336 SEctioN Four – Rights oF SpEcific groUpS 21. Rights of Refugees Tikanga o ngä Tängata Rerenga “Everyone has the right to go to another country and ask forprotection if they are being mistreated or are in danger.” HUMAN RIGHTS IN NEW ZEALAND 2010 337 Everyone has the right to go to another unable or, owing to such fear, is unwilling to country and ask for protection if they avail himself of the protection of that country; are being mistreated or are in danger. or who, not having a nationality and being Universal Declaration of Human Rights, Article 14 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 Introduction to it. Timatatanga In the New Zealand context, refugees fall into a number The human rights of refugees are specified in the 1951 of categories: quota or mandated refugees, spontaneous United Nations Convention Relating to the Status of refugees or asylum seekers, and family members of Refugees (the Refugee Convention) and its 1967 protocol. refugees resident in New Zealand. Spontaneous refugees The International Covenant on Civil and Political Rights are people who claim refugee status on arriving at the (ICCPR) and the Convention Against Torture and Other border or after entering New Zealand. Typically, people Cruel, Inhumane or Degrading Treatment or Punishment in this situation arrive without papers, or claim refugee 1984 (CAT) also contain provisions relevant to refugees. status before or after the expiry of a temporary permit. New Zealand has ratified all three treaties and they They can be divided into those awaiting a decision on are reflected in a variety of domestic legislation. For their refugee status and those who have already been example, the Crimes of Torture Act 1989 was enacted granted refugee status (when they become known as as a precursor to New Zealand’s ratification of the convention refugees). CAT; the New Zealand Bill of Rights Act 1990 (BoRA) affirms New Zealand’s commitment the ICCPR; and the Quota refugees are recognised as refugees by the United Immigration Act 1987 was amended in 1999 to ensure Nations High Commissioner for Refugees (UNHCR). They that New Zealand met its obligations under the Refugee are chosen by the New Zealand Government for reset- Convention.1 tlement in New Zealand while still overseas. They are selected on the basis of need and come from a variety of Since the Commission’s review of human rights in 2004, backgrounds: some having spent time in refugee camps, new immigration legislation has been enacted. The others coming to New Zealand from their home countries Immigration Act 2009 came into force in 2010. One or an initial country of resettlement. New Zealand is one objective of the act is to ensure compliance with New of only 21 countries which accept an annual quota of Zealand’s ‘immigration-related’ international obligations. 2 refugees for resettlement.3 New Zealand is one of 10 Therefore, the act not only continues the csonvention countries considered by UNHCR as core resettlement regime introduced in 1999, but also codifies certain countries. 4 obligations under CAT and the ICCPR. A small number of people are also accepted annually as Article 1(a2) of the Refugee Convention defines a New Zealand residents under the Refugee Family Support refugee as: category. This came into effect in 2007, replacing the [A person who] … owing to a well founded Refugee Family Quota (RFQ) policy which operated on a fear of being persecuted for reasons of ‘ballot’ system. The current policy allows some former race, religion, nationality, membership of a refugees without family members in New Zealand (subject particular social group or political opinion, is to certain criteria) to apply to sponsor relatives to settle in outside the country of his nationality and is New Zealand. Up to 200 places are available per year. 1 The convention is appended as schedule 1, Immigration Act 2009 2 section 3(2d), Immigration Act 2009 3 Since 1970, New Zealand has accepted more than 20,800 quota refugees. 4 Australia, Canada, Denmark, Finland, the Netherlands, New Zealand, Norway, Sweden, the United Kingdom and the United States currently accept 99 per cent of the refugees who are annually resettled. Jayne Bright, (left front) gives advice on the best way to plant potatoes at the community garden set up in the grounds of the Refugees as Survivors building in Mangere, Auckland. 338 SEctioN Four – Rights oF SpEcific groUpS In addition, former refugees have the same rights as The CAT requires that a ratifying state shall not refoule other residents and citizens to access places under the (expel, return or extradite) a person to another state general immigration residence policy, such as the ‘Family where there are substantial grounds for believing that Sponsored Stream’. These people are not technically they would be in danger of being tortured. This includes refugees, but rather relatives of refugees who have not sending a person at risk of torture to a country already settled in New Zealand. The cost of their resettle- where, although they may not be immediately at risk, ment is met by their families and/or sponsors. they might be sent on to a country where they would be. The Convention on the Rights of the Child (UNCROC) One group unable to claim refugee status under the stipulates that a child should not be separated from convention, because they do not meet the definition their parents, except when determined by competent of refugee, are those fleeing environmental disasters. 5 authorities. 8 New Zealand ratified the CAT in 1989 and Nevertheless, these people still need international UNCROC in 1993. protection. Such displacement is becoming more common with the impact of climate change. It is likely to have Although New Zealand has a credible record of ratifying increasing significance for New Zealand, as a number of human rights treaties, it has not ratified the Convention Pacific countries face the threat of losing land to rising relating to the Status of Stateless Persons.9 A stateless sea levels as a result of climate changes. person is one who is not considered a national by any state under the operation of its law. 10 International context The Refugee Convention provides a mechanism for Kaupapa ä taiao recognising the legal status of refugees. 11 It prohibits the return of refugees to countries where they will be in Rights in the international human rights treaties apply to danger of persecution (the concept of non-refoulement) everyone, without exception. The two main treaties are and requires that refugees are provided with social and the International Covenant on Civil and Political Rights economic rights on a non-discriminatory basis. Refugees (ICCPR) and the International Covenant on Economic should therefore be able to access rights such as work, Social and Cultural Rights (ICESCR). The ICCPR requires housing and education on the same basis as other ratifying states to protect the civil and political rights citizens. of people in their jurisdiction, without discrimination.6 It includes the right of aliens lawfully in a state that is Depending on the right involved, the Refugee Convention party to the covenant not to be expelled, other than by a defines the non-discriminatory treatment of refugees as: lawful process and only after their case has been heard by • being accorded the same treatment as nationals of a 7 a competent authority. It also reinforces the right to life country in relation to rationing, elementary education, and not be subjected to cruel and unusual punishment. public relief and social security 5 UNHCR (2009), Climate Change Natural Disasters and Human Displacement: A UNHCR Perspective, Environment, 14 August. For further UNHCR comment on climate change, see www.unhcr.org/climate 6 New Zealand ratified the ICCPR and the ICESCR in 1976. 7 Also Article 32(2) of the Refugee Convention 8 Article 3 of UNCROC provides that the best interests of the child must be a primary consideration in administrative decisions affecting the rights of the child. 9 The New Zealand Government acceded to the Convention on the Reduction of Statelessness in 2006. 10 The Citizenship Act prevents people born in New Zealand to stateless persons from being stateless and provides for a grant of citizenship in special cases. New Zealand refugee jurisprudence specifically recognises an overlap between the grounds in the 1954 Convention and the Refugee Convention. If a stateless person is at risk of persecution because of one of the reasons in the Refugee Convention, they are recognised as a refugee. 11 A grant of refugee status is not the same as citizenship. It is recognition of a temporary status pending a durable solution. See Kinley D (editor), (1998), Human Rights in Australian Law: Principles, Practice and Potential, The Federation Press, Sydney HUMAN RIGHTS IN NEW ZEALAND 2010 339 • being treated no less favourably than aliens generally in New Zealand context relation to employment, housing and education. Kaupapa o Aotearoa This limits the protection against discrimination to the The Immigration Act 2009 aims to manage immigration in basic minimum. This distinction is largely theoretical in a way that balances the national interest and the rights the New Zealand context, since people who have been of individuals. It seeks to strengthen border control granted refugee status (and subsequently permanent while ensuring compliance with immigration-related residence) have the same rights as other citizens. The international obligations, particularly those under the situation is less satisfactory for asylum seekers who are Refugee Convention, CAT and the ICCPR. not formally recognised as refugees - including those in Part 5 of the act ensures that New Zealand meets its the process of appealing their status determination.