Immigration and Refugee Law in New Zealand Essay

Introduction

Once a refugee has received acceptance in New Zealand, they qualify for a permanent residency, although they could also apply to be awarded citizenship. The laws in New Zealand have always been somewhat friendly to refugees. For example, way before the member countries of the United Nations embrace and adopt the 1951 convention on refugees, New Zealand; a signatory member to the UN Convention on refugees was already accepting refugees. In the 1930s, a total of 1100 Jews sought refugees’ status in New Zealand. In 1944, another 837 refugees arrived in New Zealand; a majority of who were children. From 1949 to 1952, Europe sent over 4,500 refugees, all of whom found permanent residency in New Zealand. In 1960, New Zealand complied with the UNHCR Convention (Bagaric, Boyd & Penny 2007). Consequently, the refugee policy comes about due to the flow of obligations courtesy of the 1960 UNHCR Convention, that is to say, the provision of refugees’ protection.

This research study focuses on Ali, a citizen of the Republic of Iran, who sought refugee status in New Zealand, on grounds of political persecution. Upon arrival at the airport in New Zealand, Ali claimed that he was fleeing from political persecution for his support for the “unsuccessful” Iranian candidate in the disputed June 12 2009 elections, Mir Hussein Mousavi. It is on such a basis then, that Ali managed to secure a six months visitor permit while waiting for the processing of his refugee claim. However, upon meeting with Ali, he revealed to this researcher that he had lied to obtain refugee status in New Zealand.

The truth is that for 10 years, Ali has worked with the Basij Militia, which is a pro-government paramilitary group. The Basij was responsible for the arrest and imprisonments of the protestors who were disputing the June elections. Ali has also worked on prisoners’ records, under the direction of Sepah Pasdaran, compiling the files of prisoners that had been incarcerated by Sepah Pasdaran on political grounds. The files that Ali worked for contained information regarding the transfer, admission, release, as well as death details of these political prisoners, Ali has also handled prisoners who signed “confessions” over suspected political activities.

The reason why Ali opted to seek political asylum is that he was not in a position to suddenly withdraw from the Basij, without arousing a lot of suspicion. Fearing for his life over his action, he then decided to seek political asylum here in New Zealand. It is, therefore, the intention of this research paper to explore the circumstances that surround Ali’s intention for filing for refugee status, and whether, the terms that have been stipulated by the Refugee’s Conventions, Article 1 F (a), could exclude one from refugee protection.

An assessment of Article 1F

The Refugee Convention of 1951, as stipulated by the 1951 United Nations explores the refugee’s status. This, along with the 1967 protocol, acts as an instrument of human rights that are quite essential (Feller Türk & Nicholson 2003). Although the drafts for these two documents were informed by the World War Two aftermaths, nevertheless they have proved to be the much-needed restorative mechanism, when it comes to the issue of individuals that are running away from regimes that grossly abuse human rights.

About article 1F (a), this particular clause eliminates individuals that have committed three kinds of crimes that are rather distinct. The first group to be eliminated is under what the clauses call “crime against peace” (Feller et al 2003, made up of individuals that have participated in or planned any form of war that is regarded as unlawful.

On the other hand, Nathwani (2003) has observed by just plainly taking part in “crime against peace”, this, in itself, is not enough ground worth for exclusion. Furthermore, Nathwani has also noted that the clause specifically targets organizers and leaders of ‘crime against peace. In the case of Ali, he was neither an organizer nor a leader. In as much as the organization that he worked for committed crimes that were somewhat against the peace of the ordinary Iranians, nevertheless, Ali was never at the forefront of all these developments. He was only following orders from his superiors, and he also confessed that he did not commit any form of torture to these victims.

Another provision for Article 1F (a) under which an applicant for seeking asylum may fail to be considered is that such a person ought not to have committed a crime that though non-political, is nevertheless deemed serious, outside of that country from which they are seeking for the status of a refugee before they are finally accepted as refugees. Further, the persons seeking refugee status should not have been found guilty of acts that are divergent to the principles and purposes that the United Nations upholds.

However, Colin J Harvey and James C Hathaway, in their article number 34 titled, “Framing Refugee Protection in the New World Disorder” that appeared on the international law journal at Cornell (2001), have opined that broad thrust as regards Article 1F was with the intentions of according legal force to the 1948 ‘Universal Declaration of Human Rights’ (Hathaway 2003), under article 14 (2), that states that an individual’s right to seek for asylum in another country could not be appealed to should there arise a genuine case that involves non-political crimes, or even acts that are in contradiction to the principles and purposes that the united nations so strongly upholds.

The provisions of article 14 assert that to start with, it is a right for everyone to not only seek but also enjoy asylum in a country different from the one an individual is feeling, as a way of escaping a potential prosecution. Furthermore, the article provides that it is not possible to provide this kind of a right when it comes to the issue of genuine persecutions that indisputably stem from nonpolitical crimes or even those acts that are in a complete violation of the principles and purposes that the United Nations upholds (van Krieken 1999).

Similar sentiments have also been echoed by Goodwin-Gill, in his 2007 publication (3rd edition) titled, “The Refugee in International Law”. Goodwin-Gill opines thus: “Being integral to the refugee definition, if the exclusion applies, the claimant cannot be a Convention refugee, whatever the other merits of his or her claim” (Goodwin-Gill 1997). It is important to note here that Article 1 F has sought to rule out “persons” as opposed to “refugees”, as regards the Convention’s benefits, appears to emphasize the fact that the idea of a fear that is well-founded as regards the issue of persecution is somewhat irrelevant and for that reason, there is no need to explore its contents in the presence of Article 1 F (a).

The effects as well as the purpose of Article 1F (a), as provided by the Refugee Convention, is to keep out, from the regime for refugee protection, persons that are otherwise unworthy of such protection. What this implies is that Article 1 F (a) deals with individuals that have taken part in the abuse of other people’s human rights. In New Zealand, as well as other overseas countries, there has been a judicial consideration as regards the phrase, “serious reasons for considering” (Foster 2005). Foster has opined thus: “The words “serious reasons for considering” also, I believe, must be taken, as was contended by the respondent, to establish a lower standard of proof than the balance of probabilities” (Foster 2005). Feller and colleagues (2003) have also sought to draw a parallel with MacGuigan. In New Zealand, the July 31, 1995, case on refugee appeal (No. 1248/93 Re TP) both adhered to and applied Ramerez’s holding to the effect that the term “serious reasons for considering” (Duxbury 2008) ought to be viewed at to arrive at a reduced ‘standard of proof’, as opposed to probabilities balancing. Such a reduced proof of standards got the approval in the ‘S v Refugee Status Appeals Authority [1998] 2 NZLR 301” case. In this case, the exclusions of an individual are based on the fact that such a person could be convicted or charged with a crime that is quite relevant to the issue at hand. Exclusions however happen at a time when serious consideration cases abound, bearing in mind that a relevant act or crime has already been carried out.

It is the position of Carasco (2007) that the definition of the Refugee Convention becomes quite accessible with ease at a time when the elements that are contained in the definition of Article A (2) get incorporated according to the criteria provided therein. These criteria state that a “refugee” ought to be faced with authentic harm, should they return to the country that they are fleeing.

Second, such harm so stipulated requires being one that is serious. Third, the harm needs to be serious, against which a state may not be in a position to offer protection, and need to bear a correlation with the stipulations of the Refugees Convention. Finally, a refugee ought to be unwilling or unable to go back to their country of origin, if not their habitual habitat (Carasco 2007).

Furthermore, the questions of whether or not the claims that a potential refugee makes as they seek to gain asylum is “well-founded”, or lacks credibility, depends for the most part, on the substantiation that such a refugee makes, as they give their evidence (Hathaway 2005). Accordingly, a proper examination of this form of evidence becomes a basic aspect of an efficient and fair asylum assessment procedure.

The fear behind the decision by an applicant to be granted asylum requires being one that is ‘well-founded’. In ‘Adan v Secretary of State for the Home Department’, Lord Slynn stated thus: ‘That well-founded fear must, as I read it, exist at the time his claim for refugee status is to be determined; it is not sufficient as a matter or ordinary meaning of the words of the article that he had such a fear when he left his country but no longer has it’ (Bagaric et al 2007). Even then, such a guide cannot exclude a likelihood of a person utilizing historical fear to act as evidence, and this reflects on a prevailing fear regarding the possibility of persecution.

The term ‘A refugee sur place’ is used about an individual who has gained access to a given country for other reasons, besides asylum claims, but who then afterward seeks asylum as a result of alterations about the prevailing situation on their circumstances, or even country of origin (van Krieken 1999). Such an alteration results in the individual fearing that they would be prosecuted should they decide to go back to their country of origin.

Similarly, this term could also take into account an individual who could have already obtained asylum in a foreign country, but who would be faced with persecution upon going back to their country of origin (van Krieken 1999). Such are the circumstances that surround Ali. By going back to Iran, he would be faced with possible persecution by the Basij militia, the same establishment that he diligently served for 10 years.

As a result of the men’s rea requirement as stipulated by the ‘serious non-political crimes’, the clause of the Refugee Convention, the draft by the commission suggests that there could be several ‘limited exceptions’ (Arakaki 2008) as regards the convention’s principles. One of these limited exceptions provides that there is the possibility of invoking a state of necessity, coercion, or even force majeure. This particular exception is alive to the realization that the absence of intent exists, in which a person could be quite motivated to perpetrate a given act, to overcome imminent and grave peril. In this case, the danger in question ought to be such that “a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong” (Arakaki 2008).

In addition, the predicament in question should not be consistent with or be of an individual’s own making, as they endeavor to invoke this particular exception. There is also the need to ensure that the harm that would be inflicted onto such a person should not exceed the harm that the individual would be faced with, as they allege the coercion (Aleinikoff & Chetail 2003). It is also possible for one to plead “an error of law” on grounds of lacking in terms of knowledge regarding how wrongful the committed act was (Aleinikoff & Chetail 2003). At this point, the case of Zacarias Osorio Cruz comes to mind. It is important to note that the appeal Board that was handing Osorio Cruz case consented and approved this former Mexican army deserter, who had also admitted about his active involvement in close to twenty politically motivated executions, for a period that spanned more than five years.

Ultimately, Osario Cruz had to make a ‘daring escape’, away from the unit that he had diligently served, over what he called “awakening political and moral conscience” (Aleinikoff & Chetail 2003). In effect, Zacharias Osorio fled to Canada, from where he filed for refugee status. By consenting to his claim for consideration as a refugee, thereby granting him asylum, the Board in question failed to emphasize if the kind of crime that Zacarias Osorio had committed was necessary to warrant an admittance of a breach of the law, let alone explore if the assertion by the claimant about “exerting his conscience” had been genuine, before taking part in actions that the Broad has properly categorized as “contrary to the most basic international rules of conduct” (Aleinikoff & Chetail 2003).

Nonetheless, this particular case has also poignantly raised the grave question of whether or not it warranted an added form of execution, whose basis is on utilitarianism. The ruling made by the board, in this case, was vividly informed by the bold step of Osorio Cruz to bring to the fore the various atrocities and crimes against humanity that were being carried out by the army in Mexico, something that no one else had ever done. The ruling held thus:

“In deserting from the army and telling the whole world, as it had never been told before, the story of the atrocities committed by the officers of the government of Mexico, Mr. Osorio Cruz betrayed his oath of obedience, became a traitor in the eyes of some Mexican authorities by displaying his strong political disagreement and, without a doubt, the worst punishment reserved for prisoners holding unpopular political opinions awaited him. This is the reason for his fear” (Aleinikoff & Chetail 2003).

Conclusion

It is not without doubt that Ali committed crimes that though they may not qualify to be regarded as a crime against humanity, nevertheless put the lives of hundreds of Iranians in jeopardy. He confessed to having taken part in the arrest and beating of the rioters that were disputing the controversial June elections, in which the sitting President Ahmedinejad won under suspicious circumstances. Further, Ali confessed that he had been a member of the Basij Militia for 10 years, the pro-government military wing in Iran, credited with causing the arrests and prosecutions of those opposed to the rule of the powers that be. Besides, Ali has also worked with Sepah Pasdaran, whereby he was charged with the responsibility of compiling the files of prisoners that had been incarcerated by Sepah Pasdaran on political grounds.

These files that Ali worked for contained information regarding the transfer, admission, release, as well as death details of these political prisoners, Ali has also handled prisoners who signed “confessions” over suspected political activities. That Ali was privy to the fact that a majority of these confessions were already signed and that the suspects were tortured and coerced to sign these, forms the basis for his fear of returning to Mexico. Add to this the fact that he made the daring yet risky decision to leave the Basij Militia, possibly as a result of the fact that he realized that his actions were contrary to what his conscience allowed him to, forms a perfect ground for his persecution if he were to return to Iran.

Besides, Ali has betrayed the trust that was bestowed on him by the Basij Militia and by extension, that of the Iranian government, by disclosing information regarding the prevailing atrocities and crimes against humanity that were being committed in his home country. It could therefore be argued this perceived, yet very real fear of the impending persecution and torture, if he were to return to Iran, may have informed his decision to seek asylum in New Zealand. In as much as Ali may have misled the authorities in New Zealand, as he sought to be granted refugee status, nevertheless, this should not be enough ground to deny him asylum, considering that the consequence of denying him the refugee status could be grave, to the extent of costing his life.

Also, Ali has already joined the list of those traitors that are thought to renegade the rule of authoritarian regimes. Besides, the circumstances surrounding the decision by Ali to seek asylum are not grave, in the sense that th4ese are not politically motivated per se, such as a failed coup attempt. If anything, Ali was trying to shed light on grave misdeeds that the Iranians have to endure every day, thanks to an authoritative regime. In this case, Ali’s actions require to be applauded, instead of persecuting him. New Zealand has a history of granting various forms of asylums to individuals, and in the case of Ali, this should not be an exception. In addition, Ali could also plead “an error of law”, by claiming that he had no knowledge that by misleading the authorities in New Zealand on the reason behind his seeking for refugee status. Besides, his actions are not contrary to the stipulations of Article 1 F (a).

Work cited

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