REGULATORY IMPACT STATEMENT – IMMIGRATION ACT: protection

Statement of the Public Policy Objective

To ensure compliance with international obligations while establishing fair, fast and firm decision-making processes that are transparent and easy to use.

Statement of Feasible Options

A single protection determination procedure

Policy Problem and Magnitude: Under the United Nations Convention Relating to the Status of Refugees (Refugee Convention), New Zealand must not, except in limited circumstances relating to national security and public safety, expel or return a refugee to any other country or border where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. Article 3 of the Convention Against Torture (CAT) prohibits New Zealand from returning 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 6 of the International Covenant on Civil and Political Rights (ICCPR) requires that no one shall be arbitrary 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. These obligations are also reflected in sections 8 and 9 of the New Zealand Bill of Rights Act 1990 (BORA).1

Only New Zealand’s obligations under the Refugee Convention are set out in the Immigration Act 1987 (the 1987 Act). This means that similar international obligations, in particular the CAT and the ICCPR, that warrant equally rigorous assessment, are considered administratively or in the context of a general humanitarian appeal. Multiple decision-makers, who are not necessarily protection specialists, may consider the same facts, which risks inconsistent and incorrect decision-making, and significant delays. No statistics are kept on the numbers of CAT or ICCPR claims that are considered administratively or within humanitarian appeals, but the numbers are very low.

Status Quo: Key features of the current system are:

1. The legislation sets out the determination procedure for claims under the Refugee Convention only.
2. CAT and ICCPR claims are dealt with administratively or in the context of generic humanitarian appeals.
3. New Zealand residents may not claim refugee status through the legislative procedure (but New Zealand must still uphold its obligations under the Refugee Convention in regard to residents).
4. Refugee status officers must use the Official Information Act 1982 or Privacy Act 1993 to request information from other government departments relating to refugee status claims.
5. Subsequent claims for refugee status are heard only if circumstances in the claimant’s home country have changed significantly.
6. Confidentiality of claimants is required for parties to the decision on the claim only.
7. Refugees under the Refugee Convention are explicitly covered in the 1987 Act, but United Nations High Commissioner for Refugees (UNHCR)-mandated refugees that New Zealand resettles are not explicitly covered.

The status quo is not preferred because it risks inconsistent and inaccurate decision-making, and does not allow for appeal of CAT or ICCPR claims.

Alternative Options: The Bill would establish separate determination procedures for protection claims under the Refugee Convention, CAT, and ICCPR. This alternative is not preferred because it would require multiple decision-makers assessing the same facts and would thereby be inefficient and risk inconsistent decision-making and lengthy delays in New Zealand’s ability to deport non-genuine and abusive claimants.

The discussion paper presented an option to increase obligations on protection claimants and penalties for fraudulent claims. In light of significant submissions against these proposals and further analysis these proposals are no longer considered to be required to maintain the integrity of the protection system.

Preferred Option: A single determination procedure for assessing all core international obligations
The Bill would set out and clarify New Zealand’s core obligations to protect persons under the Refugee Convention, the CAT and the ICCPR. The Bill would:

1. set out New Zealand’s existing obligations to assess claims to protection under the Refugee Convention, article 3 of the CAT, articles 6 and 7 of the ICCPR , in a single determination procedure, with a single right of appeal
2. set out that a person is in need of protection if:
1. they are a refugee within the meaning of the Refugee Convention
2. as a result of deportation it is more likely than not that the person would be personally subjected to torture within the meaning of the CAT, or
3. as a result of deportation it is more likely than not that the person would personally subjected to arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment if:

1. the person is unable or, because of the risk, unwilling to avail themselves of the protection of their country of nationality or former habitual residence
2. the risk would be faced by the person in every part of their country and is not faced generally by other individuals in or from that country
3. the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
4. the risk is not caused by the inability of that country to provide adequate health or medical care.

3. clarify when refugees may be deported and how international obligations that prohibit deportation are to be taken into account
4. allow residents to make protection claims only if they become liable for deportation
5. authorise other departments to comply with requests from the Department of Labour for information relating to protection claims or on possible fraud relating to those claims
6. allow further claims to be made only where there has been a significant change in circumstances material to protection status, that was not generated by the claimant, but no further claims where manifestly unfounded, clearly abusive or simply repeated
7. require confidentiality regarding a protection claim to be maintained by all parties, including the media, with limited exceptions, and
8. allow for refugees to be selected offshore and brought to New Zealand and require that they may not be deported except in accordance with New Zealand’s international obligations.

Net benefits: The preferred option would benefit persons in need of international protection by:

1. providing for a system that is more transparent and easier to use
2. ensuring that all international obligations are assessed whenever a protection claim is lodged, regardless of the person’s understanding of the conventions themselves
3. ensuring that residents liable for deportation may claim protection status through the formal procedure
4. ensure that determination officers have access to relevant information held by other government departments for the purpose of assessing claims
5. allow further claims to be made only where there has been a significant change in circumstances material to protection status, that was not generated by the claimant, but no further claims where manifestly unfounded, clearly abusive or simply repeated
6. ensuring their claim to protection was kept confidential, including by the media, which may help protect family members in the home country, or themselves if their claim is declined, and
7. give clear legal status to refugees brought to New Zealand as part of an organised programme.

The proposal would benefit the government’s international reputation by creating a system that is similar to complementary protection regimes in Canada, the United Kingdom and Europe, and is recommended by the United Nations High Commissioner for Refugees (UNHCR). It would benefit government and New Zealanders by creating a single determination procedure that is more efficient and results in a single avenue of appeal.

[Withheld under the Official Information Act 1982]

Who may be excluded from protection

Policy Problem and Magnitude: Only the Refugee Convention, including its exclusion provisions, is codified in the 1987 Act. Unlike the Refugee Convention, article 3 of the CAT and articles 6 and 7 of the ICCPR do not exclude anyone from protection, and do not allow any protected person to be deported. These obligations apply regardless of whether New Zealand legislates for a single determination procedure. There are a number of existing legal mechanisms for prosecuting or extraditing persons who have committed a particularly serious offence overseas. There may be persons, however, whom New Zealand considers to be of high risk, who are not able to be prosecuted or extradited. Since 1995, there have been 18 persons excluded from protection under the Refugee Convention, who, if protected under CAT or ICCPR could not be deported.

Alternative Option 1: Persons excluded or exempted from Refugee Convention protection would also be excluded from formal protection status on ICCPR or CAT grounds and, in addition, the Bill would explicitly enable their deportation, regardless of CAT or ICCPR obligations. This option is not preferred as it could allow a small number of persons to be sent back to torture or cruel, inhuman or degrading treatment or punishment, placing New Zealand in breach of its international obligations.

Preferred Option: Determination officers would have the additional function of assessing whether there are serious reasons for considering that a claimant has:

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

Under the Refugee Convention, these provisions have the effect of excluding a person from refugee status, which means the person may be deported unless they are also protected under CAT and ICCPR. Where a person was found to be protected under CAT or ICCPR and to have committed one or more of the acts set out above, New Zealand would still be required (as now) not to return that person to torture or cruel treatment. The Minister of Immigration would be responsible for determining what immigration status, if any, be given to persons protected under CAT or ICCPR but excluded from the Refugee Convention. Prosecution in New Zealand or extradition to a safe third country may also be options.

Net benefits: The government would benefit by upholding these international human rights instruments. Persons protected by CAT and ICCPR, including those who have committed crimes against humanity or who present a danger to New Zealand’s community would benefit by being protected, for the time being, from expulsion. There may be perceived costs to New Zealand society from protecting these people (which is the current obligation and practice).

The Stateless Persons Convention

Policy Problem and Magnitude: New Zealand is not party to the 1954 Convention Relating to the Status of Stateless Persons (the Stateless Persons Convention) and has no international obligations to protection stateless persons who come to New Zealand. This may impact negatively on New Zealand’s international reputation, but does not prevent New Zealand from allowing stateless persons to remain in New Zealand.

Status Quo: New Zealand would not become party to the Stateless Persons Convention and would deal with the immigration status of stateless persons on a case by case basis.

Alternative Option 1: New Zealand would not become party to the Stateless Persons Convention at this time due to the need for more comparable international information to quantify the costs.

Alternative Option 2: Officials would report back on becoming party to the Stateless Persons Convention without incorporating it into the proposed single determination procedure, in line with the practices of other countries.

Alternative Option 3: New Zealand would become party to the Stateless Persons Convention and include assessments of statelessness in the single protection determination procedure, in line with the recommendations of the UNHCR.

Preferred Option: There is no preferred option indicated in the Cabinet paper. Option 2 is not supported by the Department of Labour or the Ministry of Foreign Affairs and Trade.

Net benefits of becoming party: Alternative Option 3 would benefit New Zealand’s international reputation by indicating New Zealand’s commitment to international human rights instruments. It would incur costs for the government in terms of protection determination costs, and social services costs such as access to education, health and housing. It is not possible to quantify the number of stateless persons New Zealand would be obliged to protect in the future. Currently, it appears that the numbers are likely to be low, but New Zealand would have no control over the numbers increasing in the future.

Statement of Consultation Undertaken

Stakeholder Consultation: Many submitters considered that claimants should not be prosecuted for providing false documents or for failing to provide information. Submitters considered that the prospect of having a claim declined should be incentive enough for people to provide information. In light of these submissions and further analysis these proposals are no longer being recommended.

Government Departments/Agencies Consultation: The Ministries of Justice and Foreign Affairs and Trade have expressed serious concern that the international obligations under CAT and ICCPR may be overridden by domestic legislation and support the preferred option.