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Dana Krause and Isabel Knott[*]
A comparison of the approaches of New Zealand and Australia in dealing with refugees and asylum seekers.
This article compares the refugee determination processes of New Zealand and Australia. It will become evident that in comparison to Australia’s refugee determination process, New Zealand’s refugee determination process has traditionally functioned at a higher level of compliance with international standards, demonstrating a more compassionate and sensitive approach to asylum-seekers and refugees. This culture of benevolence can be understood in view of New Zealand’s awareness of and dedication to human rights. What is unclear is whether the legal framework supporting this culture can withstand the pressure of increased people flows and current political influences — namely, the perception that global terrorist activities are intensifying in the wake of the events of 11 September 2001, and the attitudes of neighbouring countries, particularly Australia.
In contrast to New Zealand, Australia’s geographical position and accessibility has resulted in larger refugee flows. Any perceived ‘influx’ of foreigners plays on racist and xenophobic attitudes which have arguably been exacerbated by Australia’s sense of isolation as a lone European culture in the Asia-Pacific region.[1] In this context, it can be argued that Australian refugee law and policy proceeds from an essentially defensive and distrusting starting point. It will emerge from the following discussion that every stage of asylum-seekers’ Australian experience is marked by the assumption that they are not genuine refugees.
The xenophobia mentioned above has been amplified by the heightened awareness of terrorist activities that continues to pervade the global community. Fuelled by a strong sense of fear and uncertainty, the distinct issues of border control (national security; people smuggling), state sovereignty and the treatment of asylum-seekers and refugees have been conflated in the public sphere. The current government’s increasing reliance on this confusion has given added legitimacy to the demonisation of asylum-seekers as ‘illegals’.. The machinations of a changing international public order mean that the asylum-seekers of today are innocent victims caught in the middle of a global political struggle. These people constantly vacillate between the position of disempowered victims of repressive and violent regimes, and the position of voiceless objects of the Western world’s ‘war against terrorism’.
The New Zealand refugee system is liable to further change or modification in light of the current international political climate, and the intensified effort on behalf of Australia to achieve multilateral consensus on an approach towards asylum-seekers, border control and state sovereignty. As recently as the Tampa crisis — when in August 2001 Australian Prime Minister John Howard refused permission to enter Australian territorial waters to 438 asylum-seekers picked up at sea by the Norwegian vessel, the Tampa[2] — New Zealand displayed a compassionate, efficient and humanitarian response to the plight of asylum-seekers. However, early indicators of an attitudinal shift are the willingness with which New Zealand introduced anti-terror legislation, and its increased use of detention provisions as an ordinary (rather than an extra-ordinary) incidence of seeking asylum in New Zealand.[3] It remains to be seen whether New Zealand’s long standing adherence to international human rights laws and the implementation of the New Zealand’s Bill of Rights Act 1990 and Human Rights Act 1993 will protect against any attitudinal shifts and a changing governmental policy.
As a background to exploring each nation’s refugee and asylum-seeker policy we will briefly compare the similarities in terms of refugee flows relative to population size of New Zealand and Australia. According to United Nations High Commissioner for Refugees (UNHCR) statistics, over the period 1999–2001 New Zealand received 4794 new claims for asylum and Australia received 35,752 new claims for asylum. However the discrepancy is less striking when those figures are considered in relation to population size. New Zealand received 1.3 applications per 1000 inhabitants while Australia received 1.8 applications per 1000 inhabitants.[4] New Zealand Prime Minister Helen Clark is looking to increase New Zealand’s intake of refugees by about 250 during 2002. When combined with the current annual quota of accepting 750 refugees, this means the total numbers of refugees and their family members would approach 1000.[5]
In the international context, of the 10 countries that have a refugee resettlement program, New Zealand ranks in the top three for its per capita acceptance of refugees.[6] In contrast, Australia receives relatively small numbers internationally. Australia’s quota of refugees is currently 12,000. Yet on a per capita basis, the United States accepts 1:588, twice as many as Australia, which takes 1:1130. On a per capita basis, Australia is ranked 38th, slightly behind Kazakhstan, Guinea, Djibouti and Syria.[7]
The differences between the approaches taken by Australia and New Zealand to the treatment of asylum-seekers and refugees were highlighted by the Tampa incident. John Howard’s government has been determined not to allow a single asylum-seeker arriving by boat into Australia since turning away the 438 largely Afghan asylum-seekers on board the Tampa. The Tampa asylum-seekers then became the first subjects of Australia’s ‘Pacific Solution’, which consisted of the Navy forcibly transporting unauthorised boat arrivals to islands such as Nauru and Papua New Guinea to have their claims processed. This so-called ‘solution’ saw New Zealand accepting Australia’s asylum-seekers.[8] While they endured a gruelling and ‘rigorous’ determination process (deferring to security concerns), 130 out of 131 were approved as genuine refugees and have become a part of the New Zealand community.[9]
A striking element of New Zealand’s reaction to the Tampa crisis was the display of ‘public goodwill towards the acceptance of refugees and refugee claimants’.[10] Prime Minister Helen Clark sent a very clear message that the New Zealand government wanted to play a positive role. The Minister of Immigration, Lianne Dalziel, indicated that the government preferred to place the Tampa claimants in locations such as the Mangere Reception Centre rather than in penal institutions. The Minister further sought assurances that the security, safety and privacy of Tampa claimants were respected throughout the processing period.[11] While New Zealand processed the Tampa claimants with efficiency, humanity and dignity (and at little cost), Australia continued to perpetuate some of the common myths of asylum-seekers as queue-jumpers, terrorists and ‘illegals’. The Tampa incident demonstrates that it is possible to accord humanity and dignity to refugee claimants while simultaneously maintaining a high level of domestic security.
Following swiftly on the heels of the Tampa crisis, New Zealand has displayed a newfound willingness to follow Australia’s lead in targeting, and ideally repelling, asylum- seekers. This is manifest in recent specialised anti-people- smuggling legislation.[12]
The geographical position of New Zealand makes it more difficult for asylum-seekers to reach its shores, and accordingly New Zealand has not experienced the mass boat arrivals such as those seen in Australia. However, the New Zealand Ministry of Immigration has recently postulated that well- organised groups based in the South East Asian region could respond to increased Australian pressure by expanding operations to reach New Zealand as a viable alternative destination.[13] It is in response to such fears that the New Zealand Government drafted the Transnational Organised Crime Bill. The expedience with which this Bill was drafted and the breadth of content arguably points to an attitudinal shift on behalf of New Zealand policy makers and legislators.
Article 31 of the Refugee Convention states that ‘contracting states should not impose penalties on refugees for their ‘illegal’ entry’. Article 31 also requires that asylum-seekers be treated on the assumption that they may be refugees until their status has been determined.[14] The Article 31(2) prohibition on unnecessarily restricting the movements of refugees has been further refined in UNHCR Ex Comm Conclusion No.44 (XXXVII) with the result that detention of asylum-seekers may only be resorted to if ‘necessary’ only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order.[15] The United Nations High Commissioner for Refugees holds detention to be an inherently undesirable ‘permissible exception to the general rule’.[16]
It emerges that the Australian position fails to recognise the emphasis in international law on the very limited circumstances in which detention may be appropriate under the rubric of ‘necessity’.. The New Zealand system does make some attempt to discern those people for whom detention may be ‘necessary’ as opposed to the majority of asylum-seekers for whom detention is thoroughly inappropriate.
Although governmental policy regarding the use of detention in relation to asylum-seekers is currently undergoing change, New Zealand has traditionally acted in greater conformity with international legal norms — and with the intentions and spirit of the 1951 Refugee Convention — in terms of detaining asylum-seekers than has Australia.
The New Zealand system has generally allowed for asylum- seekers to reside in the community on what is known as a temporary permit during the processing period. Although this practice has altered significantly since 11 September 2001 (see below) the relevant provisions continue to demand greater accountability on behalf of the New Zealand government than the equivalent Australian legislation.
The New Zealand Immigration Act 1987, as amended by the 1999 Immigration Amendment Act, does not mandate the detention of asylum-seekers whilst their claims are processed. Rather, s.128 and 128B of the Immigration Act outline when detention is permitted, thus providing decision-makers with a discretion. The detention function under s.128(5) allows the detention of asylum-seekers for 28 days, pursuant to a warrant of commitment. Following changes in 1999, it has been much easier to extend the maximum detention period. This can be achieved by obtaining a renewal from a County Court judge, and it has been suggested that the judge does not have discretion to refuse renewal applications.[17]
Section 128B allows the New Zealand Immigration Service to detain people at the border if they are suspected of constituting a risk to national security and/or public order. However the New Zealand Immigration Service has declined to make use of s.128B in these circumstances, overlooking it in favour of s.128 because it is considered that s.128B requires officials to prove a ‘higher threshold’ of reasonable grounds.[18]
The New Zealand Immigration Service issues Operational Instructions to its officers about the interpretation of policy and the exercise of discretion. An operating instruction issued on 19 September 2001 stipulated that there ‘will be circumstances where the detention of a person who claims refugee status at the border is justified’.. Factors to be considered by an officer included issues of national security or public order and safety (in the light the prevailing security situation in New Zealand and globally), the ability to accurately and reliably ascertain the person’s identity and the apparent strength or weakness of their claim. Between October 1999 and 18 September 2001, less than 5% of the 595 people claiming refugee status on arrival in New Zealand had been detained (29 people). However following the change in policy, 94% of the 221 persons claiming refugee status in the period between 19 September 2001 and 31 January 2002 were detained (208 people).[19]
In a legal challenge brought by the Refugee Council of New Zealand and the Human Rights Foundation on behalf of those detained under the new policy, a single High Court Judge, Justice Baragwanath, held the detention policy to be unlawful.[20] Baragwanath J held that the discretionary power to detain was constrained by the test of ‘necessity’, as stated in Article 31(2) of the Refugee Convention (see further below). ‘Necessary’ was held to mean:[21]
The minimum required, on the facts as they appear to the immigration officer:
• To allow the Refugee Status Branch to be able to perform their functions
• To avoid real risk of criminal offending
• To avoid real risk of absconding.
His Honour went on to say:
… it is to be emphasised that the Refugee Status Branch is required by s129D ‘to act in a manner that is consistent with New Zealand’s obligations under the Refugee Convention’.. It would therefore be unusual that detention, which by Article 31.2 must be limited to what is ‘necessary’, could be ‘necessary’ to facilitate the work of the Refugee Status Branch.[22]
His Honour cited experts’ opinions that detention simply for the ‘convenience’ of the authorities would be unlikely to meet the necessity test,[23] and further that while difficulty or delay in ascertaining identity was a relevant factor in the exercise of discretion, it could not be decisive of it.[24] The policy was unlawful as its terms did not meet the necessity test.[25]
The New Zealand provisions sharply contrast with the Australian practice of mandatory detention of asylum-seekers.. The power to detain is contained in s.189 of Australia’s Migration Act 1958, which provides that if an officer knows or reasonably suspects that a person is an unlawful non- citizen (defined in s.14 as a non-citizen without a valid visa), the officer must detain the person. Section 196 provides that unlawful non-citizens must be kept in immigration detention until they are removed from Australia, deported or granted a visa. The current understanding in Australia, that detention is necessary for all asylum-seekers who arrive in an unauthorised manner, does not seem to stand up to Justice Baragwanath’s analysis of ‘necessity’ discussed above and in turn falls short of the intention and spirit of the Refugee Convention.
The mandatory detention of asylum-seekers also raises issues relating to the Australian Constitution. The Constitution provides for Parliament to make laws with respect to aliens. As discussed earlier, s.186 of the Migration Act 1958 authorises the detention of non-citizens. However, In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, the High Court identified the limits to the nature of detention that Parliament can validly authorise for migration control purposes. The High court distinguished between punitive and non-punitive detention, holding that ‘administrative’ detention of unauthorised arrivals was not punitive. However, the Court noted that administrative detention may become punitive if not ‘limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable the application for an entry permit to be made and considered’.[26] Punishment is normally an aspect of the judicial function. The separation of powers maintains that legislative and executive powers cannot infringe on the powers of the judiciary. Thus, if the Migration Act provides for the imposition of punitive detention, then the Act would infringe on the separation of the judicial power of the Commonwealth and would be unconstitutional. This issue will be revisited as Melbourne barristers Julian Burnside QC and John Manetta are defending five Iranians who have been charged with escaping lawful detention. They are challenging the policy of mandatory detention by arguing that these five men did not escape ‘lawful’ detention. Their detention was punitive, exceeding the limits of administrative detention and was therefore unconstitutional.[27]
A significant difference between the detention of asylum- seekers in Australia and New Zealand relates to the conditions in detention centres. Asylum-seekers in New Zealand are primarily held in the Mangere Reception Centre and placing asylum-seekers in penal institutions is regarded as a last resort.[28] It has been common practice for detainees to be granted day leave while located at the Mangere Centre.[29] Further, UNHCR officials who have inspected the Mangere Centre raised no concerns as to the conditions within the Centre.[30]
Such measures are far removed from the Australian arrangement whereby asylum-seekers are detained in harsh, often remote and prison-like conditions. Not only are asylum-seekers denied day leave, but any contact between asylum-seekers and the Australian community is severely restricted[31]. Instances of mental health disturbances are widespread[32] and have caused alarm amongst sectors of the community.[33] The conditions inside the Australian detention facilities attracted criticism in a report prepared by UNHCR envoy, Prafullachandra Natwarlal Bhagwati, in July 2002 in which he described the conditions of detention as ‘in many ways inhuman and degrading’.[34]
Both New Zealand and Australia have ratified the 1951 Refugee Convention and the 1967 Protocol — the principal international instruments protecting refugees.[35] The manner in which each nation’s domestic legal arrangements seek to give meaning to obligations incurred in the international legal sphere evidence disparate cultural approaches towards asylum-seekers and refugees. Notwithstanding ratification, the dualistic nature of the Australian and New Zealand legal systems necessitates specific enactment by the legislature before international treaty obligations will be cognisable in domestic legal proceedings. In terms of practical operation, the Australian processing system seeks to give minimum content to its international obligations relating to the protection of asylum-seekers. Conversely, New Zealand remains truer to the spirit of the 1951 Convention.
In New Zealand, the Convention and the Protocol have been annexed to the Immigration Act 1987 as amended by the Immigration Amendment Act 1999 in the form of the Sixth Schedule (s.129D(2)). There has been no express incorporation of the terms of the instruments into New Zealand domestic law. It is arguable that the text of the two instruments has been annexed for information purposes only — rather than to achieve the enactment of the treaty texts. In any event, the provision contained in s.129D requires that Refugee Status Officers and the Refugee Status Appeal Authority ‘act in a manner that is consistent with New Zealand’s obligations under the Refugee Convention’.. This encourages the New Zealand authorities to approach the definition of refugee with a strong awareness of relevant international jurisprudence. Accordingly, New Zealand case law explicitly recognises the breadth of the international law notion of ‘persecution’, rather than attempting to restrict its meaning through articulating restrictive or facts-based criteria.[36] New Zealand lawyers — in particular immigration specialist, Rodger Haines QC — actively promote a generous reading of the Convention and an interpretation according to the spirit in which it was intended.
In contrast to New Zealand, s.36 of the Australian Migration Act 1958 essentially incorporates Article 1(A)(2) of the Convention Protocol into Australian domestic law:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Regardless of this fact, the trend has been to distance the Australian interpretation of refugee from the formulation of the international standard. For example, legislation was enacted in September 2001 to introduce ss.91R through 91U into the Act in order to limit the interpretation of persecution within Australian domestic law. In this way, the Australian refugee determination system operates under a highly restricted and centrally controlled definition of persecution. Further, the Australian legislation does not incorporate any other provision of the Convention text, nor does it contain a provision similar to the New Zealand s.129D ensuring that international standards permeate domestic decision making..
Refugee determination process
Refugee determination processes have been established in New Zealand and Australia to facilitate the application in domestic law of the 1951 Convention and the 1967 Protocol. Department officials, review bodies and the courts must determine refugee status in accordance with these international instruments. At this stage the way in which Australia and New Zealand process asylum claims and how this can affect the success of an asylum claim will be examined. The following discussion ought to be considered in light of the effect of the following factors on the likelihood of success of an asylum claim:
• the breadth with which the Convention is read; and
• the system that has been established to facilitate application of the Convention.
In New Zealand, once asylum-seekers are approved as refugees they apply for and are granted permanent residence. In contrast, applicants in Australia may only be granted permanent residence if they arrive with legitimate ‘papers’, that is passports and travel documents which are not bogus. However, the Department and the Refugee Review Tribunal often use lawful entry to Australia as evidence that asylum-seekers must not have been of adverse interest to the country of persecution if they were granted a passport and permission to leave.[37] Yet with false or no documentation, successful refugee claimants will only receive Temporary Protection Visas. Holders of Temporary Protection Visas are entitled only to very limited rights. Holders of Temporary Protection Visas are granted permission to work, but they are not entitled to access government-funded English tuition, housing subsidies, education subsidies, employment programs or other settlement assistance.[38]
Previously, the formal procedures for determining refugee status in New Zealand were incorporated into the legislation as terms of reference. The unusual aspect of this arrangement was that New Zealand honoured its international obligations under the Refugee Convention at the domestic level by way of an extra-statutory system regulated entirely by executive decrees. [39]Legislative reform was eventually carried out with the enactment of the Immigration Act 1999. Section 40 of this Act inserted a new Part VIA into the Immigration Act 1987 and thereby placed the Refugee Determination Procedures on a statutory footing.
The determination process continues to comprise two tiers. A refugee status branch officer of the New Zealand Immigration Service takes the first instance decision.[40]From this decision there is a right of appeal to the Refugee Status Appeals Authority (RSAA). Judicial review is available on matters of law to the High Court and the Court of Appeal.[41]
Prior to the 1980s, Australia processed refugee applications through an extra-statutory system comprising semi- independent committees, regulated entirely by executive decrees — similarly to New Zealand. However, over the 1990s the Immigration Department developed a more comprehensive refugee processing system in response to the growing number of asylum-seekers.[42] This system comprises initial decision-making by Department of Immigration officials, access to merits review by an independent Refugee Review Tribunal (RRT), and judicial review on matters of law to the Federal Court and High Court.
In the case of detained asylum-seekers, decisions made by the officers of the Refugee Status Branch are usually made within a couple of days.[43] In a somewhat compassionate tone, s.114Q of the Act emphasises that immigration officers should give due consideration to claimants as they may be tired, disorientated, distressed and incapable of communicating in English. If asylum-seekers are not in detention, decisions are generally made within four months of the interview. The interviewing officer is also the determining officer and each file undergoes a quality control check by another officer. However, credibility (not believing the claims of asylum- seekers) is a major reason that appeals proceed to the RSAA level.[44]
In contrast to the efficient functioning of the New Zealand system, the initial determination made by Australian Department officials is often conducted over several months and several interviews. For those asylum-seekers held in immigration detention, this drawn-out process makes their detention prolonged and arduous. There are numerous instances of people waiting up to 12 months for an initial decision from the Department.[45] There are also numerous accounts of asylum-seekers being told to be brief and to the point at the initial interview. Important facts are often not provided at the initial interview, and when they arise at a later stage they create the appearance of inconsistency and a lack of credibility.[46]
The RSAA is an independent body staffed by practising or recently retired lawyers drawn entirely from outside the government. As a consequence of legislative reform, the RSAA now has the powers of a Commission of Inquiry.[47] The decision of the RSAA is final, subject only to review as set out in s.129Q(5) of the Immigration Act 1987.. Appeals may be brought to the RSAA on points of law or fact, and are conducted by way of de novo hearing.
The approach of the RSAA appears to be sensitive to the plight of asylum-seekers. The RSAA pays particular attention to issues of substantive refugee law on the basis that the definition is drawn from the Refugee Convention and is not to be seen as a New Zealand formulation.[48]
The RSAA is not completely independent of the Minister and the Department. The independence of the RSAA is compromised as the RSAA is funded and administered by the same Department on which it sits in judgment. The appointment of members of the RSAA for limited terms is also unsatisfactory as the Minister of Immigration is directly involved in the appointment process.
The Australian Refugee Review Tribunal (RRT) similarly conducts de novo inquisitorial hearings — known as external merits review. However, in contrast to the New Zealand position, RRT members derive from a variety of different backgrounds. The membership includes experience in working for the UNHCR, former migration agents and advisers, employment with Department of Foreign Affairs and Trade (DFAT), employment within the ethnic community, journalism, and from refugee advisory organisations. Some may be legally qualified. At this juncture, it is important to note that the absence of legal qualification as a pre-requisite for Tribunal members may adversely affect the quality of the Tribunal’s decision making.
Similar to the RSAA, the RRT is not completely independent of the Minister and the Department. Administrative tribunals essentially form part of the executive arm of government and the Governor-General, on the recommendation of Cabinet, appoints members. Appointment is for a period not exceeding five years, with the possibility of reappointment. The Principal Member makes recommendations to the Minister as to re-appointments based on annual member appraisals. In the Australian Law Reform Commission (ALRC) report of January 2000, it is written that the ‘Review tribunals have an important, complex and ongoing relationship with government agencies whose decisions they review’.[49] It is notable in this regard that Muin v Refugee Review Tribunal the High Court held that the RRT had failed to provide natural justice in determining the cases of two asylum-seekers.[50]
Since the introduction of Part 8 of the Migration Act 1958 in 1994, asylum-seekers have found their cases frequently rejected on the grounds that decision-makers are not satisfied of the veracity of the claims put forward.[51] This is because Part 8 ousted natural justice and unreasonableness as grounds for judicial review, making it virtually impossible to challenge decisions. Further amendments to Part 8,[52] namely the introduction of the privative clause, have sought to remove all grounds of review save for a failure to exercise jurisdiction in good faith. This has the effect that notwithstanding the presence of legal error, the decision of the Tribunal is protected from review. The Tribunal can commit a legal error which under old regime would have been reviewable but is now beyond the reach of judicial scrutiny. Interpretation of the privative clause will be settled in two matters currently reserved before the High Court of Australia in S134/2002 and S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[53]
Although judicial review can be made to the High Court or the Court of Appeal, few decisions of the RSAA have proceeded to be heard by either the High Court or the Court of Appeal. Further, only a small percentage of these cases have raised issues of substantive refugee law. Rather, most judicial review proceedings have focused on procedural and fairness issues. Rodger Haines QC concedes that the expertise and competence displayed by the RSAA largely explains the paucity of applications for judicial review of their decisions.[54]
The situation is vastly different in Australia, where in the past significant numbers of rejections at the RRT level forced numerous refugee claimants to appeal to the Federal Court and High Court on issues of substantive law. In this context, Australia has witnessed the Federal Parliament exert considerable control over the interpretation of legislation.[55] Particular note should be taken of the recent amendments to the Migration Act which arguably severely curtail the rights of asylum-seekers, leaving virtually no grounds for judicial review.[56] The continuing rejections of refugee applications are no longer subject to review by the courts. Ultimately, legislation modifications have resulted in the gradual concentration of power in the Tribunal and the Minister. It is argued that the placing of conscious and deliberate restrictions on judicial review strongly illustrates a current environment of overt hostility to asylum-seekers within Australia.
If an asylum-seeker has exhausted all appeal mechanisms and has still not been granted refugee status, he or she can apply to the Removal Review Authority under s.118 of the Immigration Act 1997. The Removal Review Authority will decide whether a recommendation should be made to the Minister to grant residence or not. If they refuse to make a recommendation, the asylum-seeker can apply directly to the Minister on humanitarian grounds.
The final step in the process of seeking asylum within Australia is also a request to the Minister, under s.417. Requests can be made in ‘compassionate and compelling circumstances’ to substitute a more favourable decision in the public interest.[57]
The special position of refugees and refugee claimants has been recognised by the extension of legal aid to first instance hearings before refugee status officers.[58] Legal aid is also available for any judicial review proceedings in respect of proceedings or matters arising out of decisions of refugee status officers or the RSAA.[59]
Unlike New Zealand, Australia has sought not to rely on a generalised scheme to provide legal assistance to asylum- seekers. Rather, the Immigration Application Advice and Assistance Scheme (IAAAS) is the only Commonwealth government-funded scheme for the provision of legal assistance to asylum-seekers. Application assistance is provided to eligible applicants to prepare, lodge and present applications for visas. However, immigration law specialist Erskine Rodan states that the IAAAS scheme ‘does not pay Migration agents to attend Tribunal hearings, so many do not attend.’ Further, IAAAS application assistance expressly does not include assistance with applications for judicial review through the courts.[60]
Conflicts of interest in the administration of the IAAAS compromise the advice given to prospective applicants. Firstly, the Department of the Minister who is responsible for assessing the application pays fees to contractors. Secondly, confidentiality obligations are placed on contractors to prevent advisers from publicly expressing their concerns about conditions in immigration reception and processing centres. Failure to comply with this obligation has led to termination of employment of at least one employee of an IAAAS contractor.[61]
The refugee determination processes of New Zealand and Australia are distinguishable on several grounds. Primarily, the New Zealand system operates in greater conformity with the relevant international legal standards and formulations, whereas the Australian system seeks to limit the direct incursion of international legal obligations into the domestic sphere. This is particularly evident in terms of the definitions of ‘refugee’ and ‘persecution’ adopted in New Zealand and Australia. The Australian refugee determination system is buffeted by domestic political imperatives. Conversely, the dedication of New Zealand to recognition of human rights permeates the refugee determination system, ensuring that a higher degree of dignity and humanity is accorded to those asylum-seekers who have found themselves on its shores. The Tampa crisis exemplified the differences in New Zealand and Australia’s treatment of the issue of asylum-seekers. Recent indicators of changing governmental and popular attitudes to asylum-seekers in New Zealand have manifested themselves in the increased reliance on detention provisions, and the drafting of anti-terror and people-smuggling legislation. In this respect, the role of the New Zealand High Court in defining the parameters of legitimate detention suggests the potential for the New Zealand system to withstand current pressures. Whether calls by the New Zealand judiciary to adhere to the Bill of Rights and International law, will influence government policy, remains to be seen.
[*] Dana Krause is an articled clerk at Erskine Rodan & Associates in VictoriaIsabel Knott is a Monash University law student. This article arose out of a research paper prepared by Dana Krause in 2002 under the supervision of Associate Professor Susan Kneebone, Castan Centre of Human Rights Law, Faculty of Law, Monash University. It would not have been possible without the assistance of Nicola Paton.email (Dana Krause): danush17@yahoo.comemail (Isabel Knott): blemmie@hotmail.com© 2002 Dana Krause and Isabel Knott
[1] Millbank, ‘The Problem with the 1951 Refugee Convention’, Parliament of Australia, Parliamentary Library, Research Paper 5, 2000-2001.
[2] Crock, M., ‘The Refugee Convention at 50: Mid-Life Crisis or Inadequacy?: Some Comments on the Processing of Refugee Claims in Australia,’ 2001 Quebec Journal of International Law 4.
[3] Chief Operating Officer of the New Zealand Immigration Service, Mr Lockhart, described the Operational Instructions relating to policy on detention as of 19 September 2001 as recognising the ‘increased risk to national security from trans-border movements following the terrorist events of 11 September 2001’, Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney-General (No 1) [2002] NZAR 717, [76].
[4] Donald, ‘We Don’t Know How Lucky We Are, Mate: Australia and New Zealand Refugee Law — A Comparison’, 2002 <www. refugee.org.nz/lucky.html> p.2.
[5] UNHCR, ‘New Zealand: Refugees’ first year cost $34m’, UNHCR World News, 30 January 2002, <http://www.unhcr.ch> , p.1.
[6] UNHCR, above, ref 5, p.1.
[7] ‘Just Comment: Debunking More Myths About Asylum Seekers’, Joint Publication of Edmund Rice Centre for Justice and Community Education and The School of Education, Australian Catholic University, Special Edition No 2, October 2002.
[8] ‘New Zealand and Nauru will take refugees’, Reuters Globe and Mail, 1 September 2001 cited in Crock, above, ref 2, p.8.
[9] UNHCR, ‘Afghan refugees arrive in New Zealand after epic voyage’, UNHCR World News, 26 September 2001 <http://www.unhcr.ch> p.1.
[10] Telephone interview with Marc Tarrant, Associate at Cairns Lane in Auckland, 23 April 2002.
[11] Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney- General (No 1) [2002] NZAR 717, [80].
[12] The Transnational Organised Crime Legislation was designed to enable New Zealand to meet its obligations under and ratify the United Nations Convention Against Transnational Organised Crime and its Protocols relating to the people smuggling of migrants and trafficking of persons, Ref NZ News, 25 February 2002 <www. refugee.org.nz/news.htm#>; Ref NZ News, 17 June 2002 <http://www.refugee.org.nz/news.htm#> .
[13] UNHCR, ‘New Zealand passes law to deter people smuggling’, UNHCR World News, 12 June 2002 <www.unhcr.ch>.
[14] ‘Fair and expeditious asylum procedures’, UNHCR World News, November 1994, cited in Dunstan, ‘United Kingdom Breaches of Article 31 of the 1951 Refugee Convention’ (1998) 10 IJRL 205 at 213.
[15] ‘Detention of Refugees and Asylum-Seekers’, UNHCR Executive Committee Conclusion No. 44 (XXXVII) — 1986 <www.unhcr.ch>.
[16] ‘UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers Guidelines on Detention’, February 1999, Guideline 3, <www.unhcr.ch>.
[17] Donald, above, ref 4, p.2.
[18] Refugee Council notes of meetings with New Zealand Immigration Service officials 5 November 2001, cited in ‘Freedom’s Ramparts on the Sea’: The Detention of Asylum-Seekers in New Zealand, Human Rights Foundation of Aotearoa New Zealand and Refugee Council of New Zealand Inc, May 2002, <http://www.humanrights.co.nz/docs/ Freedoms_Ramparts.doc> , p.5.
[19] Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney-General (No 1) [2002] NZAR 717 (hereafter Refugee Council and others v AG (No 1).
[20] Refugee Council and others v AG (No 1); Refugee Council of New Zealand Inc & The Human Rights Foundation of Aotearoa New Zealand Incorporation and ‘D’ v The Attorney-General (No 2) [2002] NZAR 717 (hereafter Refugee Council and others v AG (No 2).
[21] Refugee Council and others v AG (No 2) at [125].
[22] Refugee Council and others v AG (No 2) at [126].
[23] Refugee Council and others v AG (No 2) at [128].
[24] Refugee Council and others v AG (No 1) at [31].
[25] The Minister has appealed this decision.
[26] See (1992) 176 CLR 1 at 10 per Mason CJ, 30-32 per Brennan, Deane and Dawson JJ, and at 45-46 per Toohey J), cited in Kids In Detention Story (KIDS), 2002, Submission to Human Rights and Equal Opportunity Commission’s National Inquiry into Children in Immigration Detention, p.73, unpublished <www.julianburnside.com>.
[27] Speech given by Julian Burnside QC at a conference at a refugee law seminar hosted by Law Institute entitled; ‘Seeking Justice for Refugees: Judicial Review, Natural Justice and Unlawful Detention’.
[28] Between October 2001 and April 2002, over 100 people had been detained: 25 in the Auckland Central Remand Prison; 101 at the Mangere Reception Centre, ‘Freedom’s Ramparts on the Sea’: The Detention of Asylum-Seekers in New Zealand, Human Rights Foundation of Aotearoa New Zealand and Refugee Council of New Zealand Inc, May 2002, <http://www.humanrights.co.nz/docs/ Freedoms_Ramparts.doc> p.6.
[29] Telephone interview with Marc Tarrant, Associate at Cairns Lane, Auckland, 23 April 2002.
[30] Refugee Council and others v AG (No 1) at [78], above, ref 19.
[31] The author, Dana Krause, has provided social support to detainees in the Maribyrnong Detention Centre since 1999 and, since January 2002, has had regular contact with detainees who have been held in the Woomera Detention Centre.
[32] KIDS, above, ref 26, Mental Health Section, pp.1-28.
[33] The Human Rights and Equal Opportunity Commission launched a public inquiry in 2002 into the conditions of detention focusing specifically on the impact of detention on children.
[34] World News, The Associated Press, ‘Australia says UN report on treatment of asylum-seekers is biased’, <http://www.unhcr. ch/cgi-bin/texis/vtx/home/+dwwBneExQ58> , 1 August 2002.
[35] New Zealand acceded to the Refugee Convention on 30 June 1960 and to the Protocol on 6 August 1973. Australia acceded to the Convention in 1954 and to the Protocol in 1973.
[36] See for example Refugee Appeal 71427/99 [2000] NZAR 545; [2000] INLR 608 at [51] cited in Donald, above, ref 4, p.5. In this case the Authority stated: ‘Refugee law ought to concern itself with actions which deny human dignity in any key way and that the core norms of international human rights law are relied on to define forms of serious harm within the scope of persecution’.. The Authority further stated that ‘the determination whether the treatment feared in any particular case amounts to persecution will involve normative judgments going beyond mere fact finding’.
[37] See for example RRT Reference V98/09351 (11 July 2001) and N00/33005 (25 May 2001), <www.austlii.edu.au>.
[38] Telephone interview with Nazra Ibrahim a social support worker with Temporary Protection Visa holders, Melbourne, 13 August 2001.
[39] Haines, ‘An Overview of Refugee Law in New Zealand: Background and Current Issues’, paper given at Inaugural Meeting International Association of Refugee Law Judges (IARLJ) Australia/New Zealand Chapter, 10 March 2000, <http://www.refugee.org.nz/IARLJ3-00Haines. html> , [4].
[40] Immigration Act 1987, s.129E to 129M.
[41] The Court of Appeal discusses the jurisdiction to conduct judicial review of RSAA decisions in Butler v Attorney-General [1999] NZAR 205.
[42] Kneebone, ‘The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?’, (1998) 5 Australian Journal of Administrative Law 80-1.
[43] Telephone interview with Steven Columbus, former Refugee Status Branch Officer, Melbourne, 3 March 2002.
[44] Telephone interview with Marc Tarrant, Associate at Cairns Lane, Auckland, 23 April 2002
[45] Female asylum-seeker with three young children currently in Maribyrnong Immigration Detention Centre. Unaccompanied minor in Woomera Immigration Detention Centre.
[46] The author, Dana Krause, has been working as a social support worker at the Maribyrnong Immigration Detention Centre since 1999 and is in regular contact with asylum seekers from the Woomera Detention Centre.
[47] Immigration Act 1987, s.129N(1) and Schedule 3C, para 7.
[48] Haines, above, ref 39.
[49] ‘Managing Justice: A Review of the Federal Civil Justice System’, Australian Law Reform Commission Report No 89 of January 2000, paras 2.216–2.218.
[50] In Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, it was held that the Tribunal had failed to afford the applicants natural justice because they had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.
[51] In September 1994, Part 8 of the Migration Act 1958 was introduced. It purported to create an exclusive regime for judicial review of administrative action under the Act and limited the available grounds of review by excluding those such as breach of the rules of natural justice and unreasonableness.
[52] Migration Legislation Amendment (Judicial Review) Act 2001(Cth), commenced 2 October 2001. Section 474 is contained in Part 8 of the Act headed ‘Judicial Review’.
[53] Re Minister for Immigration and Multicultural and Indigenous Affairs Ex Parte S134 of 2002 and S157 of 2002 v Commonwealth (3 and 4 September 2002).
[54] Haines, ‘Winning Refugee Cases: Recent Case Law’, Auckland District Law Society Seminar, 26 February 2001, <http://www. refugee.org.nz/ADLS2.htm> (entire speech).
[55] See for example Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
[56] Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), entered into force 2 October 2001.
[57] MSI (Migration Series Instruction) 225: ‘Ministerial Guidelines For The Identification Of Unique Or Exceptional Cases Where It May Be In The Public Interest To Substitute A More Favourable Decision Under ss.345, 351, 391, 417, 454 of the Migration Act 1958’ Instructions in this Migration Series (MSIs) relate to: the Migration Act 1958; the Migration Regulations and other related legislation (as amended from time to time).
[58] Legal Services Act 1991, s.19(1)(ja) as amended by Immigration Amendment Act 1999, s.64(1).
[59] Legal Services Act 1991, s.19(1)(jb) as amended by Immigration Amendment Act 1999, s.64(1).
[60] KIDS, above, ref 26, Legal Section, p.56.
[61] KIDS, above, ref 26, p.57.
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