C v Chief Executive of the Ministry of Social Development
[2019] NZHC 2155
•30 August 2019
NOTE: THE CONFIDENTIALITY OF THE NAMES AND IDENTIFYING PARTICULARS OF THE APPELLANTS AND OF THEIR CLAIMS OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-217
[2019] NZHC 2155
UNDER the Social Security Act 1964 IN THE MATTER
Of an appeal by way of Case Stated from the determination of the Social Security Appeal Authority at Wellington under section 12Q of the Social Security Act 1964
BETWEEN
C
First Appellant
S
Second AppellantAND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 25 March 2019 Appearances:
S J Fraser and S M Wadham for Appellants M Deligiannis for Respondent
Judgment:
30 August 2019
JUDGMENT OF CLARK J
C and ANOR v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC 2155 [30 August 2019]
Contents
Introduction......................................................................................................... [1]
Background.......................................................................................................... [4]
Immigration history........................................................................................... [4]
Application for emergency benefit................................................................... [10]
Authority’s decision........................................................................................... [13]
Preliminary matters.......................................................................................... [22]
The case stated................................................................................................. [22]
An issue of mootness........................................................................................ [25]
The appeal.......................................................................................................... [29]
Appellants’ position......................................................................................... [29]
The Ministry’s position.................................................................................... [33]
Assessment.......................................................................................................... [34]
Relationship between ss 61 and 74A of the Social Security Act[34]
Section 9 of the Immigration Act..................................................................... [38]
Section 164 limitation on deportation............................................................. [41]
Inconsistency with the Refugee Convention?.................................................. [46]
Did the Court of Appeal doubt the correctness of Rajabian?[56]
New Zealand Bill of Rights Act 1990.............................................................. [59]
Does the Social Security Act confer a discretion to be satisfied a person is recognised as a refugee?........................................................................................................... [61]
Summary............................................................................................................ [65]
Result.................................................................................................................. [67]
Introduction
[1] Ms C and her son, Mr S, were claimants for refugee status. While awaiting determination of their claims they applied for emergency benefits pursuant to s 61 of the Social Security Act 1964 (the Social Security Act).1 Their applications for emergency benefits were declined on the delegated authority of the Chief Executive of the Ministry of Social Development (the Ministry) on the grounds the appellants were unlawfully present in New Zealand. The appellants unsuccessfully appealed the Ministry’s decision to a Benefits Review Committee and subsequently to the Social Security Appeal Authority (the Authority).2 The appellants now appeal to this Court under s 12Q of the Social Security Act, which allows appeals to the High Court by way of case stated on a question of law.
1 The Social Security Act 1964 was repealed on 26 November 2018 by s 455(1) of the Social Security Act 2018. The 2018 Act is not relevant to this appeal, although s 74A has been materially reproduced in ss 19 and 205 of the 2018 Act.
2 Re C [2017] NZSSAA 51 [Authority’s decision].
[2]This Court is required to determine the following question:3
Did the Authority err in law in determining that, because the appellants were not lawfully present in New Zealand and had not been recognised as refugees, they were therefore not entitled to an emergency benefit pursuant to s 74A(1A) of the Social Security Act 1964?
[3] I have concluded the question is to be answered in the negative and that, accordingly, the appeal must be dismissed.
Background
Immigration history
[4] Ms C was born in Rhodesia (modern day Zimbabwe) in 1967 but immigrated to South Africa in 1990 where she gave birth to her son, Mr S and met her husband, Mr C. Ms C never obtained South African citizenship and her permanent residency there has now lapsed. Mr C and Mr S are South African citizens.
[5] The family moved to New Zealand in June 2008. They were granted visitors’ permits valid until September 2008. In August 2008, Mr C applied for an Essential Skills work visa to undertake a position as a carpenter in Auckland. He was granted a work permit in December 2008, valid until December 2010. Ms C was granted a concurrent work permit, while Mr S was granted a student visa as a dependent child. Mr C was granted further work visas in November 2010 and February 2012 with corresponding visas also being granted to Ms C and Mr S. In July 2012, Immigration New Zealand declined Mr C’s application for residency within the Skilled Migrant Category. He unsuccessfully appealed this decision to the Immigration and Protection Tribunal.
[6] In June 2013, Immigration New Zealand declined to grant Mr C a further work visa because it was not satisfied his employer had made genuine attempts to employ New Zealanders. Ms C and Mr S were correspondingly declined further visas. In February 2014, the Hon Nathan Guy requested ministerial intervention on behalf of
3 This question differs slightly from the question posed by the Authority. It was agreed with counsel at the hearing pursuant to r 21.12(2) of the High Court Rules 2016. I say a little more about the reformulated question below at [22]–[24].
the family, noting they feared for their safety if they were required to return to South Africa. In May 2014, the Hon Nikki Kaye, then Associate Minister of Immigration, decided to grant Ms and Mr C one-year work visas, and Mr S a one-year visitors’ visa.
[7] In July 2015, after the one-year visas expired, the family appealed their deportation liability to the Immigration and Protection Tribunal on humanitarian grounds. The Tribunal dismissed the appeal in September 2015. Ms C submitted Mr C was reliant on her (and others) for mental, emotional, physical and financial support. He has epilepsy and his right temporal lobe had been surgically removed. Mr S, who is now 27 years old, was also dependent on Ms C because he was unable to work (having only been granted visitors’ visas). In October 2015, Ms C submitted a further ministerial request on the basis that, if deported, she would be required to return to Zimbabwe while her dependants could return to South Africa as citizens. She expressed concerns about possible violence in Zimbabwe against people of European decent. In February 2016, the Hon Craig Foss, then Associate Minister of Immigration, declined to intervene.
[8] Deportation orders were served on the family in May 2016. On 4 July 2016, they were detained by police and taken into custody until the next day. They attempted to submit further requests for work visas, but Immigration New Zealand refused to consider the requests because of the deportation orders. Each then submitted a claim for refugee status on 5 July 2016. Their claims were declined by the Refugee Status Branch on 29 September 2017. The Refugee Status Branch decision was upheld on appeal to the Immigration and Protection Tribunal on 27 June 2018. No further appeal of that decision was pursued within the statutory timeframe.
[9] In September 2018, the Hon Grant Robertson sought ministerial intervention on behalf of the family. Later that month, the Hon Kris Faafoi, Associate Minister of Immigration, cancelled the family’s deportation liability and agreed to grant two-year work visas, subject to the health and character requirements for temporary entry being met. Despite Mr C’s evident health problems, and the difficulties they create for him, work visas were granted on 11 April 2019.
Application for emergency benefit
[10] On 25 July 2016, Ms and Mr C met with a case manager at the Otaki Work and Income Service Centre to discuss the possibility of applying for an emergency benefit pending the outcome of their applications for refugee status. They were told they were ineligible for an emergency benefit because they did not hold a current visa or permit. Following discussions with their lawyer, who assured them they should be eligible, Ms and Mr C and Mr S applied for emergency benefits on 30 August 2016. Mr and Ms C’s application was declined that same day. Mr S’s application was declined on 12 September 2016.
[11] On 12 September 2016, Ms C and Mr S applied for internal review of the decisions to decline their applications for an emergency benefit. On 16 September 2016, the decisions were upheld by the Service Centre Manager. Ms C and Mr S then sought review by a Benefits Review Committee. Ms C and Mr S appeared before the Committee at a hearing on 11 October 2016. The following day, the Committee upheld the decision declining the applications for an emergency benefit.
[12] On 19 November 2016, Ms C and Mr S appealed to the Authority. At the time of the hearing before the Authority on 6 April 2017, the claims for refugee status had yet to be determined. On 6 September 2017, the Authority dismissed the appeals. It is from the Authority’s decision that Ms C and Mr S appeal to the High Court.
Authority’s decision
[13] At the outset the Authority contrasted the appellants’ position with ill-founded refugee status claims commonly made in an attempt to delay enforcement action. It was clear from the appellants’ evidence their circumstances were different from those who sought to abuse the refugee and protection status jurisdiction. But, as the Authority recorded, it does not and could not determine refugee status or make other determinations relating to immigration status. The sole issue raised by the appeal was whether the appellants were “entitled to seek an emergency benefit under s 61 of the Social Security Act 1964”.
[14] The Authority considered whether s 74A of the Social Security Act excluded the appellants from entitlement to an emergency benefit. Section 74A provides:
74A Persons unlawfully resident or present in New Zealand
(1)A person is not entitled to receive a benefit who is—
(a)unlawfully resident or present in New Zealand; or
(b)lawfully resident or present in New Zealand but only by virtue of holding a temporary entry class visa.
(1A) Despite subsection (1), the chief executive may take either or both of the actions specified in subsection (1B) if the chief executive is satisfied that the person is—
(a)a person lawfully present in New Zealand who is awaiting the outcome of his or her claim for recognition as a refugee or a protected person; or
(b)a person who is recognised as a refugee or a protected person; or
(c)a person applying for a residence class visa under the Immigration Act 2009 who is compelled to remain in New Zealand because of unforeseen circumstances.
(1B) The actions referred to in subsection (1A) are—
(a) grant the person an emergency benefit under section 61:
…
[15] The Authority identified the two critical provisions as subs (1)(a) and (1A)(a), which turn (respectively) on whether the appellants were “unlawfully … present in New Zealand” or “lawfully present in New Zealand” while awaiting the outcome of a claim for recognition as a refugee.
[16] The first of two decisions the Authority discussed was Rajabian v Chief Executive of the Department of Work and Income New Zealand (Rajabian). Rajabian also concerned an application for an emergency benefit by a claimant for refugee status.4 In ascertaining the meaning of s 74A, Potter J looked to the Immigration Act 2009 and the definition of “unlawfully in New Zealand” contained in s 9(1) of that Act:
4 Rajabian v Chief Executive of the Department of Work and Income New Zealand HC Auckland CIV-2004-485-671, 12 October 2004.
9Meaning of unlawfully in New Zealand (in relation to person who is not New Zealand citizen)
(1)In this Act, a person who is not a New Zealand citizen is unlawfully in New Zealand if the person is in New Zealand but—
(a)is not the holder of a visa granted under this Act; or
(b)has not been granted entry permission under this Act.
…
[17] The Authority then referred to Aziz v Chief Executive of the Ministry of Social Development (Aziz) in which, similarly, the Court of Appeal relied on the Immigration Act definition when construing s 74A of Social Security Act. As the case did not involve a person claiming refugee status, the Court of Appeal added:5
It is therefore unnecessary to say anything more about Rajabian, and we leave open whether Rajabian was correctly decided.
[18]Referring to the Court of Appeal’s comment, the Authority observed:6
The Court did not elaborate on why it raised a doubt as to whether the Rajabian decision was correctly decided. It appears that, potentially, the Court was mindful of the terms of the Convention, and the Protocol, which are incorporated into the Immigration Act 2009 (as they were under the Immigration Act 1987). The terms of the Refugee Convention are, applied as part of New Zealand domestic law. The Refugee Convention has provisions relating to the lawfulness of a refugee’s presence in the country of refuge.
[19] The Authority then considered the “core principle” of the Convention Relating to the Status of Refugees (the Refugee Convention)7 contained in art 33(1) — the “non-refoulment” obligation. The non-refoulment obligation is incorporated into New Zealand’s domestic law by s 164 of the Immigration Act:
164Limitation on deportation of persons recognised or claiming recognition as refugee or protected person
(1)No person who is recognised as a refugee or a protected person in New Zealand, or who is a claimant, may be deported under this Act.
…
5 Aziz v Chief Executive of the Ministry of Social Development [2011] NZCA 364 at [24].
6 Authority’s decision, above n 2, at [28].
7 Convention Relating to the Status of Refugees 189 UNTS 150 (signed 28 July 1951, entered into force 22 April 1954).
(3)A refugee or a claimant for recognition as a refugee may be deported but only if Article 32.1 or 33 of the Refugee Convention allows the deportation of the person.
[20] The Authority reasoned that s 164 of the Immigration Act might have some bearing on whether a person claiming refugee status is lawfully present in New Zealand for the purposes of s 74A of Social Security Act. Ultimately, however, the Authority regarded itself as bound by Rajabian and unable therefore to depart from the principles established in that case, namely, that whether a person is “unlawfully” or “lawfully” resident or present in New Zealand is to be determined by reference to the definition of “unlawfully in New Zealand” in s 9(1) of the Immigration Act. The legislative amendments to s 74A since Rajabian did not materially change the provision and Rajabian continued to be binding on the Authority.
[21]The Authority reached the following conclusions and dismissed the appeals:8
(a)The fact the appellants had no visa entitling them to be in New Zealand inevitably meant they were excluded by s 74A from any entitlement to a benefit.
(b)Section 74A(1)(a) excluded the appellants and s 74(1)(b) provided no exception. They were unlawfully in New Zealand and not lawfully in New Zealand for the purposes of that section.
(c)Section 74A(1A) could not apply to the appellants as they were not lawfully present and had not been recognised as refugees.
Preliminary matters
The case stated
[22] In its case stated, the Authority framed the following questions of law for the opinion of the High Court:
a.Should the principles in the Rajabian case be reconsidered?
8 Authority’s decision, above n 2, at [53]–[55].
b.If the answer to the first question is “yes”, was the appellant lawfully present in the [sic] New Zealand for the purposes of s 74A of the Act?
[23] At the commencement of the hearing I raised with counsel my concern that no proper question of law was raised by the case stated. A party before the Authority may, by way of case stated, appeal to the High Court “on a question of law only”.9 Counsel shared my concern and agreed to reframe the questions so as to raise a question of law. Ultimately, the question set out at [2] above was settled.
[24] In the course of communications with counsel following the hearing (discussed from [25] below) it transpired that Ms Deligiannis, for the Ministry, and Mr Fraser, for the appellants, each had recorded slightly different formulations of the question from that which I had recorded. Having listened to the recording of this part of the hearing I have satisfied myself that the question agreed with counsel is accurately stated at [2] above.
An issue of mootness
[25] During the hearing I asked counsel to advise me of the immigration status of the appellants between 2008–2016. That information was not before the Court and I wished to know the outcome of the appellants’ claims for recognition as refugees. Mr Fraser was uncomfortable with that request for evidence. While I understood his concern (that it was not relevant to the legal question before me), it seemed to me artificial, in the context of a case where the ultimate issue had been decided by reference to their immigration status, not to have a complete picture of the appellants’ immigration status.
[26]The following further documents were filed after the hearing:
(i)affidavit of Ms C affirmed 10 April 2019;
(ii)Mr Fraser’s accompanying memorandum;
(iii)an affidavit of Bruce Jenkins, Immigration Officer, sworn 16 April
9 Social Security Act 1964 s 12Q.
2019, providing the appellants’ immigration history; and
(iv)a memorandum of counsel for the respondents outlining the legislative history to the Social Security Act 2018 and annexing a copy of the Attorney-General’s report to the House of Representatives prepared in accordance with s 7 of the New Zealand Bill of Rights Act 1990 (NZBORA).
[27] Following receipt of the affidavits, it appeared to me the issues underlying the appeal were moot. The claims to be recognised as refugees made on 5 July 2016 by each of the family members had been declined, their subsequent appeals dismissed, and no further appeals had been made within the statutory timeframe. As well, all appellants were lawfully present in New Zealand and able to work pursuant to their work visas. In a minute to counsel, I noted that while there is a discretion to determine an appeal that has become moot, the discretion is to be exercised with caution and only where there is good reason to do so in the public interest.10 My preliminary view was that, as there was existing High Court authority on the very question raised by the appeal, if this Court were to depart from existing authority, it would be improper to do so on moot facts. I invited counsel to file memoranda in response. Mr Fraser sought a month in which to respond.
[28] Ultimately, having considered counsel’s respective memoranda, I concluded there is a live issue for determination. Had the appellants been successful on this appeal, they may have been entitled to payments of their benefits commencing from 30 August 2016, the date their applications were received.11 Any such payments would cease from the date the appellants were no longer eligible to receive a benefit. In effect, the appellants may have received back-dated payments. The appellants may also have had an arguable case under s 80AA to extend their back-dated payments to the time of their first visit to Otaki Work and Income on 25 July 2016, if they established the Ministry erroneously dissuaded them from lodging applications.
10 Baker v Hodder [2018] NZSC 78 at [32].
11 Social Security Act 1964, s 80(1)(b).
The appeal
Appellants’ position
[29] The appellants say Rajabian should not be followed because it is inconsistent with New Zealand’s international obligations under the Refugee Convention, as amended by the Protocol Relating to the Status of Refugees.12
[30] Mr Fraser also advanced a further argument that was not considered by the Authority. Referring to s 74A(1A)(b), which allows an emergency benefit to be granted to “a person who is recognised as a refugee”, Mr Fraser submitted the Ministry “has discretion to be satisfied an applicant for refugee status is recognised as a refugee”. He submitted that the appellants had been recognised as refugees because their claim for refugee status had been accepted for consideration pursuant to s 134 of the Immigration Act.
[31] Mr Fraser also referred to the rights not to be deprived of life and not to be subjected to cruel, degrading, or disproportionately severe treatment under ss 8 and 9 of NZBORA.
[32] Finally, Mr Fraser advanced the argument s 61 of the Social Security Act is a stand-alone provision not limited by s 74A.
The Ministry’s position
[33] The Ministry takes the position the law was correctly stated in Rajabian. Ms Deligiannis submitted Parliament is entitled to draw bright lines in setting eligibility for social security benefits and immigration status is one such bright line. The appellants were unlawfully present in New Zealand by virtue of s 9 of the Immigration Act and not eligible, therefore, to a benefit. Ms Deligiannis rejected the contention that the Rajabian approach is inconsistent with New Zealand’s obligations under international law.
12 Protocol Relating to the Status of Refugees 606 UNTS 267 (signed 31 January 1967, entered into force 4 October 1967).
Assessment
Relationship between ss 61 and 74A of the Social Security Act
[34] I deal first with that part of the appellants’ case engaging the relationship between ss 61 and 74A of the Social Security Act.
[35] Under s 61, the Ministry may grant emergency benefits in cases of hardship. Section 61 confers on the Ministry a power to grant emergency benefits to those without sufficient means for themselves or dependants and who are not qualified to receive a main benefit under the Social Security Act. The grant of the benefit is in the Ministry’s discretion and is subject to such conditions as the Ministry thinks fit to impose.
[36] Relying on the breadth of the discretion conferred on the Ministry, Mr Fraser argued an emergency benefit can be granted to anyone who satisfies s 61 as it is a stand-alone provision. In particular, he argued it is not subject to s 74A.
[37] The argument that s 61 enables the grant of an emergency benefit, despite the s 74A thresholds, is untenable. A similar argument was advanced in Aziz. The Court of Appeal rejected the proposition that s 61 was a general empowering provision applying wherever there is hardship.13 Mr Fraser’s point that s 61 does not appear to have been argued “as a stand-alone ground” in Aziz does not advance the appellants’ position. Detailed and expansive arguments were made by Mr Aziz’s counsel. None was accepted by the Court of Appeal.
Section 9 of the Immigration Act
[38] The Court of Appeal was in no doubt that s 74A is to be interpreted by reference to what is now s 9 of the Immigration Act, (set out above at [16]). After rejecting the arguments made by Mr Aziz’s counsel, the Court of Appeal stated:
[20] … First, the expressions “unlawfully resident or present in New Zealand” and “lawfully resident or present in New Zealand” in s 74A of the Social Security Act are to be interpreted by looking at the Immigration Act. Mr McKenzie’s point that the two Acts have different objects reinforces rather
13 Aziz v Chief Executive of the Ministry of Social Development, above n 5, at [18]–[20].
than detracts from this point. The Immigration Act is the statute which governs whether a person is lawfully or unlawfully in New Zealand. Assistance in determining the lawfulness of a person’s status in New Zealand is not to be found in the Social Security Act, because that is concerned with eligibility for benefits. Section 74A introduces the concept of residence, because it is relevant to eligibility for what Mr McKenzie termed “standard” benefits. We think Mr McKenzie was referring there to all the benefits available under the Social Security Act, other than the emergency benefit or the special benefit specifically provided for in s 74A of the Act.
[21] Putting aside the concept of residence, which is not relevant to Mr Aziz, s 74A refers to a person being unlawfully or lawfully “present in New Zealand”. The lawfulness of a person’s status in New Zealand is to be determined by reference to s [9] of the Immigration Act. In terms of that section, Mr Aziz was unlawfully in New Zealand during the interregnum because he neither held a permit to be in New Zealand nor an exemption from the requirement to hold a permit. We see no significance in the different wording used in s 74A and s [9]. Reinforcing this is the fact that s [14(2)] provides that the fact that a person has applied for a [visa] does not render that person’s “presence in New Zealand” lawful. That wording is indistinguishable from the s 74A(1)(a) and (b) wording “present in New Zealand”.
[39] The Court of Appeal also found in the information disclosure provisions of the Immigration Act “powerful support” for the view that s 74A is to be interpreted by reference to the Immigration Act.14
[40] In short, the Court of Appeal aligned its approach to the interpretation of s 74A with that adopted by Potter J in Rajabian. Mr Fraser invites this Court to depart from Rajabian. I see no basis for doing so. I adopt Potter J’s analysis and approach, particularly in light of its endorsement by the Court of Appeal. Mr Fraser submitted the Court of Appeal raised a doubt about whether Rajabian was correctly decided. I do not agree, but it is convenient to discuss this point a little later.
Section 164 limitation on deportation
[41] The appellants’ next argument relies on the Authority’s suggestion that s 164 of the Immigration Act (set out above at [19]) might have some bearing on whether a person claiming refugee status is lawfully present in New Zealand for the purpose of s 74A. In essence, the argument is that because s 164 prevents deportation of a person claiming refugee status, refugee claimants are in the same position as New Zealand
14 At [22]. Section 141A of the Immigration Act 1987 permitted immigration authorities to disclose information to the social security authorities for the purpose of verifying a person’s entitlement to a benefit. That provision has been materially reproduced in s 298 of the Immigration Act 2009.
citizens who, likewise, cannot be deported. The logical corollary of this argument is that every person awaiting the outcome of her or his claim for recognition as a refugee would be lawfully present in New Zealand thus rendering redundant the words “lawfully present in New Zealand” in subs (1A)(a). Such a construction is to be avoided.15
[42] It is also clear from the speech of the Hon Jenny Shipley, when introducing the amendment bill leading to the enactment of s 74A in its present form, that the purpose of the amendment was to ensure only those people lawfully in New Zealand would be entitled to receive benefits:16
The amendment to section 74A in clause 17 deals with changes to allow emergency benefit payments to be paid to lawfully resident refugee applicants. Under current legislation, people who have applied for refugee status in New Zealand qualify for an emergency benefit. That applies equally to people who are both lawfully and unlawfully in the country. This Bill contains a change that will allow the payment of emergency assistance to those people who are lawfully in the country and who have applied for refugee status.
People who apply for refugee status fall into two main groups: those who apply for refugee status while in New Zealand on a temporary permit and while their temporary permit is still current, and those who apply for refugee status once their temporary permit has expired.
It is the second group we are concerned about. This group of people, commonly referred to as overstayers, are unlawfully in the country when they apply for refugee status. Why should New Zealand taxpayers support people who are openly in New Zealand unlawfully? Of course they should not. Social security legislation is clear that the assistance is available only to people who are lawfully in the country, and, on the whole, those who hold permanent residential status.
Changing current legislation to pay emergency benefits to lawfully resident refugee applicants is consistent with this principle. This change is not inconsistent with New Zealand's international obligations under the convention relating to the status of refugees. This convention relates to refugees who are lawfully in any country.
[43] Plainly, individuals in the position of the appellants were in Parliament’s contemplation when it enacted amendments to s 74A to ensure those who were in New Zealand unlawfully were ineligible to receive any benefit, including an emergency benefit.
15 Ross Carter Burrows and Carter Statue Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 329.
16 (31 March 1993) 534 NZPD 14552.
[44] The further difficulty in the appellants’ argument, as Ms Deligiannis submitted, is that s 164 of the Immigration Act does not render lawful the presence in New Zealand of a person claiming recognition as a refugee. Refugee claimants who do not hold a visa remain under an obligation to leave New Zealand.17 Consistent with the non-refoulment obligation under art 33(1) of the Refugee Convention, s 164 merely prevents their deportation.
[45] The question whether a person (other than a New Zealand citizen)18 is unlawfully present in New Zealand is determined solely by the meaning of “unlawfully in New Zealand” in s 9 of the Immigration Act. A claimant for recognition as a refugee is no exception. Similarly, the question whether a person claiming recognition as a refugee is lawfully present in New Zealand is determined primarily by the meaning of “unlawfully in New Zealand” in s 9 of the Immigration Act but may also be informed by the Refugee Convention, as I will explain.
Inconsistency with the Refugee Convention?
[46] The appellants submitted that the meaning of s 74A is not so clear that the Court is able to “close its eyes to any of New Zealand’s international obligations” or the rights affirmed in NZBORA. In particular, Mr Fraser argued that the Ministry’s interpretation of s 74A is inconsistent with the non-refoulment obligation in art 33(1) of the Refugee Convention:
Article 33 – Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
[47] Article 33 does not import an obligation to provide social security. That obligation arises from art 24(1)(b) of the Refugee Convention, which provides:
17 Immigration Act 2009, s 18.
18 New Zealand citizens are always lawfully present in New Zealand by virtue of s 13(1) of the Immigration Act 2009.
Article 24 - Labour legislation and social security
1.The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters:
…
(a)Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:
…
[48] Importantly, the obligation in art 24(1)(b), to accord refugees the same treatment as is accorded to nationals in respect of social security, is an obligation owed to refugees lawfully staying in the territory of the contracting state. In this regard, there is a broad correspondence between art 24(1)(b) and s 74A(1A)(a).
[49] In relation to the meaning of “lawfully staying” in art 24(1)(b), the Authority referred to Dr James Hathaway’s text, The Rights of Refugees Under International Law,19 in which Dr Hathaway discusses the way in which the Refugee Convention relates a refugee’s enjoyment of various rights and protections to the level of the refugee’s attachment to the asylum state. At the lowest of Dr Hathaway’s five levels of attachment, a refugee is simply subject to a state’s jurisdiction. But with the deepening of the relationship to the asylum state there is entitlement to “an expanding array of rights”.20
[50] Addressing the third level of attachment, lawful presence, Dr Hathaway analyses the role domestic law plays in determining the lawfulness of a refugee’s presence:21
As a starting point, the logic of deference to national legal understandings of lawful presence is clearly sensible. Not only is it correct that there is no uniform and comprehensive international standard by reference to which lawful presence can be determined but … the drafters did generally intend for
19 James C Hathaway The Rights of Refugees Under International Law (Cambridge, 2005).
20 At 156.
21 At 177 (footnotes omitted), citing Kaya v Haringey London Borough Council [2001] EWCA Civ 677 at [31].
the third level of attachment to be determined by reference to national standards. Yet there is no indication that this deference was intended to be absolute, a proposition which – if carried to its logical conclusion – could result in refugees never being in a position to secure more than rights defined by the first two levels of attachment agreed to by state parties. Indeed, as much was recognised by the English Court of Appeal [in Kaya v Haringey London Borough Council] when it determined that “the contracting parties to the Convention wished to reserve to themselves the right to determine conditions of entry, at least in cases not covered by the Refugee Convention [emphasis added].” That is, a state’s general right to define lawful presence is constrained by the impermissibility of deeming presence to be unlawful in circumstances when the Refugee Convention – and by logical extension, other binding norms of international law – deem presence to be lawful. While this is in most cases a minimalist constraint on the scope of domestic discretion, it is nonetheless one that is important to ensuring the workability of a treaty intended to set a common international standard.
[51] A refugee then will be regarded as lawfully staying in a contracting state if her or his presence is ongoing in practical terms and is officially sanctioned (the fourth level of attachment).22 This does not require a formal declaration, grant of residence or establishment of domicile.23 It is apparent from the expanding nature of rights enjoyed by refugees under the Refugee Convention that the levels of attachment are sequential. In other words, refugees must be lawfully present in the state before it can be said they are lawfully staying in that state. Or, to put it another way, the lawfulness aspect of a lawful stay is determined on the same principles as for lawful presence.
[52] The Authority also referred to an article by Eve Lester, who argues that to interpret “lawfully staying” as a matter of compliance with national laws is overly narrow and runs counter to the protective spirit of the Refugee Convention.24 In particular, such an interpretation could see refugees capriciously rendered unlawfully resident as a result of the enactment of domestic laws. While appreciating Ms Lester’s point that domestic laws do not (as a matter of international law) capriciously render a refugee’s presence or stay unlawful, I have found Dr Hathaway’s nuanced explanation of the relationship between the Refugee Convention and domestic law helpful in understanding the practical role domestic laws play in determining the lawfulness of a refugee’s presence or stay in a contracting state, as domestic laws must have some bearing on that question. It is perhaps pertinent to observe the immediate
22 At 187.
23 At 189.
24 Eve Lester “Work, the Right to Work, and Durabel Solutions: A Study on Sierra Leonean Refugees in The Gambia” (2005) 17 Int J Refug Law 331 at 352–354.
context of Ms Lester’s argument was a critical discussion on the treatment of refugees in The Gambia.
[53] Finally, the Authority referred to a 1988 publication of the United Nations High Commissioner for Refugees entitled Lawfully Staying – A Note on Interpretation. The note concludes that a judgment as to lawfulness should “take into account all prevailing circumstances, including the fact that the stay in question is known and not prohibited, i.e. tolerated, because of the precarious circumstances of the person”.25 The note also states, however, that lawfulness “normally is to be assessed against prevailing national laws and regulations”.26 On the whole, the note corresponds with Dr Hathaway’s analysis of the position.
[54] Critically, for the appellants, Dr Hathaway explains the circumstances in which lawful presence (and therefore a lawful stay) undoubtedly comes to an end under international law:27
Lawful presence can come to an end in a number of ways. For refugees resident in another state who were authorized to enter on a strictly temporary basis, lawful presence normally concludes with the refugee’s departure from the territory. The lawful presence of a sojourning refugee may also be terminated by the issuance of a deportation or other removal order issued under a procedure that meets the requirements of the Refugee Convention, in particular Art 33.
[55] By virtue of s 164, the Immigration Act enacts “a procedure that meets the requirements of … Art 33” of the Refugee Convention.28 Therefore, as the Hon Jenny Shipley observed, s 74A(1A)(a) is not inconsistent with New Zealand’s obligations under international law. Individuals such as the appellants, who lodge claims for recognition as refugees after expiry of their visas (and after service on them of deportation liability notices or deportation orders), do so when they are unlawfully present in New Zealand. Accordingly, such individuals are not lawfully staying in New Zealand and therefore not entitled to provision of social security under Art 24(1)(b) of the Refugee Convention.
25 United Nations High Commissioner for Refugees “Lawfully Staying” – A Note on Interpretation
(3 May 1988) at [23].
26 At [23].
27 Hathaway, above n 19, at 185.
28 See excerpt at [54] above.
Did the Court of Appeal doubt the correctness of Rajabian?
[56] The appellants invited this Court to depart from Rajabian, observing that s 74A has been amended since Rajabian and Aziz were decided. I have dealt with those arguments. This part of the judgment is confined to the appellants’ contention that the Court of Appeal held reservations about whether Rajabian was correctly decided.
[57] There can be no doubt that the Court of Appeal agreed with Potter J’s central proposition that lawful presence for the purpose of the Social Security Act is determined by the definition in the Immigration Act. The Court of Appeal’s observation at [24] that it was “leav[ing] open whether Rajabian was correctly decided” is to be understood in its context. I therefore set out in full the passage of the judgment in which the Court of Appeal addressed a submission by counsel for Mr Aziz that Rajabian was wrongly decided and factually distinguishable:
[24] Our approach to the interpretation of s 74A of the Immigration Act is consistent with the view taken by Potter J in Rajabian v The Chief Executive of the Department of Work and Income New Zealand. Mr McKenzie submitted that Rajabian was wrongly decided and anyway distinguishable as a factually different case, as indeed it was. Mr Rajabian had entered New Zealand using false papers and a false identity, and had subsequently applied for refugee status. The issue was whether Mr Rajabian was entitled to an emergency benefit while a claimant to refugee status. The case turned on s 129X of the Immigration Act 1987, which prohibited removal or deportation of a refugee or refugee status claimant. Mr Aziz’s case is different. It does not involve a claim to refugee status and does not engage s 129X. It is therefore unnecessary to say anything more about Rajabian, and we leave open whether Rajabian was correctly decided.
[58] When read in context it is apparent that the final sentence of [24] is not an expression of doubt about whether Rajabian was correctly decided but a statement by the Court that it considered it was not necessary to say anything more about Rajabian, including whether it was correctly decided. Indeed, the real significance of [24] is in the Court of Appeal’s endorsement of Potter J’s approach to s 74A, which the Court described as “consistent” with its view.
New Zealand Bill of Rights Act 1990
[59] The appellants say the denial of an emergency benefit breached their rights, protected by ss 8 and 9 NZBORA, not to be deprived of life and not to be subjected to
torture or cruel treatment. As Ms Deligiannis submitted, the threshold for establishing “cruel, degrading or disproportionately severe treatment or punishment” is appropriately high.29 An enactment precluding those who are unlawfully present in New Zealand from entitlement to benefits, including claimants for refugee status, does not approach that threshold.
[60] There is no scope to interpret s 74A in the way Mr Fraser presses on appeal. The appellants have not shown s 74A is inconsistent with the rights and freedoms protected by NZBORA and that therefore an alternative meaning should be given to s 74A.
Does the Social Security Act confer a discretion to be satisfied a person is recognised as a refugee?
[61] The appellants presented in this appeal an alternative to the position relied upon before the Authority. The new argument is grounded in s 74A(1A)(b) of the Social Security Act pursuant to which “a person who is recognised as a refugee” may be granted an emergency benefit. Mr Fraser submitted that 74A(1A)(b) gives a discretion to the Ministry “to be ‘satisfied’ the claimant is ‘recognised as a refugee’”.
[62] The argument is unsustainable. In New Zealand, refugee status is recognised in only one way: by the determination of refugee and protection officers acting in accordance with Part 5 of the Immigration Act.30 Refugee status is accorded by the Refugee Convention, but the status is recognised in New Zealand under the Immigration Act.31 Crucially, s 125(3) of the Immigration Act provides that “[e]very person who seeks recognition as a refugee in New Zealand under the Refugee Convention must have that claim determined in accordance with this Act”.
[63] It is therefore fanciful to suppose s 74A(1A)(b) gives to the Ministry, a discretion to be satisfied that a person is recognised as a refugee in the absence of a final determination under Part 5 of the Immigration Act. Clearly the Ministry requires a proper basis for being satisfied, or not as the case may be, that a person is recognised
29 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [278] and [288] per Tipping J and [339] per McGrath J
30 Immigration Act 2009, ss 125 and 127.
31 Section 129; and see MA v Attorney-General [2009] NZCA 490 at [2].
as a refugee,32 but s 74A(1A)(b) confers no discretion on the Ministry to effectively recognise refugee status itself, which in practical terms is what the appellants’ argument would entail.
[64] Mr Fraser’s submission that, when exercising its ostensible discretion, the Ministry can have regard to whether a claim for recognition as a refugee has been accepted under s 134 of the Immigration Act does not advance the appellants’ argument. If the mere acceptance of a claim for recognition as a refugee provided a sufficient basis for the Ministry to be satisfied that a person is recognised as a refugee, not only would s 74A(1A)(a) be rendered redundant but the legislative purpose of limiting entitlement to benefits to refugee claimants who are lawfully present in New Zealand would be subverted.
Summary
[65] The expressions “unlawfully resident or present in New Zealand” and “lawfully resident or present in New Zealand” are to be interpreted by reference to the meaning of “unlawfully in New Zealand” in s 9 of the Immigration Act. The lawfulness of the presence in New Zealand of a claimant for refugee status who has overstayed her or his visa is to be determined in the same way.33 This is supported by the approach adopted by Potter J in Rajabian and subsequently endorsed by the Court of Appeal in Aziz.34
[66] At the time they applied for emergency benefits, the appellants were not lawfully present in New Zealand. Consequently, they were not entitled to receive a benefit as they did not fall within the statutory prerequisite for entitlement established by s 74A(1A)(a).
32 This proper basis is likely to be found in information the Ministry obtains from immigration officials pursuant to s 298 of the Immigration Act 2009, which expressly provides for the provision of information relating to “a person who has made a claim for recognition, or has been recognised, as a refugee or a protected person” – s 298(4)(d).
33 I do not determine whether a different interpretation of s 74A(1A)(a) of the Social Security Act might be available for other claimants for refugee status who are unlawfully in New Zealand within the meaning of s 9 of the Immigration Act 2009 but who are lawfully staying in New Zealand pursuant to art 24(1)(b) of the Refugee Convention.
34 See above, at [41].
Result
[67]The answer to the following question is “no”:
Did the Authority err in law in determining that, because the appellants were not lawfully present in New Zealand and had not been recognised as refugees, they were therefore not entitled to an emergency benefit pursuant to s 74A(1A) of the Social Security Act 1964?
[68]The appeal is accordingly dismissed.
[69] Having succeeded, the respondent is entitled to scale costs for a category 2 proceeding on a band B basis together with reasonable disbursements, to be fixed by the Registrar in the event of dispute.
Karen Clark J
Solicitors:
Crown Law, Wellington for Respondent
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