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the claimant's return to their country of origin. These powers of enquiry were important considering the unique nature of the cases the body was dealing with. The RSAA interpreted ‘well-founded fear’ as meaning a ‘real chance’ that persecution would occur. This was to avoid formulating possibilities that may not eventuate. If the RSAA decided there was a real chance of persecution, they would then have to establish whether this fear was due to a reason outlined in the
Refugee Convention. The second element of a successful claim was for the appellant to establish the
382:. The ship he was working on sank after it was fired upon by the Indian Navy. The claimant was charged with firing upon Indian Navy ships and was imprisoned in India for three years. Upon his release, he and his wife came to New Zealand claiming refugee status. The RSAA denied him refugee status due to his potential involvement in
390:. At the Supreme Court of New Zealand, the court ruled that there was not enough evidence that the claimant had been involved in a war crime or crime against humanity to put him under the exclusion clause contained in article 1F of the Refugee Convention. His appeal was allowed, and case re-emitted to the RSAA.
80:
The authority was established to work as an independent appellate body. The RSAA was headed by the chairman who had the discretion to appoint people to hear appeals as he saw fit. The
Immigration Act stated the Chairperson “is responsible for making such arrangements as are necessary or desirable to
398:
The RSAA was replaced by the
Immigration and Protection Tribunal (IPT) on November 29, 2010. The IPT was established by section 217 of the Immigration Act 2009. The IPT subsumed four bodies that were formally, the Residence Review Board, Removal Review Authority, Refugee Status Appeals Authority and
352:
the
Supreme Court established that it was the role of the Minister of Immigration and not the Inspector-General to determine whether Zaoui was a threat that should be removed from New Zealand. The Zaoui case reached a conclusion in September 2007, when the SIS withdrew their objections and Zaoui was
93:
For a claim to be successful, the claimant had to establish a "well-founded fear of persecution" by fulfilling the standard of proof. To determine whether this standard had been met, the RSAA had the powers of the
Commission of Enquiry to verify facts and produce likely scenarios that may occur upon
363:
This appeal case involved the third appeal of an
Iranian claimant who had converted to Christianity. The first appeal was unsuccessful due to issues of credibility and the second appeal was unsuccessful due to his provision of false documentation. His case attracted media attention during his time
120:
The RSAA had an interesting legal status. The
Refugee Convention was not incorporated into New Zealand domestic law, but a framework was inserted in section 129A of the Immigration Act 1987 which emphasised full compliance with the Refugee Convention. This meant that the RSAA could completely focus
84:
The RSAA was governed by sections 129N – 129Z of the
Immigration Amendment Act 1999. The two main functions were: “to hear appeals brought under section 129O from determinations by RSO’s not to recognise a claimant as a refugee”; and “to make determinations in relation to a person's refugee status
76:
allowed the body to hear and decide any appeal by a person who had been declined refugee status by a
Refugee Status Officer (RSO). The RSAA also made decisions regarding direct applications, cancellation of refugee status when the Refugee Convention may have no longer applied, and when recognition
262:
the claimant had divorced her abusive husband and had rediscovered her child he had adopted out without her knowing. If she had been returned to Iran, she would have been subjected to death or imprisonment. In both of these cases the RSAA used human rights approaches to decide that in some cases
294:
The gender discrimination cases were also ground-breaking because they established that persecution was "serious harm + failure of state protection". Both of these elements must be present for there to be refugee status. However, only one of these grounds needs to have a nexus with the
Refugee
209:
since his arrival in New Zealand. He was originally from Iran and it was well established that homosexuality would be punished if he was sent back home. The RSAA had to decide whether having a certain sexual orientation constituted a membership of a particular social group. The RSAA held that
368:. The media attention meant that Iran became aware of the claimant's conversion, putting him in danger if he did return home. The RSAA decided the third appeal in the claimant's favour due to a well-founded fear of persecution on the grounds of religion.
253:
the claimant was not a virgin and if she was returned home and forced to marry, this could have potentially resulted in her death. The claimant in this case had also undergone a ‘self-awareness process’ that made her opposed to the oppression of
154:
A successful claimant must have shown that their state of origin had failed or will fail to prevent a real chance of persecution. In order to clear up this confusing area, the RSAA added four criteria, which Doug Tennant summarised as being:
299:
a link with the Refugee Convention could only be found with the failure of state protection. The RSAA held that a link with one of the constructs was sufficient for refugee status. This approach was followed by the Australian High Court in
623:
Fatma E Marouf “The Emerging Importance of ‘Social Visibility’ in Defining a ‘Particular Social Group’ and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender” (2008) 27 Yale Law and Policy Review 47 at
184:
to determine a particular social group by identifying crucial factors of an individual's identity or conscience. This is referred to as a “protected characteristic.” The RSAA made high-profile decisions concerning
51:
The RSAA was composed of a chairperson and 24 Members (part-time and full-time), all of whom were either legal practitioners or retired judges. The most high-profile case adjudged by the RSAA was that of
141:. Due to its ability to take all of these sources into account, the RSAA was praised for its clarity. This opened up an opportunity for the RSAA to make decisions that were significant internationally.
130:
180:
One of the grounds for being a refugee is membership of a particular social group. The RSAA made numerous important decisions in this area. The RSAA decided to follow the approach in
334:. The Refugee Status Branch of the New Zealand Immigration Service, said there was a well-founded fear of persecution, but refugee status was denied due to evidence given by the
121:
on the convention, and also consider international jurisdictions and scholarship in their decisions. The RSAA used the good faith principle laid out in the article 31
342:. On appeal to the RSAA, refugee status was awarded. However, the security risk certificate that was issued resulted in over two years in detention. In a
346:
decision, Zaoui was successful in being released from detention, indicating that a security risk certificate should not override a RSAA decision. In
77:
of refugee status should cease due to attaining refugee status by forgery, false or misleading information or concealment of relevant information.
41:
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and punishment and right not to marry without full and free consent. The RSAA also took into account Iranian society and its tolerance of
45:
122:
1058:
134:
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in 1991. The RSAA was later given statutory authority on October 1, 1999, in the Immigration Amendment Act 1999. The RSAA's
172:
These criteria put an emphasis on state failure to protect as opposed to the focusing on state complicity to persecution.
1053:
988:
424:
Rolf Driver, Aimee Bradbury “Refugee status Determination in New Zealand and Australia” (2012) September NZLJ 282 at 286.
33:
491:
Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 165-166.
1043:
255:
138:
983:
522:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 168.
833:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 184.
704:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 178.
633:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 173.
593:
Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 172.
575:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 163.
553:
Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 163.
544:
Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 162.
513:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 167.
455:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 161.
415:
Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 160.
263:
being a woman constituted membership of a particular social group. Particular rights that were considered included:
379:
168:
Persecution not condoned or tolerated by state concerned, but present due to refusal or unable to offer protection.
348:
29:
284:
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held that in certain circumstances being a woman can amount to being a member of a particular social group. In
953:
343:
335:
48:. The decisions of the RSAA are not binding, but have had a significant impact on refugee jurisprudence.
958:
935:
Judge Hastings First Annual Report (Immigration and Protection Tribunal, Annual Report 2010/2011) at 1.
1048:
323:
446:
AR Mackey Annual Report to 30 June 2010 (Refugee Status Appeals Authority, Annual Report 2010) at 1.
387:
215:
1023:
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1028:
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190:
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433:
UNHCR – The UN Refugee Agency “New Zealand: Refugee Status Appeals Authority” Refworld <
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Gave the "benefit of doubt" to the claimant when facts or scenarios could not be determined.
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received a lot of media attention in New Zealand since it was the first time a New Zealand
98:
of the claim. This was to prevent the decision-maker abusing the power of having the onus.
948:
8:
1013:
276:
881:
Christine Brichenstein “An Evaluation of the Zaoui Case” (2009) October NZLJ 356 at 357.
872:
Christine Brichenstein “An Evaluation of the Zaoui Case” (2009) October NZLJ 356 at 357.
863:
Christine Brichenstein “An Evaluation of the Zaoui Case” (2009) October NZLJ 356 at 356.
339:
272:
186:
36:
in 2010. New Zealand established the RSAA as part of its responsibility to uphold the
24:, was an independent authority that heard the appeals of people who had been declined
291:
and the denial to recognise women as human beings possessing the same status as men.
288:
211:
210:
homosexuality was a particular social group. The Authority was guided by writings by
65:
326:
was awarded. When Zaoui first arrived in New Zealand, he claimed asylum following a
973:
264:
902:
Johanna Commins “Good Faith in the Immigration Act” (2011) April NZLJ 103 at 104.
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ensure the orderly and expeditious discharge of the functions of the Authority.”
37:
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1037:
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268:
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to interpret the Refugee Convention. The RSAA also looked to international
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1024:
Convention on the Elimination of All Forms of Discrimination against Women
131:
Convention on the Elimination of All Forms of Discrimination against Women
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Maintained a low threshold for proving of a ‘real chance’ of persecution.
53:
1003:
193:
as particular social groups for the purposes of the Refugee Convention.
998:
383:
206:
144:
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in prison awaiting his deportation to Iran when he started religious
854:
Claudia Geriringer “Zaoui Revisited” (2005) August NZLJ 285 at 285.
365:
331:
280:
25:
786:
International Covenant on Civil and Political Rights article 23.
768:
International Covenant on Civil and Political Rights article 18.
750:
International Covenant on Civil and Political Rights article 17.
777:
International Covenant on Civil and Political Rights article 7.
759:
International Covenant on Civil and Political Rights article 6.
693:
Regina v Immigration Appeal Tribunal + another ex parte Shah AP
231:
Regina v Immigration Appeal Tribunal + another ex parte Shah AP
968:
602:
Convention Relating to the Status of Refugees article 1A(2).
584:
Convention Relating to the Status of Refugees article 1A(2).
822:
Minister for Immigration and Multicultural Affairs v Khawar
999:
Convention and Protocol Relating to the Status of Refugees
434:
221:
This approach towards sexual orientation was cited by the
378:
The claimant was an engineer on a ship that was owned by
338:(SIS) that indicated Zaoui's involvement in criminal and
116:
Relationship with the Refugee Convention and human rights
101:
The RSAA operated according to the following principles:
85:
on applications made by RSO’s under section 129L(1)(f)."
59:
812:
1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(f).
799:
1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(f).
741:
1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(f).
671:
1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(e).
658:
1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(e).
394:
Replacement by the Immigration and Protection Tribunal
175:
32:. It was established in 1991, and was replaced by the
1009:
International Covenant on Civil and Political Rights
959:
Immigration and Protection Tribunal Official Website
504:
1st edition, Lexis Nexis, Wellington 2010 at 9.1.5.
145:
Contribution to international refugee jurisprudence
984:Immigration and Protection Tribunal Annual Reports
111:Conducted proceedings in a non-adversarial manner.
566:1st edition, Lexis Nexis, Wellington 2010 at 2.8.
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681:Islam Secretary of State for the Home Department
227:Islam Secretary of State for the Home Department
535:1st edition, Lexis Nexis, Wellington 2010 at 2.
149:
42:Convention relating to the Status of Refugees
40:as a result of being a signatory of the 1951
989:Ref World | Refugee Status Appeals Authority
18:New Zealand Refugee Status Appeals Authority
464:Clause 2, Schedule 3C Immigration Act 1987.
356:
218:and human rights to come to this decision.
28:status by the Refugee Status Branch of the
924:Tamil X v Refugee Status Appeals Authority
912:Tamil X v Refugee Status Appeals Authority
482:Immigration Amendment Act 1999 s129(2)(b).
473:Immigration Amendment Act 1999 s129(2)(a).
56:, whose appeal was eventually successful.
994:UNHCR: UN Refugee Agency Official Website
165:Persecution tolerated by state concerned.
159:Persecution committed by state concerned.
1014:Vienna Convention on the Law of Treaties
969:New Zealand Refugee Law Official Website
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162:Persecution condoned by state concerned.
123:Vienna Convention on the Law of Treaties
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1019:Convention on the Rights of the Child
1004:Universal Declaration of Human Rights
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205:the claimant had become a practicing
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135:Convention on the Rights of the Child
60:Jurisdiction and statutory authority
845:1 NZLR 690 (CA), 1 NZLR 289 (SCNZ).
695:(1999) 2 WLR 1015 (House of Lords).
279:, the right not to be subjected to
176:Member of a particular social group
34:Immigration and Protection Tribunal
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353:allowed to remain in New Zealand.
139:International Bill of Human Rights
129:treaties for guidance such as the
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399:the Deportation Review Tribunal.
612:Canada (Attorney General) v Ward
380:Liberation Tigers of Tamil Eelam
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810:“Immigration and Refugee Law”
797:“Immigration and Refugee Law”
739:“Immigration and Refugee Law”
669:“Immigration and Refugee Law”
656:“Immigration and Refugee Law”
564:“Immigration and Refugee Law”
533:“Immigration and Refugee Law”
502:“Immigration and Refugee Law”
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964:Refugee/Protection Decisions
683:Reported as Re GJ INLR 387.
295:Convention. For example, in
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336:Secret Intelligence Service
150:Failure of state protection
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1054:Immigration to New Zealand
1029:Convention against Torture
726:Refugee Appeal No 71427/99
714:Refugee Appeal No 2039/93
297:Refugee Appeal No 71427/99
260:Refugee Appeal No 71427/99
247:Refugee Appeal No 71427/99
1044:Refugee aid organizations
979:RefNZ RSAA Annual Reports
824:(1997) 190 CLR 225 (HCA).
643:Refugee Appeal No 1312/9
324:security risk certificate
251:Refugee Appeal No 2039/93
243:Refugee Appeal No 2039/93
203:Refugee Appeal No 1312/93
358:Refugee Appeal No. 76204
256:women in Iranian society
891:Refugee Appeal No 76204
435:http://www.refworld.org
388:crimes against humanity
216:Supreme Court of Canada
237:Gender discrimination
214:, the US Courts, the
191:gender discrimination
716:(12 February 1996).
340:terrorist activity
308:High profile cases
273:freedom of thought
197:Sexual orientation
187:sexual orientation
66:prerogative powers
974:RefNZ Case Search
728:(16 August 2000).
645:(30 August 1995).
289:domestic violence
275:, conscience and
212:James C. Hathaway
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1038:Categories
914:2 NZLR 73.
614:2 SCR 689.
403:References
384:war crimes
314:Zaoui case
283:or cruel,
207:homosexual
70:(Cabinet)
277:religion
137:and the
44:and the
366:fasting
332:Algeria
281:torture
26:refugee
302:Khawar
267:, the
133:, the
437:>.
258:. In
241:Both
245:and
229:and
189:and
182:Ward
96:onus
22:RSAA
16:The
624:56.
386:or
330:in
225:in
201:In
20:or
1040::
304:.
271:,
233:.
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