Proposal

It is proposed that:

1. New Zealand's existing obligations to assess claims to protection under the Refugee Convention, article 3 of the CAT, and articles 6 and 7 of the ICCPR be set out in the Bill, in a single determination procedure
2. a person is in need of protection if:
3. they are a refugee within the meaning of the Refugee Convention
4. as a result of deportation it is more likely than not that the person would personally be subjected to torture within the meaning of the CAT, or
5. as a result of deportation it is more likely than not that the person would personally be subjected to arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment if:
6. the person is unable or, because of the risk, unwilling to avail themselves of the protection of their country of nationality or former habitual residence
7. the risk would be faced by the person in every part of their country and is not faced generally by other individuals in or from that country
8. the risk is not inherent in or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
9. the risk is not caused by the inability of that country to provide adequate health or medical care.
10. departmental protection decision-makers would be called 'determination officers'
11. claimants would be required to put forward any reasons why they may have a claim for international protection under the Refugee Convention, the CAT and articles 6 and 7 of the ICCPR
12. the Refugee Convention should be assessed first in each case on the basis that it establishes a detailed set of rights and entitlements for refugees that are not mirrored in CAT or ICCPR
13. where there were no grounds for assessing CAT or ICCPR, or the clear threshold of "more likely than not" was demonstrably not met, any CAT and ICCPR claim may be dismissed
14. there be a single right of appeal to the Immigration and Protection Tribunal (the tribunal) against a decision of a determination officer to decline protection
15. the tribunal should also be able to hear appeals against decisions to decline protection under one convention, even where the determination officer found the person should be granted protection under one of the other conventions (for example, a person may be declined under the Refugee Convention, but approved under the CAT. They may wish to challenge this decision on the basis that they consider they should be recognised as a refugee), and
16. all appeals against a decision of a determination officer would be de novo appeals and would consider whether the person should be protected under the Refugee Convention, article 3 of the CAT, or articles 6 or 7 of the ICCPR.

Status quo

As set out above, New Zealand has existing obligations not to return a person to another country in particular circumstances under the Refugee Convention, article 3 of the CAT and articles 6 and 7 of the ICCPR. However, under the 1987 Act there is no statutory process for assessing claims to protection under the CAT or articles 6 or 7 of the ICCPR.

Instructions to immigration officers currently require these obligations to be taken into account in removal processes. Claims may also be dealt with by the Removal Review Authority, the Deportation Review Tribunal and the Minister of Immigration (the Minister), with legal support, as individual cases arise. To date, the current system has managed the very small number of claims brought under the CAT and the ICCPR.

Under the current system, decision-makers assessing CAT and ICCPR are not necessarily protection specialists. There is a risk of inconsistent and incorrect decision-making. Decisions are generally made on the papers, and procedural safeguards could be stronger given the potentially serious nature of the issue. As a result, the system may be seen as unfair, and decisions may be vulnerable to judicial review. In addition, people genuinely at risk may not be aware of their ability to seek protection. Such obligations warrant a clear legal framework and determination process.

All persons declined refugee status by the Department of Labour (the Department) may currently appeal to the Refugee Status Appeals Authority (RSAA).

Discussion paper and submissions

The discussion paper proposed that the Refugee Convention, article 3 of the CAT, and articles 6 and 7 of the ICCPR be set out in the Bill, with clear guidelines to aid interpretation, in a single determination procedure, with a single right of appeal.

Organisations that made submissions on this issue included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, the UNCHR, and the Families Commission.

Submitters expressed strong support for the proposal to include New Zealand's international commitments to protect persons facing torture, arbitrary deprivation of life, or cruel, inhuman or degrading treatment or punishment in the Bill. Approximately 85 percent of 96 submitters indicated support for the proposal. Approximately 15 percent of individual submitters, but no organisations, were opposed.

Those who supported the proposal considered that it would confirm New Zealand's commitment to its obligations, ensure that they are applied consistently and accurately, and clarify entitlements. Some submitters, such as Amnesty International New Zealand, commented that the proposal would have a beneficial effect on New Zealand's international standing. Some submitters commented that clear guidelines would be required to aid in interpretation.

There was a high level of support for determining claims under the Refugee Convention, CAT and articles 6 and 7 of the ICCPR in a single procedure, with a single right of appeal. Over 80 percent of 40 organisations and approximately 70 percent of 35 individual submitters agreed with this proposal. Fewer than 10 percent of all 75 submitters were opposed.

The UNHCR expressed support for a single procedure for determining the protection needs of an applicant, commenting that such a system would avoid fragmentation and duplication, utilise the expertise of existing refugee status authorities and assist in prompt decision-making.

Comment

Based on the significant public support for these proposals, there have been no significant changes from the approach proposed in the discussion paper. Canada, the UK, and a number of European Union countries have single determination procedures that assess refugee status and broader humanitarian obligations.

The proposed test for CAT and ICCPR would simplify and standardise the test for non-return, and is similar to the approach taken in Canada's legislation. In so far as the express wording of article 3 of the CAT differs from that proposed, it does not do so in any material way.

Both the European Court of Human Rights (ECtHR) and English courts have emphasised that the ICCPR obligations do not extend to a general duty not to deport persons who are in need of medical care that will not be provided in their home country. The proposed approach relating to medical care reflects these findings and mirrors Canada's legislation.

The proposed process for decision-making would ensure any grounds for assessing CAT and ICCPR obligations would come to light in the Refugee Convention assessment, and that subsequent claims could be made only on the basis of a change in circumstances - not on the basis that a particular convention was not assessed.

Proposals

It is proposed that determination officers would have the additional function of assessing whether there are serious reasons for considering that a claimant has:

1. committed a crime against peace, a war crime, or a crime against humanity
2. committed a serious non-political crime outside New Zealand prior to entry to New Zealand, or
3. been guilty of acts contrary to the purposes and principles of the United Nations.

Under the Refugee Convention, these provisions have the effect of excluding a person from the Refugee Convention, which means the person may be deported unless they are also protected under CAT or ICCPR.

Where a person was found to be protected under CAT or ICCPR and to have committed one or more of the acts set out above, New Zealand would still be required (as now) not to return that person to torture or cruel treatment. It is proposed that the Minister would be responsible for determining what immigration status, if any, be given to persons protected under CAT or ICCPR but excluded from the Refugee Convention. As discussed below, prosecution in New Zealand or extradition to a safe third country may also be options.

Status quo

As noted, only the Refugee Convention, including its exclusion provisions, is codified in the 1987 Act. The RSAA has applied the exclusion provisions of the Refugee Convention 18 times since 1995. It does not necessarily follow that such persons would be in danger of torture or protected under the ICCPR. However, [Information withheld under section 9(2)(h) of the Official Information Act 1982], unlike the Refugee Convention, article 3 of the CAT, and articles 6 and 7 of the ICCPR do not exclude anyone from protection, and do not allow any such protected person to be expelled. This is currently implemented administratively.

Discussion paper and submissions

The proposal essentially mirrors that in the discussion paper, which proposed to clarify the mechanisms (such as prosecution or extradition) for dealing with persons who have committed very serious crimes, including torture or genocide. The discussion paper noted that the possibility of excluding persons from protection under CAT and ICCPR was not feasible on the basis that it would place New Zealand in breach of its international obligations and the NZBORA.

The discussion paper did not generate widespread comment on this issue. A number of submitters expressed the view that the emphasis should be on the protection of New Zealand and its citizens and residents. One submitter commented that there needs to be provision for expelling those who have committed serious crimes.

Comment

The review considered a range of options, from excluding all persons from protection where they may be excluded under the Refugee Convention, to specifying in the legislation that all international obligations must be upheld. The proposal represents a middle ground, which requires the process to clearly identify persons of risk to allow an appropriate response to be considered, within the bounds of our international obligations.

Jurisdictions including EU countries, the UK, Canada and Australia have legal precedent and/or legislation generally prohibiting expulsion where CAT and ICCPR apply. The ECtHR has consistently upheld this prohibition, as has the UN's Special Rapporteur on Torture, and the Human Rights Committee.[8] In June 2005, New Zealand's Supreme Court indicated, consistent with international precedent, that articles 6 and 7 of the ICCPR and the corresponding sections 8 and 9 of the NZBORA did not allow New Zealand to deport a person if:

'...there are substantial grounds for believing that, as a result of the deportation, the person would be in danger of being arbitrarily deprived of life or of being subjected to torture or to cruel, inhuman or degrading treatment or punishment.'[9]

The practice of EU countries (including the UK), Australia, the Human Rights Committee, the ECtHR, the United Nations Committee Against Torture, and the Special Rapporteur on Torture follow this approach.

EU States and Canada which have incorporated the broader range of international obligations into their domestic legislation have mirrored assessment of the Refugee Convention's exclusion grounds in their legislation in respect of those broader grounds, as proposed above. This approach has the effect of limiting the status they are given, rather than resulting in deportation, which remains prohibited.  EU states and other states party to CAT and ICCPR have been prevented by courts, or persuaded by United Nations Committee decisions, from proceeding with deportations to countries where a person faces the risk of torture.

To date, the Canadian Supreme Court has been alone in indicating that deportation to torture in truly exceptional circumstances, such as a threat to national security, may not breach Canada's Charter of Rights and Freedoms, although it accepts that it is contrary to CAT and ICCPR obligations. This position has been strongly criticised, not least for inconsistency with the absolute prohibition against expulsion to torture under the CAT.  In light of increasing security concerns, however, it is possible that in the future courts could take a more conservative interpretation of these obligations in a manner similar to the Canadian Supreme Court.

The practical outcome of allowing the deportation of even a narrow group of protected persons would be that, in some cases, New Zealand may return a person to torture, arbitrary deprivation of life, or cruel, inhuman or degrading treatment or punishment. It would place New Zealand in breach of its international obligations and the NZBORA, and New Zealand would face criticism from the United Nations Committees that monitor compliance with the conventions. The New Zealand government has, to date, complied with Committee decisions, as do most developed countries.

The proposed approach would ensure that New Zealand's international obligations were upheld, but that the small number of persons excludable under the Refugee Convention and protected under CAT or ICCPR would be clearly identified. This approach would allow for New Zealand's decisions on how to deal with such persons to respond to any future changes in these legal obligations.

Under this approach the Minister may choose to afford the person temporary or permanent protection. Country conditions often change over time, and the need for protection may be temporary only. In addition, as discussed in more detail below, return with diplomatic assurances of safety, prosecution in New Zealand, or deportation or extradition to a safe third country may also be appropriate responses.

Protection in New Zealand

Return with diplomatic assurances of safety, prosecution in New Zealand, or deportation or extradition to a safe third country, as discussed below, will not always be possible. For example:

1. there may be no safe third country available for deportation or extradition
2. constraints on the ability to prosecute in New Zealand are likely to include the difficulty of obtaining sufficient evidence and the extremely high costs involved. The prosecution and extradition provisions outlined below have not been used to date and are only rarely likely to be viable
3. there may be persons who have not yet committed a crime but are nonetheless persons of particular concern, or
4. deporting a person who is a major security risk (to New Zealand or other countries), may not be in the best interests of New Zealand or countries with which it is working collaboratively.

[Information withheld under section 9(2)(g)(i) of the Official Information Act 1982]

Return with diplomatic assurances of safety, prosecution in New Zealand, or deportation or extradition to a safe third country

Proposal

It is proposed that the immigration status given to refugees and protected persons remain a matter for Immigration Instructions. Current operational policy allows for approved refugees to apply for residence on that basis.

Proposals

It is proposed that refugees and protected persons may become liable for deportation in the normal way, as set out in Chapter Five: Deportation, with the exception of fraud. For example, refugees and protected persons may become liable for deportation if they commit a serious criminal offence, or are found to be a threat or risk to national or international security.

In the case of fraud, it is proposed that a refugee or protected person would become liable for deportation where a determination officer determines that the status may have been gained by fraud, forgery, false or misleading representation or concealment of relevant information, and that the person is not in need of protection now (status quo). The onus would rest on the person themselves to establish their case for protection after a finding of fraud (status quo).

It is proposed that, mirroring the grounds for protection proposed above, the Bill would prohibit deportation of a person if:

1. they are a refugee within the meaning of the Refugee Convention, unless article 32.1 or article 33.2 allows it
2. as a result of deportation it is more likely than not that the person would personally be subjected to torture within the meaning of the CAT, or
3. as a result of deportation it is more likely than not that the person would personally be subjected to arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment if:
4. the person is unable or, because of the risk, unwilling to avail themselves of the protection of their country of nationality or former habitual residence
5. the risk would be faced by the person in every part of their country and is not faced generally by other individuals in or from that country
6. the risk is not inherent in or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
7. the risk is not caused by the inability of that country to provide adequate health or medical care.

Protected persons liable for deportation (with the exception of threats to national or international security) would have available to them a single appeal right as discussed in Chapter Six: Review and appeal. This appeal would assess the facts where applicable (such as fraud), any current need for protection (as set out in paragraph 331 above), and any additional humanitarian appeal test.

It is proposed that where the tribunal had allowed the initial protection decision, the determination officer would refer the case to the tribunal directly.

Status quo

The 1987 Act prohibits deportation of a person if they are a refugee within the meaning of the Refugee Convention, unless article 32.1 or article 33.2 allow it. The proposed process for determining fraud above mirrors the status quo. There is, however, no clear process for assessing protection obligations in regard to refugees or protected persons who become liable for deportation through criminal offending.

Discussion paper and submissions

The discussion paper proposed that the legislation expressly prohibit the expulsion of a person where prohibited by New Zealand's international obligations. There was a high level of support in public submissions for clarifying in the legislation when a protected person may be deported. 90 percent of 33 individual submitters supported the proposal. 60 percent of 34 organisations agreed that the legislation should clarify when a protected person may be expelled, and 10 percent of organisations disagreed.

Comment

In combination with the appeals proposals in Chapter Six: Review and appeal, this proposal would ensure a clear and robust process for assessing whether or not a refugee or protected person may be deported.

Proposal

It is proposed that protection claims may not be made by New Zealand citizens as their citizenship guarantees them Crown protection. It is proposed that protection claims may be made by residents or permanent residents where that person has been issued with a deportation liability notice.

Status quo

Protection claims may not be made by New Zealand citizens and residents who already enjoy the full protection of the Crown. Protection concerns raised by residents who become liable for deportation must be addressed administratively or in the context of a humanitarian appeal, rather than through the formal determination process.

Discussion paper and submissions

This issue has arisen in the detailed analysis undertaken subsequent to the public consultation process.

Comment

This proposal addresses the difficulty that currently arises when a resident becomes liable for deportation and allows such claims to be determined by protection experts.

Proposal

In addition to the functions discussed at paragraphs 289 and 309 it is proposed a determination officer must determine whether a person who has been recognised as a Convention refugee or other protected person by another country is not a refugee or protected person in New Zealand on the basis that they can be received back and protected in another country without the risk of being returned to a country where they are at risk.

Status quo

This proposal mirrors a current function of refugee status officers.

Discussion paper and submissions

The discussion paper proposed that all legislative functions relating to refugee status determination be extended to the broader protection scheme. No submissions were received on this issue.

Comment

This proposal ensures that New Zealand is not obliged to protect non-citizens who have been, and can continue to be, protected in another country.

Proposal

It is proposed that:

1. a protection claim is made as soon as a non-citizen in New Zealand signifies their intention to seek to be recognised as a refugee, or a protected person, to a representative of the Department, or to a member of the New Zealand Police
2. once a protection claim is made, the claimant must confirm the claim in writing in the prescribed manner
3. it is the responsibility of the claimant to establish the claim, and to ensure that all information, evidence and submissions are provided to the determination officer before a determination is made
4. claimants must provide a current address in New Zealand to which communications may be sent, and a current residential address, and must notify changes to either of those addresses, and
5. if a claimant leaves New Zealand their claim is considered to be withdrawn.

Status quo

This proposal mirrors the obligations on refugee claimants in the 1987 Act.

Discussion paper and submissions

The discussion paper proposed additional obligations on claimants and additional offences relating to informing officers of changes in circumstances, and not procuring protection through fraud. Submitters considered that the prospect of having a claim declined should be incentive enough for people to provide information. UNHCR recommends that protection claimants are not penalised for using false documentation. In light of these submissions and further analysis, no new obligations or offences are proposed.

Comment

This proposal ensures that there are clear and transparent obligations on persons seeking to engage with the protection determination system, but does not create offences that are in breach of recommended international standards.

Proposals

It is proposed that:

1. in carrying out all their functions, determination officers must act in a manner that is consistent with New Zealand's obligations under the relevant conventions
2. subject to provisions in the Bill and any regulations made under it, and the requirements of fairness, determination officers may determine their own procedures
3. determination officers may decide the order in which matters are to be handled
4. determination officers may not also be employed to administer other immigration matters
5. determination officers may seek information from any source but are not obliged to seek any information, evidence or submissions further to that provided by the claimant or protected person under investigation
6. determination officers may determine a matter on the basis of the information, evidence and submissions provided by the claimant or protected person under investigation
7. determination officers may rely on the latest address provided for the purposes of communication
8. determination officers may require a claimant or protected person under investigation to attend an interview
9. determination officers may require a person in charge of a detention facility to produce a claimant or protected person under investigation for interview, and
10. where a claimant or protected person under investigation who is required to attend an interview fails to attend, determination officers may determine the case without conducting the interview.

It is proposed that determination officers should have the following powers in regard to requiring information for the purpose of protection matters:

1. determination officers may require a claimant or protected person under investigation to supply such information, and within such times, as the officer reasonably requires
2. determination officers may require a claimant or protected person under investigation to produce such documents in their possession or within their ability to obtain as the officer requires
3. determination officers may require a claimant or protected person under investigation to consent to the release by another person of any relevant documents or information relating to that person, and
4. if the officer has good cause to suspect that a person other than the claimant or protected person under investigation has in their possession or control any document of the claimant or protected person under investigation (including any passport or travel document), the officer may request the person to produce any such document

It is proposed that the Bill explicitly authorise government departments to comply with requests for information from a determination officer to assist with determining protection matters.

Status quo

The proposals at paragraphs 350 and 351 mirror the status quo regarding refugee determination. The proposal at paragraph 352 is possible under the Privacy Act 1993, but the Privacy Act provisions allowing such information sharing are commonly misunderstood by government departments.

Discussion paper and submissions

The discussion paper proposed that all legislative functions relating to refugee status determination be extended to the broader protection scheme. No submissions were received on this issue.

Comment

In addition to requiring the onus of proof to rest on the claimant, allowing determination officers to conduct robust inquiries is an essential tool for identity and credibility to be tested, and for good decision-making.

Establishing a person's identity is crucial to maintaining integrity in the immigration system, but is often problematic. Many refugees or persons fleeing torture do not have identity documents and, in such cases, home country verification is generally not possible. Decision-makers therefore require other mechanisms for establishing identity and credibility.[10]

Not all asylum claimants are recent arrivals. Some have a significant history in New Zealand that is relevant to assessments. Information from other government departments may be pertinent to determining protection claims.

The proposal at paragraph 352 addresses the problem that officers can be hindered in their investigations by an inability to obtain information from other government departments. At present, officers must use the Official Information Act 1982 or the Privacy Act to request such information. From time to time other agencies take the view that it is not within the bounds of the Privacy Act to share the information (that it is not required for the maintenance of the law).

Proposals

It is proposed that:

1. further claims to protection be allowed only where there has been a significant change in circumstances material to protection status, that was not generated by the claimant, since a decline decision
2. in any further claim, the claimant may not challenge any finding of credibility or fact made in relation to a previous claim and the officer may rely on any such finding, and
3. a determination officer may refuse to consider a further claim where:
4. the claim is manifestly unfounded or clearly abusive, or
5. the previous claim is simply repeated.

It is proposed that a claimant may appeal to the tribunal against a decision of a determination officer to refuse to consider a claim on the basis that there has not been a significant change in circumstances material to protection status, which was not generated by the claimant.

It is proposed that a claimant may not appeal to the tribunal against a decision of a determination officer to refuse to consider a further claim on the basis that it is manifestly unfounded, clearly abusive, or simply repeated.

Status quo

Under the 1987 Act, a subsequent claim for refugee status may not be considered unless the refugee status officer is satisfied that 'circumstances in the claimant's home country have changed to such an extent that the further claim is based on significantly different grounds to the previous claim'. In practice, this is interpreted to encompass claims where a person's personal circumstances (such as their political or religious or family profile) have changed, on the basis that their circumstances in the home country would change as a result, if they were to return. A claimant may appeal against a decision of an officer to refuse to consider a subsequent claim.

Discussion paper and submissions

The discussion paper presented the first part of the proposal, but proposed that appeals be allowed "with leave" of the tribunal rather than expressly limiting the types of further claimants who can appeal. Approximately 75 percent of 36 organisations and 60 percent of 34 individual submitters supported the proposal in the discussion paper. Almost a quarter of individual submitters, but no organisations, opposed the proposal.

The appeal aspect of this proposal has been adjusted on the basis that leave provisions can be complex and a clear demarcation of who may have a further appeal and who may not would be preferable.

Comment

A person whose claim has been declined may have grounds for a new claim if their circumstances change significantly after the decline decision. For example, political regimes may change in the home country to the claimant's disadvantage or a previously safe claimant may come to the regime's attention.

While the current jurisprudence allows subsequent claims to be lodged where personal circumstances have changed, the legislation could be interpreted differently in the future. A person could be found to be a genuine refugee, but the claim could be invalid due to the limitation of domestic legislation. This would be inconsistent with New Zealand's obligations under the Refugee Convention.

It is appropriate, however, to establish a limit to subsequent claims to prevent ongoing cycles of claims. Prior to the introduction of the current limitation on subsequent claims, there were significant numbers of abusive repeat claims. The current threshold has helped to reduce these numbers significantly.

Proposal

It is proposed that:

1. the confidentiality as to the identity of a protection claimant and the particulars of the case, must at all times, during and subsequent to the determination of the claim, be maintained by all, including the media and that only express permission by the claimant could waive this provision, and
2. 368(a) should not apply to prevent disclosure of particulars by the Department or the tribunal:
3. to a person necessarily involved in determining the relevant claim or matters, or
4. to an officer or employee of a Government department or other Crown agency whose functions in relation to the claimant or other person require knowledge of those particulars, or
5. in dealings with other countries for the purpose of determining protection status, or
6. to the UNHCR or a representative of the High Commissioner, or
7. to the extent that the particulars are published in a manner that is unlikely to allow identification of the person concerned, or
8. if there is no serious possibility that the safety of the claimant or any other person would be endangered by the disclosure in the particular circumstances of the case.

It is proposed that the purpose of (b) ii above is to allow information to be shared, for example, for the purposes of assessing the protection claim itself, or eligibility to services such as legal aid or social welfare. In addition, it may be used in relation to a police investigation, or subsequent investigation of fraud.

Status quo

The 1987 Act requires that persons involved in determining refugee status at first instance and on appeal, must keep the identity of a refugee status claimant confidential both before and after a claim is determined, with limited exceptions. Exceptions relate to disclosure to sources that may assist with the determination and would not endanger the safety of any person.

Discussion paper and submissions

The discussion paper proposed that all legislative functions relating to refugee status determination be extended to the broader protection scheme. The changes proposed were not explicitly discussed in the public discussion paper, as they have arisen in light of further analysis.

Comment

The current confidentiality provisions have the starting point that the claim must be confidential in all cases. Exceptions are then provided for to allow decision-makers to conduct investigations that have appropriate safeguards. However, the provisions do not apply to a person who is not involved in the decision-making process, including the media. In practice, therefore, the provision is not always effective in preventing the risks it is designed to prevent.

In comparison, the Criminal Justice Act 1985 makes an assumption of confidentiality in relation to the victims of certain sexual offences and child witnesses that extends to any publication by the media. The Criminal Justice Act prohibits the publication of the name or identifying particulars of children who are witnesses in criminal proceedings, and victims of specified sexual offences without their permission.

These proposals would better ensure that knowledge of the person's claim is not reported back to the home country. This may prevent potential persecution on the person's return to their home country should they be declined and/or potential persecution of the person's family who may still be in the home country while the claim is being determined. These proposals may also help to prevent a genuine claim being created where there was no claim previously.

Proposals

It is proposed that Immigration Instructions be updated to allow for protection claimants to be granted work or other appropriate temporary permits while awaiting a decision on a protection claim or appeal.

It is proposed that the Bill should prohibit failed protection claimants from applying for any type of further permit while in New Zealand (status quo). The Bill should clarify, however, that this provision has no further effect once a person leaves New Zealand or in the event that a person is granted a visa in exception to normal policy.

Status quo

Current operational policy allows for refugee status claimants to be granted work or other appropriate temporary permits while awaiting a decision on a refugee claim or appeal. The 1987 Act prohibits failed refugee status claimants from applying for any further permit while in New Zealand, but could be clearer.

Discussion paper and submissions

There was no proposal to change the status quo in the discussion paper. No submissions were received on this issue.

Comment

This provision helps maintain the integrity of the protection system by preventing further manipulation of the system by a failed claimant. There are no mechanisms for a person to remain lawfully in New Zealand unless they leave and apply from offshore. This proposal clarifies that this provision should cease to apply to persons who leave New Zealand and may wish to apply to return in the future, or who are granted a visa in exception to normal policy.

Proposal

It is proposed that the Bill should allow for refugees to be selected offshore, brought to New Zealand, and recognised as refugees in New Zealand without needing to be subject to a formal determination process in New Zealand.

Status quo

In addition to approved asylum seekers onshore, New Zealand resettles up to 750 UNHCR-mandated refugees each year. The 1987 Act does not explicitly provide for UNHCR-mandated refugees to be recognised as refugees in New Zealand, although it is implied in the power of a refugee status officer to cancel the status of UNHCR-mandated refugees.

Discussion paper and submissions

This proposal mirrors that presented in the discussion paper. Approximately 85 percent of 37 organisations supported this proposal and of 37 individuals, approximately a half supported the proposal and a quarter opposed it. Of those who opposed the proposal, there seemed to be some concern about extending protection to a further group of people, which is a misunderstanding.

Comment

While, in practice, persons brought to New Zealand under the Refugee Quota Programme are treated as refugees according to the Refugee Convention, domestic legislative support for this practice could be clearer.

Proposal

It is proposed:

EITHER, OPTION A

1. that New Zealand should not become party to the Stateless Persons Convention at this time due to the need for more comparable international information to quantify the costs and risks to New Zealand, and because, if they get here, genuine stateless persons can be allowed to remain in New Zealand using other existing mechanisms

OR, OPTION B

1. to direct officials to report back on becoming party to the Stateless Persons Convention without incorporating it into the proposed single determination procedure in the Immigration Bill, in line with the practices of other countries

OR, OPTION C

1. to incorporate an assessment of the Stateless Persons Convention into the proposed single determination procedure in the Bill, to be assessed following assessments of the other obligations in all cases, in line with the recommendations of the UNHCR, and
2. to accede to Stateless Persons Convention following treaty examination and passing of the Bill and to table the Convention and a National Interest Analysis for becoming party to the Convention in Parliament.

Status quo

Discussion paper and submissions

Approximately 75 percent of 43 organisations and 65 percent of 36 individual submitters expressed support for New Zealand becoming party to the Stateless Persons Convention.

Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, an education sector representative, a territorial authority, the Families Commission and the UNHCR.

Many submitters considered that becoming party would be consistent with New Zealand's support for international human rights, with Amnesty International commenting that to not do so would undermine New Zealand's credibility in this area. A number of submitters commented that statelessness is a growing international problem and that signing the Convention would ensure that New Zealand has a proper process for dealing with such people. The UNHCR and the Human Rights Commission strongly encouraged New Zealand to become party.

Some submitters considered that there are serious risks of increasing numbers of applications. Approximately 20 percent of individual submitters and just over five percent of organisations expressed the view that New Zealand should not become party to the Stateless Persons Convention.

What do other countries do?

As at February 2006, 59 countries were party to the Stateless Persons Convention, including Australia, Norway and 13 EU member states. In comparison 145 countries were party to the Refugee Convention in February 2006.

In contrast to practices relating to the Refugee Convention, most countries party to the Stateless Persons Convention including Australia, Norway and the UK, do not have clear determination procedures. In these countries, the matter is dealt with case-by-case, in asylum procedures or when applications for residence or travel documents are made. Many states including Australia, Spain and the UK, consider that the Convention does not confer a general right on stateless persons to enter or remain unless the Refugee Convention applies.

Despite the overall large number of stateless persons worldwide (11 million), all of the countries investigated have low numbers of stateless persons arriving or claiming in their country. This may be due to the fact that it is difficult for stateless persons to obtain travel documents. Further, to the best of our knowledge, no other country allows a stateless person to enter on the basis of their commitments under the Stateless Persons Convention.

Canada is not party to the Stateless Persons Convention and it recently reviewed this decision in 2003.  Canada believes that Canadian legislation and practice relating to refugees provides protection to stateless persons, consistent with what is called for in the 1954 Convention on Statelessness.

Comment

In December 2003, Cabinet considered becoming party to the Stateless Persons Convention. Cabinet decided that New Zealand should not become party at that time, as it would require legislative and operational change that could have substantial costs, and invited the Minister to consider becoming party in the Immigration Act review.