Section 14 - New Zealand's Role as an International Citizen |
As discussed in Section 3: Purpose and principles, New Zealand has an important role to play as a good international citizen and places a high value on human rights. New Zealand is party to a number of international agreements that have immigration consequences. Some agreements are designed to ensure international protection exists for those entitled to it. Other agreements uphold general human rights that may need to be taken into account in the immigration context.
Currently, only the Refugee Convention is incorporated into immigration legislation. However, the New Zealand courts have found that a range of international human rights instruments that New Zealand is party to must be taken into account in immigration decision-making. These are currently incorporated into immigration operational policy.
This section primarily discusses options to set out relevant international obligations in immigration legislation. This would provide greater clarity and transparency in New Zealand's international protection regime, complementing the core refugee protection regime. This approach would be similar to complementary protection regimes in Canada, the United Kingdom (UK) and Europe and was encouraged by the Executive Committee of the United Nations High Commissioner for Refugees (UNHCR) in October 2005.
New Zealand's immigration-related international obligations are set out in Table 12 below:
The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the Refugee Convention) |
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The 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention Against Torture) |
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The International Covenant on Civil and Political Rights (ICCPR) |
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The United Nations Convention on the Rights of the Child (UNCROC) |
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The Refugee Convention is currently incorporated into the Immigration Act. Like the Refugee Convention, article 3 of the Convention Against Torture and articles 6 and 7 of the ICCPR create obligations not to return a person to a country where there are substantial grounds for believing that they would be in danger of being subjected to particular human rights abuses. This subsection asks whether these obligations should also be incorporated into immigration legislation.
This section does not discuss incorporating international obligations which do not present an absolute obligation not to return a person to particular risk, such as articles 23 and 24 of the ICCPR and articles 3 and 9 of UNCROC. These obligations are characterised by the fact that they may not be the decisive factor in the decision. Rather, the decision-maker has to balance competing factors, such as the right of the country to decide who should reside within its borders and the need to be fair to migrants who have not met policy requirements and who have left New Zealand.
New Zealand has agreed to the obligation under article 3 of the Convention Against Torture not to return a person to another country where there are substantial grounds for believing that she or he would be in danger of being subjected to torture. Article 3 allows no exceptions for criminal offenders or security threats.
While New Zealand accepts the article 3 obligation and considers claims when they arise, it is not incorporated into immigration legislation. Instead, it is met through administrative processes (discussed in detail in Subsection 14.2.1 below).
Article 6 of the ICCPR requires that no one shall be arbitrarily deprived of life. Article 7 of the ICCPR requires that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.
While there is no express prohibition in the ICCPR against expulsion of persons at risk of such treatment, there is widespread agreement that prohibition should be inferred. In June 2005, New Zealand's Supreme Court (Attorney-General v Zaoui (No.2) [2005] NZSC 38) found that sections 8 and 9 of the Bill of Rights Act and articles 6 and 7 of the ICCPR did not allow New Zealand to deport 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.'
EU countries (including the UK), Australia and Canada, the Human Rights Committee, the European Court of Human Rights and the Special Rapporteur on Torture support this view.
There is no reference to articles 6 and 7 of the ICCPR in current immigration legislation. Immigration operational policy, however, requires that the ICCPR generally be considered (and weighed up against other factors) prior to removing a person from New Zealand. In a number of cases, de facto protection has been extended (by the Department of Labour, the Minister of Immigration or the Removal Review Authority) to individuals who face inappropriate treatment in their home country.
To date, the current system has managed the small number of claims brought under the Convention Against Torture. There have been no recorded claims made under the ICCPR (although relevant issues may have been raised in the context of humanitarian appeals).
It is anomalous, and potentially confusing to decision-makers, that obligations which are absolute and directly linked to immigration decision-making are not specifically incorporated into immigration legislation. Such obligations arguably warrant a clear legal framework and determination process that contributes to understandable and accessible legislation.
There are potentially complex issues to be worked through regarding the definition of articles 6 and 7 of the ICCPR, such as what constitutes cruel treatment and arbitrary deprivation of life. It would be helpful for New Zealand to work these issues through in the context of drafting legislation prior to any major challenges.
This review also creates an opportunity to consider how New Zealand should manage serious criminal offenders or threats to security who are protected from expulsion from New Zealand by either the Convention Against Torture or the ICCPR. As discussed in Section 3: Purpose and principles, maintaining the safety and security of New Zealand is a key purpose of New Zealand's immigration system. It is also an essential element in maintaining the credibility of any protection regime under international law. People who violate the rights of others should be prosecuted and punished in accordance with the law.
Australia has no specific reference to the Convention Against Torture or the ICCPR in its immigration legislation or policy. Only the Minister for Immigration has the discretion to consider these obligations. All ministerial intervention requests involve an assessment of Australia's obligations under the Convention Against Torture and the ICCPR.
Canada's legislation allows those at risk of being subjected to torture, or risk to life, or cruel and unusual treatment or punishment, to be protected. Canada excludes protection if a person is inadmissible on grounds of security, violation of human or international rights, serious criminality or organised criminality, or is named in a security certificate. Inadmissibility criteria can be waived through ministerial intervention, however, and we are not aware of Canada actually returning any person to treatment prohibited under international law.
The European Convention on Human Rights (ECHR) sets out that no one shall be subjected to torture or inhuman or degrading treatment or punishment (equivalent to article 7 of the ICCPR), and jurisprudence has confirmed that this includes a non-return obligation. The UK'sHuman Rights Act 1998 gives effect to the rights and freedoms guaranteed under the ECHR. Based on these obligations, the UK grants protection where removal would be in breach of the ECHR.
In addition, in April 2004 the EU adopted an agreement defining who should be granted protection in addition to convention refugees. This agreement included persons who are not refugees, but for whom there are substantial grounds for believing that, if returned, they would face a real risk of suffering serious harm. Serious harm includes the death penalty or execution, and torture or inhuman or degrading treatment or punishment. EU countries must make sure their national laws comply by October 2006.
For the reasons discussed above, the status quo is not considered optimal for the future. At this stage, only one approach is considered likely to meet the objectives of this review.
The obligations under article 3 of the Convention Against Torture and articles 6 and 7 of the ICCPR would be incorporated into New Zealand's immigration legislation. Clear guidelines would be set out to aid interpretation.
New Zealand would clarify (in the appropriate legislation) the mechanisms for dealing with persons who have committed very serious crimes including, for example, torture or genocide, or who are security threats but who cannot be expelled (for example, prosecution, extradition or surrender to an international tribunal).
Inclusion of article 3 of the Convention Against Torture and articles 6 and 7 of the ICCPR into immigration legislation would ensure that the immigration implications were clear in domestic law. It would allow for a clear process for determining claims to be set out in legislation (discussed further below) and could ensure that New Zealand is prepared for unanticipated future situations when claims may increase. It also would be regarded as best practice internationally and is encouraged by the United Nations.
While this option may be perceived as a significant broadening of New Zealand's protection regime, in essence, it is simply clarifying in legislation a protection regime that already exists and is administered through the Minister of Immigration, the Removal Review Authority, the Deportation Review Tribunal or departmental discretion.
The Australian Department of Immigration and Multicultural Affairs has recently noted that there is no indication that there are significant numbers of persons entitled to Convention Against Torture or ICCPR protection who do not also meet the Refugee Convention definition of a refugee. The development of legislative guidelines for the interpretation of articles 6 and 7 of the ICCPR could, however, be contentious.
New Zealand may, at some point, be obliged not to expel a person under either the Convention Against Torture or the ICCPR, even though that person has committed a serious international crime such as a crime against humanity, genocide or torture, or is considered to be a security threat. Persons accused of such crimes may be prosecuted in New Zealand (regardless of where the crime was committed) or surrendered to an international criminal tribunal such as the International Criminal Court in the Hague. Precedent has been set for such prosecutions by the UK.
Provision also exists to extradite such persons to a third country where they can be prosecuted for their alleged crimes. Processes could also be put in place to deport a person if the need for protection disappeared.
Clarifying in legislation the mechanisms for dealing with such cases would ensure that robust processes were in place to deal with such a situation, should it arise. New Zealand would be in a good position to reassure the international community that, while we are committed to our protection obligations, we are also very conscious of our equally important obligation to ensure that perpetrators of serious international crimes are brought to justice.
Making Convention Against Torture and ICCPR obligations explicit in legislation may generate awareness of New Zealand's position on this matter. This could create a 'pull factor' for persons seeking protection and for persons attempting to abuse the system. This risk is mitigated by the fact that the EU, Canada, Australia and the United States all have protection regimes in place for persons at risk of torture; cruel, inhuman and degrading treatment or punishment; and arbitrary deprivation of life.
The review has carefully considered whether legislation could exclude persons from protection under the Convention Against Torture and the ICCPR, who may be excluded or expelled under the Refugee Convention (such as persons who threaten national security).
The practical outcome of legislative exclusions would be that, in some cases, New Zealand could be returning a person to torture; arbitrary deprivation of life; or cruel, inhuman or degrading treatment or punishment. As stated in the New Zealand Supreme Court decision quoted above, this would place New Zealand in breach of its international obligations and the New Zealand Bill of Rights Act.
United Nations Committees that monitor compliance with the conventions and investigate complaints could ask New Zealand to report on and remedy any breach of its convention obligations. The Convention Against Torture and the First Protocol to the ICCPR provide complaint mechanisms for individuals to seek a ruling from the relevant United Nations Committee on breaches of obligations. Moreover, New Zealand could lose moral and political standing internationally and an ability to influence the behaviour of other countries in ways that we consider would promote regional and global peace, security and development.
14.1 Key question
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This subsection considers the process through which New Zealand should fulfil its obligations under article 3 of the Convention Against Torture and articles 6 and 7 of the ICCPR. (This is only applicable if it is decided that these obligations should be included in immigration legislation.)
As discussed above, there is no reference to the Convention Against Torture or articles 6 or 7 of the ICCPR in the Immigration Act. 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, as individual cases arise.
Fewer than 20 people are known to have claimed protection under article 3 in New Zealand, and only one claim has been successful on torture grounds. No claims are known to have been made explicitly under articles 6 or 7 of the ICCPR. The risk of cruel, inhuman and degrading treatment or arbitrary deprivation of life may have been raised in humanitarian appeals to an independent authority, the Department of Labour or the Minister of Immigration.
The current processes for determining claims appear to have been adequate to date, due to minimal claims being made, and there have been no challenges via judicial review.
Under the current system, decision-makers do not necessarily have the appropriate expertise. There is the risk of inconsistent and incorrect decision-making. Decisions are generally made on the papers, and procedural safeguards may not be adequate in relation to the potentially serious nature of the issue. As a result, the system may be seen as inequitable and unfair, and decisions may become vulnerable to judicial review. In addition, people genuinely at risk of arbitrary deprivation of life; torture; or cruel, inhuman or degrading treatment of punishment may not be aware of their ability to seek protection.
New Zealand has undertaken to consider, in the context of work on the Immigration Act review, the United Nations Committee Against Torture's recommendations that 'New Zealand consider establishing a single procedure in which there is first an examination of refugee status, to be followed by examination of other possible grounds for the grant of complementary forms of protection, in particular, under article 3'.
Like New Zealand, Australia does not have a legislative process for determining Convention Against Torture or ICCPR claims. Consideration of all obligations other than refugee status is at the discretion of the Minister for Immigration, following refugee status determination, and is supported by departmental advice only.
Canada and the UK both have single determination procedures that assess refugee status and broader humanitarian obligations. Canada has a single determination process that assesses refugee status and whether a person is at risk of being subjected to torture or risk to life, or risk of cruel and unusual treatment or punishment. The UK has a single process that first assesses refugee status and then whether they are at risk of the death penalty, unlawful killing, torture, or inhuman or degrading treatment or punishment.
For the reasons discussed above, the status quo is not considered desirable for the future. At this stage, only one approach is considered likely to meet the principles of fairness, and effective and efficient decision-making.
Jurisdiction to determine claims under the Convention Against Torture and articles 6 and 7 of the ICCPR would be given to refugee status officers (renamed, for example, protection officers) at first instance and the Refugee Status Appeals Authority (or a renamed protection appeals stream of a single authority) on appeal.
Claimants would be required to put forward any reasons why they may have a claim for international protection under the Refugee Convention, the Convention Against Torture and articles 6 and 7 of the ICCPR. All claims, no matter how specific, would be assessed according to the Refugee Convention, the Convention Against Torture and articles 6 and 7 of the ICCPR. This would ensure that subsequent claims could only be made on the basis of a change in circumstances - not on the basis that a particular convention was not assessed. (Subsection 14.2.4 discusses when subsequent claims should be allowed in more detail.)
There would be the right to a single appeal in respect of the first instance decision that would assess the Refugee Convention, the Convention Against Torture and articles 6 and 7 of the ICCPR.
All legislative functions relating to refugee status determination at first instance and appeal would be extended to the determination of Convention Against Torture claims and articles 6 and 7 of the ICCPR, including cancellation functions.
If this option was adopted, further policy work would be required to determine what immigration status should be given to persons protected under the Convention Against Torture and the ICCPR. Legislative provisions (such as restrictions on applying for further permits or sponsoring family members to New Zealand) could be introduced to lend integrity to whatever status is decided upon, especially where such individuals face allegations of criminal wrongdoing themselves.
This approach would provide a clear process and specialist expertise for the determination of all obligations where there is a clear requirement not to return a person to particular human rights abuses, strengthening New Zealand's reputation as a good international citizen. It is similar to the approach taken in Canada and the UK and is strongly recommended by the United Nations Committee Against Torture.
This approach would create an efficient and robust approach to assessing distinct obligations that require similar information gathering and credibility assessments. It also provides for a strong safeguard for ensuring that absolute rights are protected and obligations discharged.
While this approach would require a more complex determination process than currently undertaken to determine refugee status alone, the facts relevant to Convention Against Torture and ICCPR determinations would already have been gathered by the decision-maker. The decision-maker would only need to undertake a single credibility assessment. This option would therefore reduce the risks of inconsistent and incorrect decision-making.
This approach could, however, be perceived as a significant shift in New Zealand's protection regime. It could be perceived as creating a legislative protection regime that is too broad and open to abuse, risking the good reputation of New Zealand's current refugee determination system.
An increase in spurious claims could occur regardless of legislation on this matter, given that these obligations already exist. For example, refugee status claims in New Zealand rose from an average of 10 prior to 1987 to 1,124 in 1991, but legislation was not introduced on refugee determination until 1999.
This approach would ensure that any increase in claims could be managed by bodies with appropriate expertise. As demonstrated by recent experience in refugee status determination, fast and fair handling of cases is the most effective disincentive against spurious claims.
While this option would create efficiencies in the long term, there could be medium to high initial establishment and transitional costs.
A person claims protection on arrival in New Zealand on the basis that there is a real chance that they would be tortured if returned to their home country.
Under the status quo - An indepth interview and significant research is undertaken regarding the person's personal circumstances and relevant country information. The person's circumstances are assessed according to the Refugee Convention. The person's claim is found to be credible but does not meet the Refugee Convention criteria and is declined. The person appeals to the Refugee Status Appeals Authority and again is declined. The person is not eligible to appeal to the Removal Review Authority because they have been in New Zealand unlawfully for more than 42 days. The person is located after living in New Zealand unlawfully for one year. Removal action is taken and the issue of torture is again raised in the context of a pre-removal departmental assessment and in an appeal to the Minister of Immigration. The person is eventually allowed to stay.
Under the proposal - On claiming protection, an indepth interview and significant research is undertaken regarding the person's personal circumstances and relevant country information. The person's circumstances are then assessed according to the Refugee Convention, the Convention Against Torture and the ICCPR. The person's claim is found to be credible and protection status is approved at first instance under the Convention Against Torture.
Two alternative options have been considered that are not considered optimal:
The first alternative would create extended delays in assessing a person's eligibility for protection. It would also require significant doubling-up in terms of information gathering and credibility assessments.
The second alternative is not optimal given the potential seriousness of the consequences of such claims. These instruments create an absolute obligation not to expel a person in certain circumstances and warrant a robust assessment with independent appeal rights.
14.2.1 Key question
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This subsection considers the legislative requirements needed to manage:
All claims for refugee status made in New Zealand must be determined in accordance with the Immigration Act. The Refugee Convention itself is not interpreted or redefined in the Act. Rather, refugee status officers and the Refugee Status Appeals Authority are required to act in a manner that is consistent with New Zealand's obligations under the Refugee Convention.
The Immigration 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. In practice, refugees selected offshore are treated in the same way as refugees recognised onshore.
New Zealand has established a robust onshore refugee status determination process:
Like all refugee status determination systems worldwide, New Zealand does face abuse by non-genuine claimants. New Zealand's responses to such abuse have been largely effective:
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 made clearer.
The UK's system is similar to New Zealand's status quo in that there are no provisions in the legislation to recognise refugees selected offshore.
Australia and Canada have codified the selection of offshore refugees in their legislation, although their practice is similar to New Zealand's. Canada relies on the UNHCR, other referral organisations and private sponsoring groups to identify and refer offshore refugees for resettlement. A visa officer then determines if the refugee qualifies for Canada's refugee resettlement programme. In some circumstances, refugees may apply directly to Citizenship and Immigration Canada. Australia also works closely with the UNHCR to identify refugees most in need of resettlement.
Two options are presented, including the status quo. Option B is likely to introduce greater clarity and transparency and is preferred.
Refugee status officers and the Refugee Status Appeals Authority would continue to be required to determine whether a person is a refugee within the meaning of the Refugee Convention, and to act in a manner consistent with the Refugee Convention in carrying out all their functions. All aspects of the Refugee Quota Programme would be left to operational policy.
The status quo has not caused any major problems in this area, although it could be clearer and more transparent.
Option B would retain the current provisions that require decision-makers to determine whether a person is a refugee within the meaning of the Refugee Convention, and to act in a manner consistent with the Refugee Convention in carrying out all their functions.
In addition, the legislation would:
This option retains the current provisions for incorporating the Refugee Convention into New Zealand law that are successful and well regarded. It would build on this solid foundation by clarifying the legal status of refugees selected offshore and brought into New Zealand as refugees.
This option would not create any operational differences to the status quo. It would, however, create legislation that was clearer, more transparent and more accessible. It would anchor New Zealand's commitment to resettlement as a durable solution and to international responsibility sharing. It would also create a clearer framework for cancellation in cases where status was obtained through fraud or misrepresentation.
Enabling New Zealand to control the recognition of refugees selected offshore could also allow New Zealand to enter into regional or global refugee resettlement programmes other than the current UNHCR programme. For example, this could enable New Zealand to work closely with like-minded countries in the future to address humanitarian crises in our own region.
14.2.2 Key question
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This subsection considers what powers decision-makers should have to allow them to establish the identity and credibility of a protection claimant, or a protected person where cancellation of status is being considered. It also considers what the appropriate offences should be to encourage compliance with these powers.
Decision-makers may determine a claim on the basis of the information, evidence and submissions provided by the claimant. The onus is clearly on the claimant to present their case (as case law on this matter has reiterated).
Refugee status officers also have the powers to require a claimant to produce information that a claimant and some third parties have in their possession or have access to. They may require them to provide fingerprints, for the purpose of confirming identity or nationality, and may require them to attend an interview. The Refugee Status Appeals Authority may seek information from any source and has the powers of a Commission of Inquiry. There are, however, no offences or penalties for not complying with such requests for information.
Requiring the onus of proof to rest on the claimant and empowering the Refugee Status Appeals Authority to require information from anybody both assist in creating robust, defendable decision-making processes. They provide important mechanisms for testing identity and credibility.
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.
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 claims for refugee status and can be highly relevant to investigating cancellation cases.
Refugee status officers can be hindered in their investigations by an inability to obtain information from other government departments. At present, refugee status officers must use the Official Information Act 1982 or the Privacy Act 1993 to request such information. As discussed in Section 10: Compliance and enforcement, occasionally departments 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).
The only negative consequence for a claimant of not complying with a decision-maker's request for information is the possibility of a decline decision. This is problematic in the context of:
This review presents an opportunity to consider whether additional obligations, powers, offences and penalties could be introduced to improve the integrity of the determination processes in these areas.
Australia's legislation allows decision-makers to request a claimant to make a statement to the effect that the information they have provided is true and to provide documentary evidence of their identity, nationality or citizenship. Depending on their response, a decision-maker may draw any reasonable inference unfavourable to the applicant's credibility. Legislation allows decision-makers to require fingerprints, height, weight, a photograph and a signature.
In the UK, asylum caseworkers do not have a legal power to request information from a claimant. As in New Zealand, the onus is on the claimant to provide information that will substantiate his or her claim for asylum. If the claimant fails to do so, the claim is likely to be refused on the ground that the claimant has not made a case for asylum.
The United States routinely fingerprints all refugee status claimants and their family members who are between the ages of 14 and 79. The fingerprints are sent to the Federal Bureau of Investigation for a background/security check.
For the reasons noted above, the status quo is not considered to be robust. The approach outlined below is preferred and should be considered alongside the options to extend the powers to require information set out in Subsection 10.1.2 and Section 11: The use of biometrics.
Decision-makers would continue to determine claims on the basis of the information, evidence and submissions provided by the claimant and would retain current powers to request information. The powers of any new roles created, such as protection officers, would be aligned.
The obligations of refugee/protection claimants would be clearly set out in legislation, and would largely parallel obligations on visa and permit applicants. These would include obligations to:
Legislation could require other government departments to provide information relating to a refugee claimant when requested by a refugee status or protection officer, or member of the Refugee Status Appeals Authority.
New offences (with corresponding penalties) would be created for:
This approach would work best with Option B in Subsection 10.1.2. Under that option, legislation would require other government departments to provide information relating to a person already recognised as a refugee if that person was under investigation for fraud.
This approach would signal that abuse of the protection regime is not tolerated in New Zealand and will have negative consequences. It would better maintain integrity in the immigration system.
The power to require information from other government departments would better ensure the integrity of the refugee status determination system. This could assist decision-makers in identifying fraud or misrepresentation. It would lower the instances of false claims being approved and thereby reduce the significant costs and difficulty of cancelling status. It would complement the powers to require information discussed in Section 10: Compliance and enforcement relating to information sharing.
In regard to the first two offences, prosecution could be pursued in clearly abusive cases to deter attempts to abuse New Zealand's protection system. The third offence relates to cancellation only and would introduce an incentive to comply where there is currently none.
This approach would signal that similar obligations under the Immigration Act have corresponding offences and penalties for non-compliance. The corresponding offence provisions in regard to immigration decision-making are used frequently. While they only form part of a system with integrity, they are considered to be a useful tool.
Numerous protection claims are made on the basis of false information by individuals from a country where there is clearly no risk of persecution. The intention of these individuals appears to be simply to delay their obligation to leave New Zealand. Refugee status is declined in all cases, but this fails to act as a disincentive, and individuals from this country continue to make false claims. Under the above proposal, prosecutions could be made for providing false information in support of a refugee or protection claim or appeal.
14.2.3 Key question
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This subsection considers in what circumstances a person should be able to make a subsequent claim for refugee status or broader protection, when an initial claim has been declined.
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:
Under the Immigration Act, a subsequent claim for refugee status may not currently 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.
New Zealand must uphold its obligations not to return a person to persecution and, at the same time, protect the refugee/protection determination system from abusive repeat claims. It is appropriate that a person may be able make a subsequent claim for protection, in some cases. It is quite possible that refugee status or a risk of being subjected to torture may arise after a person has been in New Zealand for some time.
It is also appropriate to establish a limit to subsequent claims (as the status quo does) 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 reduced these numbers significantly.
While the current jurisprudence allows subsequent claims to be lodged where personal circumstances have changed, the legislation could be interpreted differently in the future. On a purely literal interpretation of the provision, 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.
In addition, the way the legislation is framed means that subsequent claims must at least initially be treated as valid claims, no matter how spurious they are.
In Australia, legislation prevents people who have had a protection visa cancelled, or have applied for protection and failed, from making another claim. Australia only allows subsequent claims to be made at the discretion of the Minister for Immigration, where it is in the public interest.
In Canada, the Immigration and Refugee Board that makes decisions on refugee status claims will not consider an application by a claimant who has had a previous refugee protection claim rejected, a previous refugee protection claim determined to be ineligible or who had a previous refugee protection claim withdrawn or abandoned. The legislation provides for those who experience a genuine change in circumstances to make their case for a subsequent claim.
The UK accepts that conditions in the home country can change quickly and allows a person whose asylum application is declined to submit further representations. In some cases, further claims will not have a right of appeal.
Two options are presented, including the status quo. At this stage, there is no clear preference for Option A or Option B.
A subsequent claim for refugee status may only be considered where 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'.
The current legislation prevents abuse of the refugee status system by limiting when subsequent claims can be made. It may, however, prevent a genuine refugee from making a subsequent claim and put New Zealand in breach of its international obligations under the Refugee Convention.
Subsequent claims would be limited to those who could demonstrate that a significant change in circumstances had occurred that was material to the person's refugee or protection status, whether those changes were in the home country or changes in the person's personal situation. The precise wording of this provision would need to be carefully considered to ensure that it enabled New Zealand to meet its obligations, while not inviting endless rounds of spurious claims.
Further, legislation could limit appeals against subsequent claims to those 'with leave' of the Refugee Status Appeals Authority (or equivalent).
This option more appropriately captures the changes in circumstances that could lead to a genuine refugee or protection claim. It may not have any significant impact on numbers and would continue to allow subsequent claims to be turned around where there was no change in circumstances. This option would also ensure that a person did not automatically have a right to appeal against a subsequent claim.
It would be necessary from a public policy perspective that any amendment manages the risk of spurious claims. Risks of an increase in subsequent claims due to a perceived broadening of the criteria would need to be managed through careful drafting and careful management at an operational level. For example, refusing to accept spurious subsequent claims, and deciding others quickly, is likely to provide the greatest deterrent to abusing the system.
14.2.4 Key question
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This subsection considers whether legislative provisions should be introduced to allow for expedited procedures in cases of:
The current system provides for significant flexibility that allows each of these scenarios to be dealt with quickly and effectively:
A 'safe country of origin' is a country where a person is safe from persecution and should have no reason to claim international protection.
A 'safe third country' is a country which is not the person's country of origin, but another country where they have the right to enter and remain and where they would be safe from persecution and not in need of international protection.
As noted, the current system provides for significant flexibility that allows each of these scenarios to be dealt with quickly. In addition, individual determination ensures the highest standards of fairness, for which New Zealand has an excellent reputation internationally.
Refugee status officers and the Refugee Status Appeals Authority dealt with large flows of manifestly unfounded Thai claims in the late 1990s and early 2000s. This situation was managed by prioritising the claims and allowing for interviews by refugee status officers only. The quick turnaround minimised incentives to claim for the purpose of buying time in New Zealand and has helped reduce the flow of such claims to a minimum. At the same time, this process ensured that any genuine claims had the chance to be heard.
New Zealand experienced an assisted mass arrival in 2001, with the 131 refugee status claimants from the MV Tampa. Each claim was individually assessed and, where declined, appeal was allowed for. The MV Tampa claims were determined by a special project team and processed quickly.
New Zealand's experience has shown that individual decision-making is robust, can respond to mixed flows of illegal migrants or asylum seekers and allows credibility to be assessed in each case. Combined with administrative measures to expedite decision-making and low rates of asylum seeking, the current legislation allows New Zealand to maintain a rigorous determination system that is respected internationally. It provides for a system that allows for effective decision-making, efficient processes and fairness in the immigration system.
As discussed above, the current system is effective and efficient. Options for change similar to other practices around the world are not considered desirable.
Other countries have employed mechanisms such as creating lists of 'safe countries of origin' or 'safe third countries' to deal with manifestly unfounded flows of claims. Such policies are controversial, however, in that they move away from individual assessment, increasing the risk of contravening our international obligations, and can upset international relations with countries that may not be listed as safe. They are not recommended by the UNHCR.
Legislation could allow for group assessments in the event of a mass arrival, but this is unlikely to be in New Zealand's interests. Mass arrivals are likely to contain a mix of claimants - both credible and not credible. Mass approvals would be likely to approve some non-genuine refugees. Mass declines would be more difficult and would require a mechanism for individual challenge. It is likely this would remove any benefits of a group decline.
Options for change in this area are therefore not discussed any further.
14.2.5 Key question
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The Refugee Convention allows a person to be expelled in certain cases where the seriousness of their conduct is considered to outweigh their need for protection. This subsection discusses mechanisms for expelling persons in New Zealand who are already recognised as refugees or protected persons, or who are New Zealand residents liable for expulsion who raise a protection claim. (If a person is in New Zealand unlawfully, or on a temporary permit, and they raise a claim for protection, they should be diverted through the determination process discussed above.)
A person lawfully in New Zealand who is a refugee according to the Refugee Convention may only be expelled from New Zealand (to any country) on grounds of national security or public order (article 32.1). However, a refugee may only be returned to a place where their life or freedom may be threatened if:
In addition to the Refugee Convention obligations, a person may not in any circumstances be expelled to torture; arbitrary deprivation of life; or cruel, inhuman or degrading treatment or punishment.
The Immigration Act prohibits the removal or deportation of a person recognised as a refugee in New Zealand, unless articles 32.1 or 33.2 allow it. Other absolute obligations prohibiting removal (the Convention Against Torture and articles 6 and 7 of the ICCPR) are not set out in the legislation.
New Zealand's current approach does not attempt to re-interpret the Refugee Convention in regard to when a refugee may be expelled and therefore does not risk limiting or expanding Refugee Convention obligations.
Regardless of a person's need for protection, in some cases, there may be a serious risk to New Zealand if a person is allowed to stay. The legislation needs to be very clear on the process for assessing international obligations in the expulsion context to ensure that:
The requirements to assess our international obligations in the expulsion process are not clearly set out in legislation, particularly in regard to the Convention Against Torture and ICCPR. The requirement to assess articles 32.1 and 33.2 prior to removal or deportation of refugees is set out in the part of the Immigration Act dealing with refugee determinations, and is silent on process or the tests to be met. In the interests of clear and accessible legislation, this requirement could be set out alongside expulsion processes and could specify process and the tests to be met (including the relevant articles of the Convention Against Torture, ICCPR and Refugee Convention).
The legislation could also be transparent on when the international conventions allow expulsion to a third country where the person will not face persecution.
Those responsible for expulsion decisions, including the Deportation Review Tribunal, may not have the expertise in applying articles 32.1 and 33.2 of the Refugee Convention, or other relevant international obligations.
Australia has strict character requirements that are applied to all people who wish to travel to and/or remain in the country. Exceptions to the Refugee Convention, in the case of refugees regarded as a security concern or who have been convicted of a particularly serious crime, have been incorporated into law. This means that Australia has the provision to expel refugees that it considers a threat to the safety or security of the country, as provided for under the Refugee Convention.
As a signatory to the Refugee Convention, Canada does not return refugees to a country where they face persecution. Canada's legislation includes an exemption to the Refugee Convention in a similar manner to Australia's. Canada's legislation clearly sets out in which situations a refugee or protected person may be deported and the process for doing so.
In the US, refugee status may be terminated if the refugee has committed certain crimes or engaged in other activity that makes them ineligible to retain refugee status or to have that status renewed. Refugee status does not equate to permanent residency in the US and, along with cancellation due to character or security concerns, the US can cancel refugee status and remove a person if they are found to have adequate protection in another country.
For the reasons discussed above, the status quo is not considered to be optimal for the future. The approach outlined below is likely to meet the objectives of efficiency and understandable legislation and is preferred.
The new legislation would prohibit, in the part dealing with expulsion, the expulsion of a person:
The legislation would clarify in which situations expulsion to a third country may be a viable alternative. For example, persons protected under the Refugee Convention, the Convention Against Torture and articles 6 or 7 of the ICCPR may be expelled to a third country in certain circumstances.
In line with the option to streamline expulsion and appeal processes discussed in Section 6: Exclusion and expulsion and Section 7: Access to review and appeal, the assessment would be undertaken:
Mr A was granted refugee status. For the next three years, Mr A travelled frequently between New Zealand and several other countries trafficking drugs. He was eventually arrested in New Zealand and convicted with numerous offences. Mr A served a four-year prison sentence.
Under the proposed approach, Mr A was liable for expulsion and a permanent ban from New Zealand. Mr A had a single appeal to the new immigration and refugee tribunal against expulsion. The legislation gave clear guidelines as to what international obligations allowed and prevented expulsion. The tribunal assessed that the Refugee Convention allowed Mr A to be expelled from New Zealand and that there were no exceptional circumstances of a humanitarian nature.
This approach does not create new grounds for expulsion. Rather, it would clarify and create confidence that New Zealand can expel individuals in some serious cases, where international obligations allow. It would be clear that serious criminal offending by refugees is not tolerated.
This option establishes a clear legislative process for expelling refugees and clear rules about not expelling other protected persons where this is not permitted by the relevant convention. Expelling refugees back to a country where they may face persecution is a serious matter for the individual concerned. It is also one that is likely to generate significant attention nationally and internationally. The approach outlined above would uphold New Zealand's good reputation in this area, by ensuring that we have a clear process that meets our international obligations.
Combined with the option to create a single appeals authority, this option would ensure that experts in refugee and international human rights law were determining the required human rights considerations prior to expulsion. Combined with the option to establish a streamlined two-step process for expulsion (establishing liability once only, followed by a humanitarian appeal if appropriate), this option could create a more effective and efficient process, while maintaining fairness.
14.3 Key question
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This subsection considers the implications of becoming party to the 1954 Convention Relating to the Status of Stateless Persons (the Stateless Persons Convention).
In December 2003, Cabinet considered becoming party to the Stateless Persons Convention. It decided that New Zealand should not become party to the Stateless Persons Convention at that time, because it would require legislative and operational change that could have substantial costs, but invited the Minister of Immigration to consider becoming party in the review of the Immigration Act.
The Convention was explicitly adopted to ensure a minimum standard of protection for stateless persons who are not refugees and who are not covered by the Refugee Convention.
The rights given to a stateless person by the Convention include employment, housing, education, welfare, freedom of movement and religion, and access to the courts.
While there are differing interpretations of the Convention, it is considered that the New Zealand courts would be most likely to find that some standards of protection must apply to any stateless person, regardless of their immigration status.
According to the Stateless Persons Convention, a stateless person is someone 'not considered as a national by any state under the operation of its law'. At the end of 2004, the UNHCR estimated that there were 1.5 million stateless persons worldwide. This compares with an estimated 9.2 million refugees worldwide.
A common way that people become stateless is when the country they were born in changes. This happened to groups, for example, when the Soviet Union was disbanded and after the splitting up of the former Czechoslovakia and former Yugoslavia into smaller countries.
New Zealand is not party to the Stateless Persons Convention. In practice, if a stateless person arrives in New Zealand without any authorisation to enter, they are likely to apply for refugee status. In recent years, very low numbers of refugee status claimants have also claimed to be stateless. Some stateless persons are refugees and are granted refugee status.
Other stateless persons are not refugees, and there is no formal mechanism for protecting them in New Zealand. In these cases, the Minister of Immigration or an immigration officer may use their discretion to grant the person a permit to stay. Otherwise, the person would be liable for removal. It may be very difficult to remove a stateless person if there is no country that recognises them as a resident or citizen. The only alternative may be removing the person to the country where they boarded the flight to New Zealand.
Under the status quo, New Zealand has no specific obligations regarding stateless persons, although they may be protected under other international conventions that New Zealand is party to, such as the Refugee Convention. This may be considered acceptable because there are no groups of stateless people living in New Zealand. Where a stateless person comes to New Zealand and is unable to be removed, they are likely to be allowed to remain.
Not being party to the Stateless Persons Convention may be viewed as being potentially inconsistent with New Zealand's broader human rights policy and objectives to be a good international citizen. New Zealand has long been an advocate of universal human rights and the notion that everyone should be able to call upon a country to respect, protect and fulfil his or her rights. Such reasoning underpins our refugee policy and could extend to people who are genuinely stateless.
The UNCHR is clear that the Stateless Persons Convention is an important instrument to avoid and resolve situations of statelessness and further the protection of stateless persons. It encourages all countries to become party.
New Zealand faces a practical problem of how to deal with stateless persons who present themselves here and are not eligible for protection or any permit to stay. In practice, where a person cannot be returned to any country, they are likely to be granted a permit as an exception to policy (temporary or permanent, depending on the circumstances). There is an opportunity to question whether New Zealand wishes to formalise its response to such persons.
As at February 2006, 59 countries were party to the Stateless Persons Convention, including 13 of the 15 EU member countries. In comparison, 145 countries were party to the Refugee Convention. In light of the low take-up and continued problem of statelessness, in 1996 the General Assembly mandated the UNHCR to promote the avoidance and reduction of statelessness globally by becoming party to the Stateless Persons Convention.
Australia and the UK are both party to the Stateless Persons Convention. Australia is of the view that the Convention does not confer a general right on stateless persons to enter or remain in Australia unless the Refugee Convention applies. The UK is of the view that statelessness in itself confers no right to remain. A stateless person who did not qualify to remain in the UK on any other basis would be expected to return to their country of former habitual residence.
Canada is not party to the Stateless Persons Convention for three reasons:
Two options are presented, including the status quo. At this stage there is no preferred approach.
Under the status quo:
In practice, New Zealand is likely to grant protection to a stateless person because of the range of existing protections available. There is the possibility that, in some circumstances, a stateless person would not be eligible for protection in New Zealand and may be removed.
New Zealand's current practice is not in line with UNHCR's recommendations that countries become party to the Stateless Persons Convention and establish statelessness determination processes.
Under Option B, New Zealand would become party to the Stateless Persons Convention.
Where a person claims that they are stateless, legislation would provide for a determination to occur in the single procedure discussed earlier - alongside the determination of refugee status, the Convention Against Torture and the ICCPR. As discussed above, there would be a single right of appeal.
Where a person in New Zealand was found to be stateless, they would be given all of the rights as set out in the Stateless Persons Convention. To facilitate access to these rights, stateless persons would be granted a temporary or residence permit.
Immigration legislation would reflect the obligation under the Stateless Persons Convention not to expel a stateless person lawfully in New Zealand, unless allowed under the Convention. The Convention allows expulsion on the grounds of national security or public order, or where there were serious reasons for considering that the person had:
Becoming party to the Stateless Persons Convention would strengthen New Zealand's position as a country that supports efforts to maintain international human rights standards. It could help to address the practical dilemma of how to deal with stateless persons New Zealand cannot remove.
Option B includes a formal process to determine statelessness claims. This is in line with the UNHCR's view that a formal system should be established to determine statelessness.
There would be fewer costs in establishing this system, as a part of the broader changes to the protection system proposed earlier, than there were when government considered becoming party in 2003. Costs could increase, however, if the number of stateless persons coming to New Zealand was to increase and if there were attempts to test or abuse the system. An increase in numbers may be a risk, as other similar countries such as the UK, Australia and Canada have not established explicit statelessness determination procedures.
Similar concerns have been cited in Canada as reasons for non-ratification. A 2003 report written for UNHCR did, however, note that there is no evidence that an increase in statelessness claims resulted in other countries which have ratified it. The downward trend in illegal migration and asylum seeking may mean that such risks have lessened for the time being.
At this stage, there are likely to be minimal costs across government from allowing stateless persons access to education, health and other social services required by the Convention, because the numbers are so low. These costs would increase if the numbers of stateless persons coming to New Zealand were to grow.
14.4 Key question
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