A16.2 Operations instruction: exercise of discretionary powers...

A16.2 Operational instruction: exercise of discretionary powers under the Immigration Act 1987 in response (at the time of their arrival and subsequently) to persons claiming refugee status at the border

1. Introduction

1.1

This operational instruction provides guidance to immigration officers concerning the continuing treatment of persons claiming refugee status on arrival at the border. In particular it is intended to inform decisions made by immigration officers at the border and subsequently about whether to detain or otherwise restrict the freedom of movement of persons claiming refugee status. It rescinds previous operational instructions on this subject.

1.2

The overriding principle behind the operational instruction is that, if the freedom of movement of persons claiming refugee status at the border is to be restricted at all, then it should be restricted to the least degree and for the shortest duration possible. Particular care must be given in any decision involving women (particularly pregnant women and adolescent girls), children and members of other vulnerable groups.

1.3

The Operational Instruction has been drafted having regard to the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999), and the Court of Appeal’s 16 April 2003 Decision in Refugee Council and Ors v AG.

2. Background

2.1

The Immigration Act 1987 contains various discretionary powers that may be exercised by immigration officers in relation to non-New Zealand citizens or residents arriving at New Zealand’s border. The spectrum of responses ranges from admission to New Zealand with an immigration permit to detention in a penal institution until departure from New Zealand can be arranged on the first available flight. In all cases a decision to detain in a penal institution rather than any lesser form of restriction on the freedom of movement of a refugee claimant is considered only after all other alternatives have been excluded.

2.2

The full range of possible responses is as follows:

1. The grant of a permit under s35 where the person is able to lodge an application in accordance with s25 (ie. they hold a valid visa or have arrived visa free);
2. The grant of a permit under s35A where the person is not able to lodge an application;
3. Release into the community without the grant of a permit;
4. Initial detention under s128(5) for the purpose of release into the community on conditions under s128AA;
5. Initial detention under s128(5) for the purpose of obtaining a warrant for further detention in an approved premises under s128(7);
6. Initial detention under s128(5) for the purpose of obtaining a warrant for further detention in a penal institution under s128(7).

2.3

The responses are to be exercised taking into account the individual circumstances of the persons presenting at the border. The responses are not static. It may be appropriate throughout the duration of a person’s presence in New Zealand for an immigration officer to revisit an initial exercise of their power to ensure that their decision remains appropriate in view of any changed circumstances (including the simple passage of time). This is particularly the case where a person remains subject to restrictions on their freedom of movement (including being released on conditions). Those restrictions must continue to be able to be justified as ‘necessary’. It may, for example, be appropriate for a person initially detained in a penal institution to be moved to an approved premises. A person detained at an approved premises might be released on conditions or released into the community with an immigration permit. Or it may be appropriate for a person previously released on conditions to be taken back into custody to be detained at an approved premises or in a penal institution.

3. Restricting movement of refugee status claimants

Convention Analysis

3.1

Where a person arrives in New Zealand from another country and on arrival claims refugee status under the 1951 United Nations Convention Relating to the Status of Refugees (the Refugee Convention), care must be exercised in determining the appropriate immigration response. This is especially important where the response involves possible detention under s128(7) in a penal institution or at an approved premises. There are a number of reasons for this:

1. Commitment to a system of asylum, as being a Party to the Refugee Convention entails, requires all persons claiming asylum to be treated carefully and with sensitivity at all stages of the process. This is especially important where it is proposed that restrictions on freedom of movement be imposed, particularly restrictions involving detention;
2. The effect of custody in a penal institution can be traumatic for some genuine claimants;
3. Section 129X(2) of the Immigration Act requires immigration officers to have regard to the provisions of the Refugee Convention in carrying out their functions. In accordance with Article 31 of the Refugee Convention and also with the UNHCR Guidelines on Detention, it is accepted that restrictions on freedom of movement of refugees, in particular by detention (including detention of refugee status claimants) should occur only where ‘necessary’. In particular Article 31 states:

   Article 31: Refugee Unlawfully in the Country of Refuge

   The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

   The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restriction shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period of time and all the necessary facilities to obtain admission into another country.

   Therefore, not only should restrictions on freedom of movement occur only where ‘necessary’, but the level of restriction on freedom of movement should be as minimal as possible, appropriate to the circumstances of the particular case.

   Section 129X(1) provides that no person who is a refugee status claimant (or who has been recognised as a refugee) may be removed or deported from New Zealand unless such removal or deportation is permitted in terms of Articles 32.1 or 33.2 of the Refugee Convention. Because processing claims to refugee status, and appeals, may not be straightforward, claimants held in detention may potentially be detained for a considerable period of time.

Restrictions on Freedom of Movement

3.2

However, there will be circumstances where restricting the movements - including by detention in a penal institution - of a person who claims refugee status at the border is ‘necessary’, particularly where issues of national security or public order arise. Whether placing restrictions on freedom of movement (in particular detention) is ‘necessary’ will depend on a careful assessment of all factors relevant to the arrival. These may include the extent to which that person is able to provide accurate and reliable information about their identity, whether the claim appears to be made in good faith, and the extent to which there are identified risks to national security and public order. An assessment of any risk to public safety, security, and order will need to take account of the prevailing security situation, both in New Zealand and globally. Whether the person arrived as part of a group which arrived unlawfully, or was involved in organised smuggling of illegal migrants may be a factor in determining whether restriction on freedom of movement (in particular detention in a penal institution) is ‘necessary’. Smuggled migrants must not, however, be automatically subject to detention.

Judgement

3.3

The ‘necessary’ standard will vary according to the type of restriction on freedom of movement to be applied. The UNHCR Guidelines on Detention recognise a distinction between detention in a prison environment and accommodation at an open centre with some restrictions on freedom of movement. The Guidelines also recognise a distinction between detention and release into the community with reporting conditions. Individual immigration officers must, therefore, make judgements taking into account a cumulative set of considerations:

1. Immigration officers are first to consider whether any restriction at all on a refugee status claimant’s freedom of movement is ‘necessary’ or whether the officer may grant the claimant a permit and release them into the community unrestricted.
2. If no permit is granted then officers are next to consider whether release of the claimant on conditions can manage the identified risks.
3. If the identified risks cannot be managed by this means, immigration officers are to consider whether accommodation at the Mangere Accommodation Centre can manage those risks.
4. If not then detention in a penal institution may be considered ‘necessary’.

3.4

As noted, all decisions are based on a careful, individual assessment of the circumstances of each case, and a decision must not restrict freedom of movement more than is ‘necessary’. All decisions involving any form of restriction on freedom of movement must be lawful and in accordance with international standards. An immigration officer making a decision to restrict freedom of movement should record all of the matters considered in reaching it. All decisions to restrict the freedom of movement of a refugee status claimant are also subject to built in safeguards, by way of administrative or judicial review. These review processes are described in Appendix A.

3.5

An indicative list of considerations has been drawn up to guide decisions by immigration officers as to whether in a particular case any restrictions on freedom of movement are ‘necessary’, and if so, the type of restriction which that may be ‘necessary’. This is attached as Appendix B.

4. Children and young persons under 18 years of age

4.1

Under the Immigration Act an immigration officer may apply a discretionary power in respect of a child or young person under 18 years of age who has (or, if accompanied, whose parent/s have) claimed refugee status. In this situation, where any restriction on freedom of movement is being considered, the additional principles set out below, apply. These principles are in accordance with the UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (February 1997) and the United Nations Convention on the Rights of the Child:

1. The best interests and welfare of a child or young person shall be the primary consideration;
2. A child or young person is entitled to such measures of protection as are required given their status as a minor;
3. A child or young person is entitled to receive appropriate protection and humanitarian assistance in pursuing their claim to refugee status;
4. A child or young person is not to be separated from their parent(s) against their will, except where such separation is necessary for the best interests and welfare of the child or young person;
5. In the case of a child or young person under 18, there must be a responsible adult to represent their interests, in accordance with, and as defined in, section 141B of the Immigration Act, before any decision regarding restrictions on that child or young person’s freedom of movement is made;
6. A child or young person is entitled to express their views regarding any proposed restriction on their freedom of movement, either personally or through a responsible adult. Due weight is to be given to those views having regard to the age and level of maturity and understanding of that child or young person;
7. The detention of a child or young person is only to be used as a measure of last resort and for the shortest appropriate period of time; and
8. A child or young person should not be detained with adults unless it is considered in that child or young person’s best interests and welfare to do so (for example if this is the only way to preserve family unity). It is recognised, however, that due to the number of suitable facilities, in some cases detention with adults will be unavoidable.

4.2

On the basis of these principles, as a general rule children and young persons under 18 years of age should not be detained, and it would only be in extenuating circumstances that their detention in a penal institution could be justified as necessary. As a general rule, an unaccompanied child or young person under 18 should not be detained. Any restriction on the freedom of movement of an unaccompanied child or young person under 18 years of age should only occur after the Department of Child Youth and Family (CYF) has been involved, either in the role of responsible adult, or otherwise.

4.3

As a minimum, any restriction on the freedom of movement of an accompanied child or young person under 18 years of age should be notified to CYF as soon as practical after that detention has occurred.

5. Officers authorised to exercise discretionary powers

5.1

Only those immigration officers listed in Appendix C, (as may be amended by the Chief Operating Officer from time to time), are authorised:

• to determine whether detention under section 128 of the Immigration Act of a person who is a refugee status claimant is justified as ‘necessary’;
• to apply for or give consent to the release on conditions of a refugee status claimant under section 128AA of the Immigration Act;
• or to grant a permit under section 35A of the Immigration Act to a claimant who has been detained and/or released on conditions.

Andrew Lockhart
General Manager
New Zealand Immigration Service

APPENDIX A

PERIODIC REVIEW OF RESTRICTIONS ON FREEDOM OF MOVEMENT

1. Administrative Review Processes

1.1

Any decision restricting the freedom of movement of a refugee status claimant must not only be justified as ‘necessary’ at the time of the decision, but that restriction must continue to be justified as ‘necessary’. Individual’s circumstances can change with the passage of time. Restrictions on freedom of movement that are ‘necessary’ for shorter periods of time may not meet the ‘necessary’ test over a longer period.

1.2

At the time of a person’s arrival in New Zealand there may be limited time and information available to inform a decision that affects a claimant’s freedom of movement. A more conservative approach to the guidelines set out in Appendix B may be appropriate. Often, however, further information will become available over the next 10 -14 days that may be relevant to the initial decision to restrict a person’s freedom of movement. This may include information regarding the identity of the claimant such as:

1. documents and further information provided by the claimant regarding their identity;
2. a credibility assessment concerning identity by a Refugee Status Branch officer following an interview of the claimant;
3. information from a superintendent of a penal institution or the person in charge of the Mangere Accommodation Centre about the identity of a person and any identified risks that they present in terms of criminal offending, absconding or to national security and public order;
4. any relevant information provided by the Police or security services.

1.3

For claimants in detention, a review of the grounds justifying detention should occur as soon as practical after any new evidence or information emerges about the claimant, or 14 days after detention at the latest. If detention is determined at that stage no longer to be ‘necessary’ then the immigration officer must decide whether to apply for the claimant’s release on conditions under s128AA, or to release them with a permit under section 35A. This is preferable to waiting until the initial 28 day period expires, when the matter will be subject to mandatory judicial review by a judge.

1.4

Immigration officers should also continue to monitor the circumstances of claimants released on conditions. A review of the appropriateness of that release should occur as soon as practical after any new evidence or information emerges or is provided about the claimant, and immigration officers should continue to monitor these cases.

1.5

In conducting a review immigration officers may obtain information about the claimant and the claim from a variety of sources, including the Refugee Status Branch (RSB) of the INZ. Without compromising its ability to carry out a full and fair assessment of the claim, the RSB may be in a position to offer factual advice about the circumstances of the claimant (including their identity and nationality) and about the relative strength or weakness of the claim. Where the RSB has declined refugee status, that fact itself may have a bearing on any review of the necessity for continued restrictions on the claimant’s freedom of movement.

2. Judicial Review Processes

i. Extensions or Further Extensions of the s128(7) Warrant of Commitment

2.1

The Immigration Act provides for periodic judicial review of the detention of all persons detained under s128(7) in either a penal institution or an approved premise, regardless of whether or not they have claimed refugee status. The review is in the form of a requirement for continued detention, beyond an initial 28 day period, to occur at the discretion of a District Court Judge on application by an immigration officer - generally in 7 day cycles. The question of the extension or further extension of the original warrant of commitment in the case of a refugee status claimant, was discussed by Justice McGrath in the Court of Appeal in the case of Refugee Council and Ors v AG. He stated:

“Section 128(13B) confers a discretion in the Judge, who has to be satisfied, explicitly, that s128 continues to apply. This judicial discretion recognises the opinion expressed by the Executive Committee that detention measures in respect of refugees should be subject to review, albeit following expiry of the initial 28 day period. This discretion is broadly expressed and not qualified by a requirement that the Judge has to have regard to the provisions of Article 31.2, although clearly it is appropriate to do so (see the discussion in E at paras [38] and [39]). In exercising the discretion in any particular instance, the District Court must also have regard to all of the circumstances of the case including the known personal history of the individual, the nature of the detention and any relevant legitimate concerns drawn to the Judge’s attention concerning public safety, and security in the international environment.”

2.2

It is therefore particularly important that immigration officers, when preparing the required s128(13A) application, present all of the circumstances of the case, and that the application justifies as ‘necessary’ the continued detention of the claimant in either a penal institution or the Mangere Accommodation Centre.

ii. Application for Release on Conditions

2.3

An immigration officer may at any time apply for release on conditions of a person detained under s128(7). A detainee may also apply for release on conditions when there has been an application for extension or further extension of their detention. Release on conditions is ultimately a matter for the discretion of a District Court Judge.

2.4

Orders for release on conditions must be made subject to particular statutory conditions (eg place of residence, frequency and manner of reporting), and can be made subject to other conditions the Judge thinks fit to impose. Immigration officers have a role in informing the way in which the statutory conditions are applied and in assisting in the imposition of any judicial conditions. The conditions imposed should be no more than are ‘necessary’ to manage the risks associated with the claimant.

iii. Cancellation of Release on Conditions

2.5

A District Court Judge may cancel an order for release on conditions where the person breaches the conditions imposed, or on application by an immigration officer. Where a person breaches the statutory conditions there is a presumption of continued detention unless the person concerned can provide a reasonable excuse for the breach. An application for cancellation by an immigration officer must include the reasons why detention in a penal institution or at the Mangere Accommodation Centre is ‘necessary’.

iv. Habeas Corpus and Judicial Review

2.6

Persons subject to detention under s128(7) or released on conditions under s128AA may apply at any time to the High Court for judicial review of any decision by an immigration officer or a District Court Judge to detain them or release them on conditions.

2.7

Persons detained pursuant to s128(7) may also apply to the High Court in accordance with the Habeas Corpus Act to have the lawfulness of their detention determined by a High Court Judge. Such applications must be heard and determined in precedence to all other matters.

APPENDIX B

INDICATIVE LIST OF CONSIDERATIONS WHICH MAY GUIDE DECISIONS ABOUT Restriction on Freedom of movement (at the time of their arrival and subsequently) of Persons claiming refugee status at the border

Any decision to impose any level of restriction on the freedom of movement of the individual, and the level of restriction of movement that is to be imposed, remains a matter for careful judgement by the officer concerned after weighing up all relevant circumstances of the case. For example, with regard to the factors listed below, the absence of valid travel documents is just one factor which may be taken into consideration when making a decision whether or not to impose any level of restriction of movement. There is no predetermined view that an asylum claimant without valid travel documents, or whose documents have been destroyed, should be treated as high risk, as it is recognised that individuals with legitimate claims to refugee status may have to resort to such measures to escape a well founded fear of persecution. A critical factor, particularly in considering whether detention in a penal institution is necessary, (and in line with the UNHCR Guidelines on Detention), is the existence of an intention to mislead the authorities of the State in which they wish to claim asylum. In all cases a decision to detain in a penal institution rather than any lesser form of restriction on the freedom of movement of a refugee claimant is considered only after all other alternatives have been excluded. (See footnote at bottom of page)

Section 4.1 of this Operational Instruction, sets out the special principles that apply in relation to decisions affecting the freedom of movement of children and young persons under 18. Special consideration is also to be given to the treatment of other vulnerable groups, including women (especially pregnant women and adolescent girls), the elderly, the disabled, and torture or trauma survivors, in line with the relevant UN human rights instruments and UNHCR guidelines.

i. Considerations which may inform a decision to grant a permit and release into the community

1. The refugee status claimant has valid travel documents. There are no concerns as to the claimant’s identity (including nationality) or risks to national security or public order. There no concerns as to the claimant criminally offending or absconding (including for example, where a preliminary interview by an RSB officer discloses that a claim is brought in good faith);
2. The circumstances outlined above apply but the claimant has no valid travel documents. However there would be no delay or difficulty in obtaining such documents in the event that the claim is declined;
3. The claimant is otherwise able to enter the community unrestricted, particularly in the case of a member of a vulnerable group including women (particularly pregnant women and adolescent girls), children, the elderly, the disabled, and torture or trauma survivors.

ii. Considerations which may inform a decision to release into the community on conditions

1. The identity (including nationality) of a refugee status claimant cannot be ascertained to the satisfaction of an immigration officer but the officer is satisfied that the claimant presents a low risk of criminal offending, absconding or otherwise posing a risk to national security and public order;
2. A preliminary assessment of a refugee status claimant’s claim by an RSB officer suggests that the claim may not be brought in good faith and for this reason an immigration officer cannot be satisfied that there is no real risk of the claimant absconding;
3. A refugee status claimant has no valid travel and/or identity document [and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee status is declined].

iii. Considerations which may inform a decision to require residence at Mangere Accommodation Centre

1. The identity (including nationality) of a refugee status claimant cannot be ascertained to the satisfaction of the INZ and the risks presented by the claimant in terms of criminal offending, absconding or to national security and public order cannot be ascertained;
2. There is a clearly identified risk of a refugee status claimant criminally offending, absconding or otherwise posing a risk to national security or public order but that risk can be managed by the claimant being required to reside at the Mangere Accommodation Centre;
3. A refugee status claimant has arrived as part of a group of 10 or more persons who have also arrived unlawfully, and it is not appropriate for them to be released into the community on conditions;
4. A refugee status claimant has no valid travel and/or identity document and there may be delay or difficulty in obtaining those documents in the event that their claim to refugee status is declined, and requiring the claimant to reside at Mangere is otherwise necessary given the risks associated with them;
5. A preliminary assessment of a refugee claimant’s claim by an RSB officer suggests the claim is clearly not brought in good faith, or not related to the criteria for the granting of refugee status laid down in the Refugee Convention nor any other criteria justifying the granting of refugee status, and requiring the claimant to reside at the Mangere Accommodation Centre is otherwise necessary given the risks associated with them;
6. A refugee status claimant has already had a claim to refugee status substantively declined in New Zealand, or another Convention Country that offers effective protection according to the Lisbon principles, and requiring the claimant to reside at the Mangere Accommodation Centre is otherwise necessary given the risks associated with them. However, if there were evidence that the claim was unfairly rejected (including new circumstances not being properly considered) this should be taken into account.

iv. Considerations which may inform a decision to detain in a penal institution

A refugee status claimant is a person to whom section 7(1) of the Act applies, or detention is otherwise required to protect national security or public order;

1. There is reason to suspect that a refugee status claimant is a person to whom section 7(1) applies but their section 7(1) status cannot be immediately ascertained. This is especially in the case of a group arrival situation where there may be good reason to suspect some of those people of being involved in people smuggling;
2. It is necessary to verify the identity of a refugee status claimant where identity cannot be ascertained, particularly if identity may impact on the application of section 7(1) of the Act. Again this is especially relevant in the group arrival situation where there may be reason to suspect some of those arriving of being involved in people smuggling and the risks in failing to properly ascertain identity are high;
3. There are strong grounds to believe that a refugee status claimant has destroyed or otherwise disposed of their travel and/or identity documents with the intention of misleading INZ officials as to the details of their travel and/or identity;
4. A refugee status claimant has used fraudulent documents in order to mislead INZ officials (for example the claim to refugee status follows detection of the fraud by officials or the Police);
5. There is a clearly identified risk of a refugee status claimant criminally offending, absconding or otherwise threatening national security and public order and that risk cannot be managed by the claimant being required to reside at the Mangere Accommodation Centre;
6. A preliminary assessment of a refugee claimant’s claim suggests the claim is clearly not brought in good faith, or not related to the criteria for the granting of refugee status laid down in the Refugee Convention nor any other criteria justifying the granting of refugee status, and detention in a penal institution is otherwise necessary given the risks associated with them;
7. A refugee status claimant has already had a claim to refugee status substantively declined in New Zealand, or another Convention Country that offers effective protection according to the Lisbon principles, and the risks associated with the claimant cannot be managed by their being required to reside at the Mangere Accommodation Centre. However, if there were evidence that the claim was unfairly rejected (including new circumstances not being properly considered) this should be taken into account.

APPENDIX C

OFFICERS AUTHORISED TO EXERCISE DISCRETIONARY POWERS

1. Part 1: Immigration officers who are authorised to determine whether detention in a penal institution of a person who is a refugee status claimant is justified as ‘necessary’, to apply for or consent to the release on conditions of a refugee status claimant from a penal institution, or to grant a permit under section 35A to a refugee status claimant detained in a penal institution are:
   • Bernard Maritz
   • Terri Bentley
   • Pat McAlpine
   • Janene Smith
2. Part 2: Immigration officers who are authorised to determine whether detention at the Mangere Accommodation Centre of a person who is a refugee status claimant is justified as ‘necessary’, or to apply for or consent to the release on conditions of a refugee status claimant from the Mangere Accommodation Centre, or to grant a permit under section 35A to a refugee status claimant detained at the Mangere Accommodation Centre are:
   • Those immigration officers listed in Part 1.
3. Part 3: Immigration officers who are authorised to grant a permit under section 35A to a refugee status claimant who is released on conditions are:
   • Those immigration officers listed in Part 1.

Effective 27/07/2009

Footnote to A16.2 Appendix B (1)

These include the 1989 Policy and 1991 Guidelines on the Protection of Refugee women and the 1995 Sexual Violence against Refugees: Guidelines on Prevention and Response (as updated in 2003).