Legal inadequacy will exacerbate the Ukrainian refugee crisis

It is estimated that the Ukraine refugee crisis will escalate in the coming days.

Sources indicate there are approximately three million Ukraine refugees, people who have fled their homes due to the war.

New Zealand will face an impact because its humanitarian profile is internationally recognised. Its well-established refugee system also makes the country desirable for asylum seekers as rights to residency are attached to a refugee or protected person status.

The refugee determination process is benign and largely premised on favouring the refugee claimant. However, there are abuses to the system which expects bona fide applications.

At present, the Russia-Ukraine conflict raises many implications which, Immigration New Zealand (INZ) is yet to address.

This article intends to discuss Refugee Law and potential abuses to claimants who are not genuine. Abuses of non-genuine refugee claims cause undue stress on our legal system and undermine the integrity of the Immigration Law of New Zealand. The bona fide refugee applicant is also adversely impacted as non-genuine refugee claims have over time, stimulated distrust for INZ.

The Law governing refugees

The law governing refugee and protected person status in New Zealand involves international instruments which the Immigration Act 2009 (The Act) seeks to enforce. These include the 1951 Convention Relating to the Status of Refugees (the Refugee Convention), the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), or the 1966 International Covenant on Civil and Political Rights (ICCPR).

Refugee status is assigned to a person who falls within the meaning of a ‘refugee’ within section 129(1) of the Act and the Refugee Convention Article 1A, which defines a refugee as someone who (a) owes a well-rounded fear of being persecuted on the basis of identity or belief such as race, religion, nationality, involvement of a social group, sexual orientation, or political opinion (b) is outside of their country of habitual residence or nationality due to a real chance of facing serious harm upon return to that country and (c) needs and deserves protection in New Zealand.

Alternatively, a protected person status is available to ensure that New Zealand maintains its international obligations with Articles 6 and 7 of the ICCPR or the CAT. Section 130 (1) of the Act requires the claimant to show substantial grounds of belief that they would be subjected to arbitrary deprivation of life, torture, cruel inhuman or degrading treatment or punishment if deported from New Zealand.

Claims that lack credibility will not succeed. They may also be vitiated where section 164 (4) applies, including where the claimant has committed an offence, if claimants have access to effective domestic protection in their home country or a third country, or if refugee status is acquired by fraud or bad faith.

A child holds an infant at a shelter in Przemysl, Poland on March 8, 2022 (AFP Photo by Louisa Gouliamaki via Getty Images)

 Implications for Ukrainians

The Russia dispute raises implications for Ukrainian nationals seeking asylum in New Zealand. Generally, claimants from civil war backgrounds will not be recognised as refugees. The fear of persecution required by the Refugee Convention must involve victimisation based on an individual’s civil or political status, or where the war is directed towards a particular social group and where serious harm appears as a real risk.

NZ authorities have however applied the law favourably to civil war victims. The landmark decision, Chan v Minister for Immigration & Ethnic Affairs held that a refugee claimant is not required to show that they were a direct victim of systematic conduct or a series of acts. A single act of oppression is sufficient. Therefore, refugee status can be accorded to claimants where war is based on issues of race or politics.

The humanitarian crisis is based on Russia’s political agenda to deprive Ukraine of its independence and reclaim the country. Tensions have escalated, as nuclear weapons are being introduced. The latter is classified as a crime against humanity, genocide, and a war crime under the ICCPR and CAT. As a result, nationals are placed under imminent threat, which supports a well-rounded fear of persecution required by the Refugee Convention. Despite the practical difficulties at law, the generosity exercised by decision-makers means Ukrainians, being civil war victims will qualify for refugee status in New Zealand.

There remain implications for overstayers. A refugee or protected person status grants a 1-year open work visa, with an option for another, if successfully extended. It presents a temporary solution seeing that war is a pro-longing event. Deportation of overstayers exposes them to a lack of domestic protection and scarce resources upon return. Consequently, the immigration system will expect delays, whereby advisors will re-lodge refugee claims to encourage lengthened duration of stay for claimants.

Abuse of the process 

Unfortunately, there appears to be an abuse of the well-placed system by non-genuine refugee claimants. These applicants are often seeking refugee or protected person status as a result of wrongly provided advice. The Immigration Protection Tribunal (IPT) has, on many occasions, highlighted its difficulty in exercising flexibility when making refugee determinations and simultaneously discouraging abusive claims which take advantage of the generous process.

The recent decision, BY (Malaysia) [2021] NZIPT 801946 is on point. The IPT highlighted the abuse of process involved refugee claims consisting of ‘concocted narratives’ with similar language. Findings suggest the cohort of Indonesian and Malaysian nationals between 2019-2021 shared strikingly identical details in their claims.

Most applications supporting a refugee or protected person status mutually expressed reasons for seeking asylum were, ‘fear of retribution from unlicensed moneylenders’ whom claimants borrowed from as ‘an easy route’ to satisfy their common ‘obsession’ of becoming rich and expanding their business.

Many decisions in the same year of 2021 suggested other similarities and involved the same address of residence in the Bay of Plenty region, a repeat behaviour of borrowing loans from friends rather than banks or family, a pattern of working overseas following the advice of friends and at times, sharing the same advisors and support staff.

A family of Ukrainian refugees at a migration registration office in Hamburg, Germany on March 8, 2022

(Picture Alliance Photo by Marcus Brandt via Getty Images)

 The IPT believed that such similarities were more than coincidental. It accepted that, while Indonesians borrowed from moneylenders as common practice, it appeared implausible that many applicants in the same circumstance sought to travel to New Zealand during the same time. As a result, the Malaysian and Indonesian cohorts have long been illustrated as part of a deliberate scheme to exploit New Zealand’s refugee protection system.

These decisions against applications of many which show that people in difficult situations can be misled. The abuse of the system in relation to most Indonesian and Malaysian applicants is attributed to a lack of understanding by claimants and the trust that they place in others. The IPT must acknowledge the vulnerabilities of upcoming applicants when faced with an influx of similar claims arising from the war.

Asylum seekers are often unaware they will face deportation at the expense of wrongful advice. Eradicating abuse of the system is therefore highly dependent on counsel or advisors maintaining communication with applicants using native language to enhance understanding of the procedure so that claims meet credibility requirements.

Credibility of the claim

The threshold for assessing the credibility of claims should be raised to remedy abuse in the system. Currently, the Act imposes responsibility upon the appellant or affected person to establish their claim and provide relevant information, evidence, or submissions that they wish for the Tribunal to consider before it rules on the matter.

The Act also empowers the Tribunal to make determinations in the appellant’s absence if the Tribunal has provided sufficient notice for the appellant to attend the scheduled hearing.

The law on this aspect is generous. It is not uncommon that appellants are absent from hearings due to the lack of communication advanced by their counsel or advisors.

Evidentiary voids, including an oral hearing, will often invite rejection for refugee status. Communication will remain an ongoing issue due to the lack of ethnic diversity across organisations and limited access to interpreters.

This calls for the IPT’s pro-activeness in summoning the appellant’s attendance if they were represented at the time of hearing or previously represented. The duty of advisors and counsel in maintaining communication and eliminating language barriers is paramount to the claimant’s understanding of the refugee application process.

The claimant is the most credible witness considering their application is based on personal experience. Attendance suggests the claimant is genuine and willing to co-operate.

Additionally, the IPT must assess identical applications in light of surrounding circumstances, such as the humanitarian crisis to gain confidence about the veracity of upcoming claims.

Circumstance as a factor will support Ukrainians seeking residency in New Zealand for longer periods provided that the Russia conflict is ongoing. Any identical claims presented as a result of the war will also not be presumed by the IPT as an attempt to abuse the process.

These steps will successfully mitigate abuse only if the appellant’s attendance is sufficiently encouraged by their counsel and the IPT by using culturally appropriate measures.

The burden of proof

Another concern is the burden of proof expected of the refugee claimant.

Generally, the claimant bears the responsibility to establish the elements of the claim and ensure they have provided the Tribunal all relevant information which they wish to be considered. Moreover, the burden falls below the balance of probabilities and thus, the rules of evidence are not applied.

The threshold is reasonably low. In T v Refugee Status Appeals Authority, the Court of Appeal held ‘responsibility to establish the claim’ within section 129G of the Act means the claimant has the burden to merely establish what the claim is, not prove the claim.

Further, Professor Burrows in Statute Law in New Zealand 2nd ed (Butterworths, 1999) at 202 notes the latter must be understood as the refugee claimant having no more than a responsibility to establish that they match the definition of a refugee under the Refugee Convention. The generosity exercised in favour of the claimant is necessary as decision-makers are in the power of potential life-or-death consequences of an individual.

Accordingly, section 129T of the Act recognises the claimant’s safety and enforces the Refugee Convention requirement that confidentiality applies to all documents used in the application process to protect claimants and affected persons against retribution in their home country.

Confidentiality, however, hinders the investigation of non-genuine claims. The Supreme Court in MA v Attorney-General addressed the issue, holding that legal privilege does not cover immigration advisors. Its reasoning was best explained in the High Court judgment where Priestly J expressed that, given the refugee determination process is benign, the country providing a safe haven is entitled to investigate the situation.

In that case, the Supreme Court upheld the withdrawal of the appellant’s New Zealand citizenship after discovering the claim for refugee status was supported by false documents which contained inconsistent information with his submission.

It is seen the low standard of proof is inextricably linked to abuse. The system risks abuse in many instances where wrongly provided advice of lawyers is privileged.

Furthermore, the power of confidentiality on limiting the investigation of abusive claims makes it difficult for decision-makers to distinguish whether inconsistent evidence in a claim is due to the claimant’s fault or wrongly provided advice.

Inadequate documentation

For Ukrainians, the case will be the latter as the war has forced them to flee their homes in haste without adequate documentation to support their claims.

The principle of confidentiality is a policy designed to assist bona fide claimants against persecution in their home country, as opposed to terrorists, war and genocide criminals, or those seeking to bypass immigration procedures.

Confidentiality as a statutory obligation should be enforced in light of the Immigration Act’s purpose as per section 5 of the Interpretation Act 1999. In other words, it should not frustrate the integrity of New Zealand’s refugee protection system.

Abuse in the system is unavoidable considering refugee status trumps NZ immigration policy. It can at least be minimised by ensuring claims are fast-tracked to filter out the re-lodging of non-genuine applications to prevent a further drain of resources, including taxpayer funding and legal aid at first instance and on appeal. These considerations align with the government’s commitment towards granting visas for 4000 Ukrainian New Zealander families and increase in aid to Ukraine by $4 million as of March 15, 2022.

Relevance of good faith

Good faith is relevant where claims are concerned to be non-genuine.

The Refugee Status Appeals Authority and the Act identifies good faith as a requirement, although not recognised in the Refugee Convention. Despite this, the immigration system suffers where public attention displaces the good faith requirements of claimants.

The notorious case, Refugee Appeal No. 76204 involved public protest against the deportation of an Iranian who converted to Christianity while living in South Korea.

On the facts, the appellant claimed he would be sentenced to death for apostasy if returned to Iran. Mainly addressed was the issue of whether the appellant’s religious conversion was genuine. It was established that good faith must be ‘applied with caution, not zeal… considerations include the degree of bad faith and risk, and the nature of the harm feared.’

The Authority ruled the appellant was acting in bad faith provided he deliberately manipulated the public into supporting his claim using false documents. The appellant was nevertheless recognised as a refugee considering the publicity surrounding the case substantially raised his risk of harm if deported to Iran.

Conversely, the appellant’s account in the recent decision of BX (Malaysia) [2021] NZIPT 801934 also involved fear of harm subsequent to his religious conversion to Shia Muslim, if returned to Malaysia. The case is distinguished on the grounds that public attention was not present.

Note to Immigration Advisors

These decisions represent how advisors who assist applicants in using inconsistent information strains the system. Refugee Appeal No.76204 reinforces the reluctance of decision-makers to risk sending claimants back to persecution, irrespective of bad faith.

The decision makes supporting authority for Ukrainians claiming refugee status. The third panel for example highlighted circumstances that evidence a well-rounded fear of harm for the bona fide applicant will involve where a regime or change in government abandons fundamental human rights, making it unsafe for claimants to return.

This undeniably matches the Russian incentive to overthrow Ukraine’s democratic government. Decision-makers and those assisting Ukrainian asylum seekers must lodge applications according to good faith considerations.

Representatives also bear the responsibility to ensure all relevant information about the claim is disclosed, including information that may not advance the claim in order to foster the integrity of the refugee scheme.

Those assisting overstayers must exercise the same precautions.

The lack of vigilance by advisors towards applicants’ needs creates non-genuine claims.

The Authority has recognised that non-genuine claims will involve a common opportunistic desire of migrants to work in New Zealand as in AM (Indonesia) [2021] NZIPT 801892.

It was further stated that claimants are caused to travel to New Zealand because of an economic necessity to generate income for families at home.

On the contrary, a refugee or protected person status covers people who are caused to leave their homes due to a fear of harm. Earlier decisions also highlighted applicants of this nature will repeatedly withdraw and re-lodge claims to delay deportation and continue employment. In most cases, advisors blanketly apply for refugee status for clients as it provides automatic rights to residency.

New Zealand’s immigration system encourages work visas for those seeking employment.

Advisors and lawyers hold an inherent duty to enrol clients under the appropriate visa category based on the applicant’s background and skills.

Though temporary, work visas will reduce non-genuine claims. There are 80 different visas offering rights to work, some of which lead to permanent residency. More encouragement of work visas from advisors will restore trust between the IPT and the overseas applicant.

Claims from Ukrainian nationals will often be genuine as they arise from a civil war background. Nevertheless, it is fundamental that these claims meet credibility, evidentiary and good faith requirements to maintain the integrity of the system.

Abuse unavoidable

Russia and Ukraine’s dispute will contribute undue stress to New Zealand’s refugee scheme. The regrettable fact is abuse in the system is unavoidable considering refugee status trumps New Zealand immigration policy. Abuse can be mitigated where possible.

The significant number of decisions ruling against applications for Malaysian and Indonesian claimants illustrates the many vulnerabilities faced by migrants and asylum seekers.

The IPT may view the influx of similar claims from Ukrainian nationals due to the war as an attempt to abuse the system. As discussed, abuse is attributed to wrongly provided advice.

Ukrainians claiming refugee status may find themselves in this position if sufficient communication is not advanced. Lawyers and advisors hold an inherent duty to provide culturally appropriate assistance for applicants to ensure they understand the refugee determination process.

While the refugee system is largely generous, the IPT must be conscious of the difficult circumstances surrounding claimants.

The Tribunal must also encourage the appellant’s attendance at hearings to fill evidentiary voids and ensure the credibility of claims are maintained.

Confidentiality as a principle should not be applied in a manner that frustrates the system.

Good faith requirements can also be met by advisors and lawyers enrolling applicants into the appropriate visa category using valid documentation.

These measures will prevent the drain of resources and efforts in filtering out abusive claims. In this way, the integrity of the system is being fostered.

Dave Ananth and Shyna Samil are respectively Senior Tax Counsel and Legal Intern at Stace Hammond Lawyers in New Zealand. Mr Ananth is also President of the New Zealand Malaysian Business Association (NZMBA).