeal No. 308/92 Re UR (28 March 1994), Refugee Appeal No. 70670/97 (19 December 1997) and Refugee Appeal No. 70695/97 (30 April 1998).

As mentioned, prior to 30 April 1998 the Authority had express power to dispense with oral hearings in manifestly unfounded cases. Statistics show that this power has been exercised with increasing frequency to deal with the rising level of abuse.

In the period July 1996 to June 1997 some 32 cases were determined to be prima facie manifestly unfounded. All were dismissed after a hearing on the papers. The percentage of manifestly unfounded appeals to total appeals was 8.2%.

However, in the period July 1997 to June 1998 the number rose to 120. Again all were dismissed after a hearing on the papers. The percentage of manifestly unfounded appeals so dismissed to the total number of appeals decided was 27.40%. Table 2 demonstrates the recent surge in manifestly unfounded cases.

Table 2

MANIFESTLY UNFOUNDED DECISIONS

1997-1998 FINANCIAL YEAR


Appeals decided Appeals dismissed MUC decisions % of MUC decisions to total appeals  %of MUC decisions to total appeals dismissed 
July 49 47 5 10.20% 10.64%
August 34 29 8 23.53% 27.59%
September 34 32 6 17.65% 18.75%
October 49 47 9 18.36% 19.15%
November 26 23 3 11.54% 13.04%
December 26 24 4 15.38% 16.66%
January 18 15 3 16.66% 20.00%
February 29 25 11 37.93% 44.00%
March  45 42 14 31.11% 33.33%
April 24 22 6 25.00% 27.27%
May 56 54 28 50.00% 51.85%
June 48 47 23 47.92% 48.94%
Total 438 407 120 27.40% 29.48%
 

In the result, the percentage of appeals allowed by the Authority has dropped from a historic high of 49% in the financial year 94/95 to 26.8% in the financial year 95/96, and from 10.34% in the financial year 96/97 to 7.57% in 97/98.

In these circumstances it is clear that considerable resources are being diverted by the Authority to deal with manifestly unfounded cases. The principal victim of this abuse is the genuine refugee claimant. However, the refugee determination system itself is also a victim and there are sound policy reasons justifying measures addressing the problem. Those policy reasons were cogently expressed by the Report of the Sub-Committee of the Whole on International Protection, “Follow-up on Earlier Conclusions of the Sub- Committee on the Determination of Refugee Status with Regard to the Problem of Manifestly Unfounded or Abusive Applications” (26 August 1983) (EC/SCP/29):

“The problem of the proliferation of unfounded asylum claims
3    The proliferation of asylum applications in a number of industrialized States parties to the 1951 United Nations Refugee Convention and the 1967 Protocol has evidently led to an increase in unfounded asylum claims, a phenomenon which has given rise to serious concern on the part of the States affected. These concerns have resulted in particular from the fact that the number of unfounded claims has become disproportionately high and that a significant percentage of such claims are to be considered as manifestly unfounded or abusive.
4    In several of these countries it is reported that a growing number of applications for refugee status are being submitted by economic migrants as a means of circumventing normal immigration regulations. One of the reasons for this phenomenon would appear to be adverse world-wide economic trends, which have prompted increased emigration from less developed countries. At the same time widespread unemployment in developed countries has led them to impose more severe limitations on legal immigration, limitations which contrast sharply with the generous asylum policies which the countries concerned continue to follow for recognized refugees. Many would-be immigrants to those countries have consequently resorted to spurious claims to refugee status in order to secure admission or avoid deportation. Even if their applications are eventually denied, filing such applications secures for applicants the opportunity to remain in the country at least for the duration of the determination procedure. This opportunity is obviously more attractive where applicants for refugee status have the right to work and access to social benefits. A number of national authorities have noted that long delays in the determination procedure may also serve as an added incentive for the filing of spurious applications.
5    The proliferation of spurious applications has imposed heavy burdens upon the countries affected, in terms of both the administrative cost of processing applications and the social expenditures incurred on behalf of all asylum-seekers while their applications are pending. Such applications have also been detrimental to the interests of applicants with valid claims to refugee status. Such claims have contributed in certain countries to delays in the recognition of refugee status and thus in the enjoyment by refugees of the rights to which they are entitled under the Convention and the Protocol. At the same time, growing public awareness of the fact that a large proportion of applicants for refugee status are in the end determined not to be refugees has contributed to a decline in popular sympathy for asylum-seekers in general, and to scepticism about the validity of the claims even of recognized refugees. References to "false refugees" have become commonplace in certain countries, and political pressure has grown for more restrictive policies with regard to all applicants for asylum.”
It was this Report which led to Excom Conclusion No 30, to which reference will shortly be made.

Under the pre-30 April 1998 regime the Terms of Reference prescribed an accelerated procedure for dealing with manifestly unfounded cases in that the appeal could be dealt with on the papers. The Authority sees no reason why the general discretion now conferred by the new Rules should not be exercised on similar grounds. But it is necessary to first address the issue whether there are any relevant international standards or procedures for addressing the abuse of asylum procedures.

INTERNATIONAL STANDARDS FOR ADDRESSING ABUSE

The abuse of asylum procedures is not a new phenomenon and is experienced by most, if not all of the State Parties to the Refugee Convention. It is the subject of Excom Conclusion No 30: The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum (1983). The Executive Committee of the High Commissioner’s Programme was established by the General Assembly of the United Nations in 1957. It was to be composed of States to be elected by the Economic and Social Council of the United Nations “on the widest possible geographical basis from those states with a demonstrated interest in a devotion to the solution of the refugee problem”. The terms of reference of the Executive Committee can be summarized as:

(a)    To advise the High Commissioner in the exercise of his functions under the Statute of his Office - meaning essentially his work in the field of international protection; and

(b)    To approve the High Commissioner’s assistance programmes and to set the financial target needed to implement them.

See generally Anders Johnsson, “Note on the Origin and Competence of the Executive Committee” in UNHCR, Excom in Abstracts: A Bibliographic Description of Documentation Issued in the Context of UNHCR’s Governing Bodies and Major International Refugee Conferences 1951-1990 (October 1990) 6-12 and Michel Moussalli, “The Evolving Functions of the Office of the High Commissioner for Refugees” in Gowlland & Samson (eds) Problems and Prospects of Refugee Law: Papers Presented at the Colloquium Organized by the Graduate Institute of International Studies in Collaboration with the Office of the United Nations High Commissioner for Refugees, Geneva, 23 and 24 May, 1991 (1992) 81, 90.

It is on this basis that a Sub-Committee of the Whole on International Protection was established in 1975 “to study in more detail some of the more technical aspects of the protection of refugees” and “to focus attention on protection issues with a view to determining existing short-comings in this field and to proposing appropriate remedies”: Excom Conclusion No 1: Establishment of the Sub-Committee and General (1975) and Excom Conclusion No 2: Functioning of the Sub-Committee and General (1976).

In 1983 the Executive Committee, upon the recommendation of the Sub-Committee of the Whole on International Protection of Refugees adopted Excom Conclusion No 30: The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum and it is good evidence of the views of State Parties to the Refugee Convention and of their understanding both of the law and of the content of applicable minimum standards. It is clear, however, that the Conclusions of the Executive Committee are not binding upon the Authority: Refugee Appeal No. 1/92 Re SA (30 April 1992) 32-33 and see also R v Secretary of State for the Home Department, Ex parte Mehari [1994] QB 474, 488F-489C (Laws J). The Conclusions may nevertheless be of considerable persuasive authority (Refugee Appeal No. 1/92 Re SA (30 April 1992) at 33) or as expressed by Macdonald & Blake in Immigration Law and Practice in the United Kingdom (4th ed 1995) para 12.12:

“In short, the UNHCR materials are aids to interpretation of the Convention and may be relevant to the exercise of a broad discretion, but are not themselves the source of obligations and duties”.

Excom Conclusion No 30

Excom Conclusion No 30 defines manifestly unfounded or abusive applications to be those which:
“are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying the grant of asylum.”
The Conclusion considers that national procedures for the determination of refugee status may include special provision for dealing in an expeditious manner with such applications. However, the Executive Committee nevertheless expressly recognized that a decision in such cases does have a substantive character and for this reason procedural guarantees are required. In all such cases the applicant should receive a complete personal interview by an official of the authority competent to determine refugee status and an unsuccessful applicant should be able to have a negative decision reviewed before rejection at the frontier or removal. The full text of the Conclusion follows:

“No. 30 (XXXIV) - 1983

THE PROBLEM OF MANIFESTLY UNFOUNDED OR ABUSIVE APPLICATIONS FOR REFUGEE STATUS OR ASYLUM
The Executive Committee,
(a)    Recalled Conclusion No. 8 (XXVIII) adopted at its twenty-eighth session on the Determination of Refugee Status and Conclusion No. 15 (XXX) adopted at its thirtieth session concerning Refugees without an Asylum Country;
(b)    Recalled Conclusion No. 28 (XXXIII) adopted at its thirty-third session in which the need for measures to meet the problem of manifestly unfounded or abusive applications for refugee status was recognized;
(c)    Noted that applications for refugee status by persons who clearly have no valid claim to be considered refugees under the relevant criteria constitute a serious problem in a number of States parties to the 1951 Convention and the 1967 Protocol. Such applications are burdensome to the affected countries and detrimental to the interests of those applicants who have good grounds for requesting recognition as refugees;
(d)    Considered that national procedures for the determination of refugee status may usefully include special provision for dealing in an expeditious manner with applications which are considered to be so obviously without foundation as not to merit full examination at every level of the procedure. Such applications have been termed either "clearly abusive" or "manifestly unfounded" and are to be defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying the granting of asylum;
(e)    Recognized the substantive character of a decision that an application for refugee status is manifestly unfounded or abusive, the grave consequences of an erroneous determination for the applicant and the resulting need for such a decision to be accompanied by appropriate procedural guarantees and therefore recommended that:
(i)    as in the case of all requests for the determination of refugee status or the grant of asylum, the applicant should be given a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status;
(ii)    the manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status;
(iii)    an unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory. Where arrangements for such a review do not exist, governments should give favourable consideration to their establishment. This review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.
(f)    Recognized that while measures to deal with manifestly unfounded or abusive applications may not resolve the wider problem of large numbers of applications for refugee status, both problems can be mitigated by overall arrangements for speeding up refugee status determination procedures, for example by:
(i)    allocating sufficient personnel and resources to refugee status determination bodies so as to enable them to accomplish their task expeditiously, and
(ii)    the introduction of measures that would reduce the time required for the completion of the appeals process.”
There is no denying that caution must be exercised in designing an expedited refugee determination system around the manifestly unfounded case concept. See in particular Refugee Appeal No. 1/92 Re SA (30 April 1992) at 12-19. W Gunther Plaut, in Refugee Determination in Canada (1985), a report commissioned by the Canadian Minister of Employment and Immigration, pointed out at 95 that the mechanism can be abused by State Parties:
“Often the application of the MUC concept has threatened to deny persons who are genuine refugees access to determination systems”.
Some would argue that this is in fact what has occurred in Europe. In most countries the expedited process has become elaborate and in 1992 the EU ministers responsible for immigration agreed on a resolution specifically addressing manifestly unfounded applications for aslyum. See Resolution on Manifestly Unfounded Applications for Asylum adopted by the Ministers of the Member States of the European Communities responsible for Immigration, meeting in London on 30 November and 1 December 1992 (the 1992 London Resolution), the text of which is reproduced in Plender (ed), Basic Documents on International Migration Law (2nd rev ed 1997) at 474. The Resolution is to be read subject to the modifications later made in the Council Resolution of 20 June 1995 on Minimum Guarantees for Asylum Procedures, the text of which is reproduced in Plender op cit at 513, 516. In essence, the 1992 London Resolution substantially broadens the definition of a manifestly unfounded claim which it defines as an application which “clearly raises no substantive issue” under the Refugee Convention for one of the following reasons:

(a)    There is clearly no substance to the applicant’s claim to fear of persecution in his own country.

This is further defined as meaning:

(b)    The claim is based on deliberate deception or is an abuse of asylum procedures.

This is further defined as meaning:

A critique of these provisions is to be found in R Fernhout & H Meijers, “Asylum”, H Meijers et al (eds) A New Immigration Law for Europe? The 1992 London and 1993 Copenhagen Rules on Immigration (1993) 8, 12-15. Messrs Fernhout & Meijers point out (inter alia) that:

(a)    The 1992 London Resolution opens the possibility of dealing with manifestly unfounded applications in an admissibility procedure under which applications may be rejected very quickly on objective grounds. The judgment on those grounds is passed on the basis of only the external characteristics of the application, from which the fact that the application is manifestly unfounded can be deduced (eg due to false documents). There is no judgment on the merits at all.

(b)    If such applications are in fact determined in an admissibility procedure, a right to appeal is not expressly provided so that an opportunity to judge the merits of the application is missing. This is contrary to the obligations in Article 33 of the Refugee Convention.

(c)    The definition of “manifestly unfounded” is much broader than that found in any other relevant instrument. In particular the London Resolution introduces very subjective elements to what should be an objective principle, eg the grounds of the application, the presence of circumstantial or personal details. In addition, inconsistent, contradictory or fundamentally improbable data can also provide an independent ground to apply the accelerated procedure. They point out that if an admissibility decision is to be made on the basis of contradictions and inconsistent elements, then there is a great chance that there will be no more opportunity for further examination or the elucidation of discrepancies.

(d)    They also point out that the relocation/IFA component to the definition of manifestly unfounded is an inconsistency within the text. That is, relocation only arises if a well-founded fear of persecution is found to exist in at least one part of the country of origin. Therefore, it cannot be said, without more, that the application is manifestly unfounded.

(e)    The specification of the circumstances in which there could be “deliberate deceit or abuse of asylum procedures” is also very all-round and approximate as the London Resolution accepts that these factors “cannot in themselves outweigh a well-founded fear of persecution”. They suggest that the question whether a claim is manifestly unfounded should be resolved by reference to the criteria for granting refugee status, not on the question whether the applicant has had ample opportunity to submit an asylum application earlier, or has flagrantly failed to comply with substantive obligations imposed by national rules relating to asylum procedures, or has previously applied for refugee status in another country. After all, the interpretation of the definition of refugee differs too much from state to state.

Professor Guy S Goodwin-Gill in The Refugee in International Law (2nd ed 1996) 344- 348 describes the 1992 London Resolution as “ill-drafted” and criticizes the manifestly unfounded formulation for trespassing on the realm of substantive determination. He adds at 346:

“It is also open to further misapplication, so far as States may be inspired to read back into its terms their preferred or legislated interpretations of the refugee definition, for example, that there can be no (Convention-based) fear of persecution in situations of civil conflict; or that an 'internal flight alternative' exists; or that certain policies or practices should be discounted in the evaluation of claims.”
These concerns are shared by the UNHCR. See the publication by the Office of the UNHCR, Fair and Expeditious Asylum Procedures (November 1994). While acknowledging that states may have recourse to accelerated procedures, it emphasizes the need for procedural safeguards:
“States may have recourse to accelerated procedures, provided that the nature of the applications for asylum which are to be examined in such procedures is well defined and that the procedures are accompanied by appropriate safeguards.
UNHCR fully concurs with States in their effort to process manifestly unfounded claims for asylum in accelerated procedures in line with ExCom Conclusion 30. Where States decide to broaden the definition of a manifestly unfounded claim, i.e. through concepts as laid down in the 1992 London Resolution of the EU Member States, the Office believes that such wider criteria cannot in themselves outweigh a well-founded fear of persecution under Article 1 of the 1951 Convention.
The more accelerated a procedure is, the higher the risk that an erroneous decision will be taken. The Office considers, therefore, that any accelerated procedure must be accompanied by the appropriate safeguards, including, inter alia, a review or appeal possibility, or its equivalent, with suspensive effect before a negative decision is implemented. The safeguards should not be made subject to exceptions. UNHCR agrees that such safeguards should not adversely effect the expeditious character of the accelerated procedure.”
The specific UNHCR challenge to the position taken by the EU immigration ministers in the London Resolution of 30 November and 1 December 1992 is to be found in UNHCR, An Overview of Protection Issues in Western Europe: Legislative Trends and Positions Taken by UNHCR (1995) 1-12. For present purposes, the following passages at 8-12 are relevant:

“UNHCR POSITION

UNHCR has long taken the position that national procedures for determination of refugee status may usefully provide for dealing in an accelerated procedure with manifestly unfounded applications for refugee status or asylum. These procedures should, however, include certain procedural safeguards regardless of whether the claim is presented at the border or within the territory. These guarantees should also be applied to pre-admission/screening procedures at the border. Furthermore, these guarantees should be respected in procedures dealing with first country of asylum cases.
1. Definition of Manifestly Unfounded or Abusive Applications

i) Clearly Fraudulent Applications

The Office has stated that the notion of "clearly fraudulent" could reasonably cover situations where the applicant deliberately attempts to deceive the authorities determining refugee status. The mere fact of having made false statements to the authorities does not, however, necessarily exclude a well-founded fear of persecution and vitiate the need for asylum, thus making the claim "clearly fraudulent". Only if the applicant makes what appear to be false allegations of a material or substantive nature relevant for the determination of his or her status could the claim be considered "clearly fraudulent".
As to the use of forged or counterfeit documents, it is not the use of such documents which raises the presumption of an abusive application, but the applicant's insistence that the documents are genuine. It should be borne in mind in this regard that asylum-seekers who have been compelled to use forged travel documents will often insist on their genuineness until the time they are admitted into the country and their application examined.
Applications suspected of being filed to forestall an expulsion order should only be considered as manifestly unfounded if the applicant has had ample opportunity to apply for asylum previously and has not given a valid explanation for the delay.
Where applicants have already had their claim for asylum rejected in another country upon examination of the substance of their claim, UNHCR agrees that such applications could appropriately be considered in the procedure for manifestly unfounded applications. However, this should only be the case where the examination on the substance is in conformity with UNHCR eligibility standards and the procedures comprise adequate procedural guarantees. In such cases, rejection in a previous procedure raises a rebuttable presumption that there is no substance to the claim.
ii) Applications not related to the granting of refugee status
The Office has on a number of occasions stressed that a claim should not be rejected as manifestly unfounded even if it does not fall under the 1951 Convention definition, if it is also evident that the applicant is in need of protection for other reasons and thus may qualify for the granting of asylum.
When an assessment of credibility is necessary to establish the subjective element of the applicant's claim the situation is different. Issues of credibility are so complex that they may be more appropriately dealt with under the normal procedure.
2. Other Cases to be channelled into Accelerated Procedures
i) Safe country of Origin and Country of First Asylum Cases
UNHCR concurs with the channelling of these claims into accelerated procedures provided the procedural safeguards set out in Point 3 below are met.
ii) Crimes and Threat to National Security
UNHCR has taken the view that the application of Article 1 F of the 1951 Convention requires a very careful examination of the application for refugee status and of the grounds for exclusion from international protection.
Moreover, it has been broadly accepted that exclusion clauses are subject to restrictive interpretation. As a matter of treaty interpretation, exceptions to the rule are to be given a restrictive interpretation. UNHCR has advocated constantly that States balance the need for international protection with the seriousness of the crime or misconduct. All this normally entails a need to examine the claim substantively and on its merits, which is not possible in an accelerated procedure.

iii) Internal Flight Alternative

Applications raising the issue of "internal flight alternative" raise a number of complex questions, and no international consensus exists as to its precise relevance for the determination of refugee status. In most instances, it will require an in-depth examination to establish whether the persecution faced by the applicant is clearly limited to a specific area and that effective protection is available in other parts of the country. For this reason, it is not appropriate to consider such applications in the same manner as manifestly unfounded applications.
3. Procedural Guarantees for Manifestly Unfounded/ Accelerated Procedures
[original emphasis]
In view of the trenchant criticism of the 1992 London Resolution on Manifestly Unfounded Applications for Asylum by the UNHCR, Professor Goodwin-Gill and by and Messrs Fernhout & Meijers, we are of the view that New Zealand should prefer the guidance offered by Excom Conclusion No 30 to the broader definition of a manifestly unfounded claim as contained in the London Resolution. Excom Conclusion No 30 is particularly attractive because it places at its centre the criteria for the granting of refugee status laid down by the 1951 Refugee Convention and because of its emphasis on safeguards in an arena of decision-making surrounded by unusual risk. Furthermore, Excom Conclusion No 30 and the Rules of 30 April 1998 are already in accord in that both require that at some point during the determination process there be a personal interview. In addition, the Conclusion recommends, and the Rules grant, a right of appeal.

However, as earlier noted, the Conclusion is not binding on the Authority and the New Zealand position must be worked out on a case by case basis. While the Authority’s existing jurisprudence is consistent with the Conclusion, it has already developed its own distinctive domestic features which will expand or change as the necessarily general terms of Excom Conclusion No 30 are applied to specific circumstances. By way of example reference can be made to the presumption of state protection which the Authority has adopted from Canada (Attorney General) v Ward [1993] 2 SCR 689, 724 (SC:Can) and applied to specific countries such as Germany, United States of America, Japan and Fiji. See in particular Refugee Appeal No. 523/92 Re RS (17 March 1995) at 35, 37 and Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) 6-10.

It is now possible to make some general observations.

GENERAL CONCLUSIONS

Ordinarily, the very subject matter of refugee determination combined with the high standard of fairness expected in this jurisdiction would require that an opportunity to attend an interview should be offered by the Authority as a matter of course. However, the Authority also has a duty to address in a meaningful way the high level of abuse to which its processes are presently being subjected.

As a working guideline, in those cases where the Authority has a discretion to interview, the Authority will give each appellant an opportunity to attend an interview unless the claim to refugee status is prima facie manifestly unfounded or clearly abusive. Generally, a claim will be prima facie manifestly unfounded or clearly abusive if it is not related to the criteria for the granting of refugee status laid down in the Refugee Convention or where the claim is clearly fraudulent. This very general definition is not, however, exhaustive of the circumstances in which an interview will not be offered and is to be flexibly construed so as to include those cases where the presumption of state protection properly applies.

On the issue whether the claim to refugee status is manifestly unfounded or clearly abusive, the appellant is clearly entitled to be heard. The Authority will continue its practice of sending out a letter giving notice of the issue of manifest unfoundedness and offering the appellant an opportunity to be heard on that issue before any finding is made. The same considerations will apply under para 9(4), Part II of the Rules to second and subsequent appeals.

In the result the practical effect is that the pre-30 April 1998 regime will continue under the new Rules except in those cases where no opportunity to attend an interview has been given by the Refugee Status Branch.

It is important to note, however, that the identification of a claim as prima facie manifestly unfounded or clearly abusive serves one, and one purpose only, namely to determine whether the Authority will give the appellant an opportunity to attend an interview. Application of the label “manifestly unfounded” or “clearly abusive” is not a ground in itself for dismissing the appeal. Once a finding of manifest unfoundedness has been made, an interview can be dispensed with, but the appeal must still be heard, albeit on the papers. That hearing must be conducted reasonably, fairly and according to law. If the appellant is unable to satisfy the criteria of the refugee definition, the appeal will no doubt be dismissed.

It is to be stressed that the Authority’s discretion under para 9(3), Part II of the Rules is a very general one and is not confined to manifestly unfounded cases. The precise boundaries of this discretion are to be worked out on a case by case basis. It may be, for example, that an appellant who deliberately fails to attend an interview of which he or she has notice, will find the appeal being determined on the papers.

The facts of the present case must now be addressed.

THE APPELLANT’S CASE

The appellant is a 29 year old citizen of Japan who is currently married to a Japanese citizen. He has spent most of his life in Tokyo where his mother, father and two brothers still live. After completing his secondary education the appellant studied law, graduating in March 1991. He does not appear to have practised law to any extent, his employment record showing that in 1992 he worked in financial securities but left after approximately one year due to the long hours and the pressure of work.

From when he was quite young, the appellant socialised with a group of individuals who gradually faded into the background. By the time he graduated from university he had no contact with them. From time to time thereafter he received news of one or other of them and in this way learnt that the group had turned to robbery and violence. In early 1992, however, he met a member of the group by accident but during this social meeting could see no evidence of the allegations he had learnt of. A week later the appellant met again with members of the group and spent a pleasant evening.

A few days later the appellant was contacted by telephone and invited to spend an evening with the entire group. Although hesitant, the appellant agreed and he subsequently met about 15 members of the group at the home of one them. Although he could not put his finger on it, the appellant did not enjoy the atmosphere of the meeting but just as he was coming to the decision that he had nothing in common with his former friends, they announced that they had decided that they wanted him as a member and began congratulating him and shaking his hand. Not wishing to disclose his true feelings, the appellant went along with the occasion. The next day he telephoned one of the group members to advise that he would not be joining. Two days later the appellant was visited by four members who insisted that he had to belong. The appellant relented but it was thereafter that he heard other members, in open discussion, planning robberies and protection schemes. Thereafter the appellant kept a low profile and came to New Zealand in June 1992, where he remained for approximately 11 months working in a Japanese restaurant.

In 1993 the appellant returned to Japan where he worked as an apprentice sushi chef, but feeling under stress from what he called a “crowded” life in Japan, he returned to New Zealand in December 1994 and resumed employment in the restaurant trade. In May 1996 the appellant returned to Japan for a visit of approximately two weeks, returning to New Zealand in early June 1996.

Sometime in 1996 stretching into 1997 the group began to call the appellant’s parents, harassing them with demands for money. When the appellant’s parents refused to comply with the demands, they were abused and were eventually driven to take a temporary lease of an apartment not far from their original premises in order to escape the harassment.

In October 1997 the appellant returned to Japan for one month to speak to the group and to demand that they stop pressurizing his parents. The appellant spent some two weeks speaking to members of the group and was able to persuade them to leave his parents alone. But they told him that at the first chance they would destroy him and warned him to watch his back. On 14 November 1997 the appellant returned to New Zealand and on 25 November 1997 lodged an application for refugee status.

Interviewed by the Refugee Status Branch on 16 April 1998 the appellant said that he had tried to go to the police, but they had told him that as the group had not done anything illegal, they could not intervene. They added, however, that they would attend promptly should the group attempt to do anything illegal. The appellant told the interviewing officer that even though the harassment of his parents had stopped, he was worried that if he went back to Japan he would bump into members of the group again and that they might hurt him. In answer to a suggestion that he could relocate to a different area of Japan the appellant said that he now knew New Zealand and had a job in this country. He speculated that it might be difficult to get a job at his age in Japan. In a decision dated 11 May 1998 the Refugee Status Branch declined the refugee application on the grounds that there was no evidence that should the appellant return to Japan there was a real chance of persecution.

By letter dated 29 May 1998 the appellant’s immigration consultant, Wilson Consultants Ltd, lodged a Notice of Appeal which contained nine words:

“Please accept this letter as formal notice of appeal”.
By letter dated 16 June 1998 the Secretariat gave notice to the appellant through his immigration consultant that as the appellant had been interviewed by the Refugee Status Branch, the Authority had a discretion to give the appellant an opportunity to attend an interview. The letter gave notice that there were grounds for believing that the appellant’s appeal was prima facie manifestly unfounded or clearly abusive and the appellant was invited to make submissions on that issue. He was warned that should the Authority conclude that the appeal was indeed manifestly unfounded or clearly abusive, the appeal would be dealt with on the papers. He was invited to submit such evidence as he wished by 23 June 1998.

There has been no response whatever from the appellant or his immigration consultant.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:
"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."
In terms of Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) the principal issues are:

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?

Because the issue of relocation arises in this case, the decision of this Authority in Refugee Appeal No. 523/92 Re RS (17 March 1995) requires two additional issues to be addressed:

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

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

ASSESSMENT OF THE APPELLANT’S CASE

Even accepting everything that the appellant said in his initial statement and at the Refugee Status Branch interview, this claim to refugee status must fail for the following reasons:

(a)    There is no Convention reason for the anticipated harm;

(b)    There is no evidence that the anticipated harm will reach the level of persecution;

(c)    There is no real chance of the harm eventuating. In addition, the appellant carries the onus of providing “clear and convincing confirmation” of Japan’s inability to protect him: Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) 9- 11. Japan is a parliamentary democracy possessed of a well organized and disciplined police force and has a just and efficient legal system: United States Department of State, Country Reports on Human Rights Practices for 1997: Japan (January 1998) 800. There is not a shred of evidence to rebut the presumption that Japan is capable of protecting the appellant;

(d)    Finally, the appellant can reasonably be expected to relocate elsewhere in Tokyo, or for that matter, elsewhere in Japan. By doing so he will remove himself from the risk of encountering the group in question and he will also be able to access meaningful domestic protection. He has portable skills and the fact that his parents were able to avoid harassment by relocating a short distance from their home underlines the fact that relocation is a viable option for the appellant.

In these circumstances the Authority finds that the appellant’s refugee claim is manifestly unfounded and clearly abusive. For the reasons explained earlier in this decision, the appellant will not be given an opportunity to attend an interview and this appeal falls to be determined on the papers.

CONCLUSION

There being a complete absence of evidence to establish three central elements of the refugee definition and as the appellant can relocate in Japan itself, we find that the appellant is not a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is declined. The appeal is dismissed.

"R P G Haines"
.....................................

Chairman