Exam Notes - Summary Refugee Law PDF

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REFUGEE LAW EXAM NOTES Of 65 million forcibly displaced people, about a third (22 million) are refugees. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR) Humanitarian, not political organisation Role: to provide international protection (i. basics of life) for refugees and find permanent soluti...

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R E F U G E E L AW E X A M N O T E S Of 65.6 million forcibly displaced people, about a third (22.5 million) are refugees. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR)  

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Humanitarian, not political organisation Role: to provide international protection (i.e. basics of life) for refugees and find permanent solutions normally repatriation or resettlement, but becoming clear not always possible, so also trying to create systems of life within the camps. Legal Role: provides advice to countries about implementing the convention, and develop refugee systems. Expanding mandate: today it also looks after, IDPs, Asylum seekers, stateless people.

HISTORY LEAGUE OF NATAIONS, 1920: 

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1921, established a Commission for Refugees, definition limited Russian Revolution refugees. Seen as temporary and developed on ad hoc basis as new refugee flows occurred. Nansen passports: any refugee could get ‘passport’, which served as basic identification document. All countries agreed to accept them. Key issue = no obligation on states to take refugees, seen when Jewish fled Germany. POST WWII:

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UN Relief and Rehabilitation Administration, 1944-1947. Clear issue not fixed. International Refugee Organisation, 1948. Still established as a temporary organisation.  Started to accept that refugees could be more generally victims of persecution. 1950, still 1.25 million refugees. Created a new organisation to protect refugees, (UNHCR). The Refugee Convention was then created in 1951.

MODERN REFUGEE LAW Preamble highlights humanitarian nature. 1951 CONVENTION Defines who is a refugee (article 1A), who is not, and rights and obligations. However, this does not establish a court to hear disputes. Instead, every country sets up its own domestic system. RIGHTS OF REFUGEES: New Zealand law does not codify the rights, yet one all countries highly respect is article 33(1) – THE RIGHT OF NON-REFOULEMENT . ‘No Contracting State shall expel or return 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.

DECIDING WHO IS A REFUGEE IN NEW ZEALAND (1) IMMIGRATION ACT 2009 s 129: A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention (apply Art1A(2) of the Convention). (2) APPLY ARTICLE 1A (1) Anyone who has previously been recognised as a refugee under one of the old systems. (2) Any person who:  

Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political group; and Is either:  Outside country of nationality and is unable/owing to such fear unwilling, to avail himself of protection of that country; OR  Not having a nationality and being outside the country of his former habitual residence, is unable/owing to such fear, is unwilling to return to it. (3) INTERPRETATION: VIENNA CONVENTION ON THE LAW OF TREATIES

ARTICLE 31: treaties shall be interpreted in good faith in accordance with the ordinary meaning of the terms in their context and in light of the treaty’s object and purpose. Good faith = interpret in a way that gives effect to the treaty , doesn’t render it useless. Ordinary meaning = dictionary definition can be a starting point, but not enough. Broad approach. Context = Words around it, but also other words in the treaty. Object and purpose = for Refugee Convention, this is not specifically set out, but is said to be humanitarian purpose/to protect human rights. ARTICLE 31(2): when interpreting a treaty, regard must also be had to any subsequent practice, subsequent agreement and relevant rules of international law. ARTICLE 32: where ambiguous, regard can be had to the preparatory material of the treaty. OTHER THINGS TO CONSIDER:  

Judges look at other jurisdictions with the aim of consistency so refugee flows don’t become unbalanced. Also, with no higher power this is the only way for clarity. UNHCR publishes documents that set out what it thinks certain things should mean. The court can find them persuasive, but are not required to follow them since it is not a court.

(1) ARE THEY OUTSIDE COUNTRY OF NATIONALITY OR HABITUAL RESIDENCE? Exists because of policy issues: state sovereignty, resource shortages, fear of decreasing obligation on states, the nature of conflict that led to convention. However, today:

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Responsibility to Protect (R2P) –growing idea in the past 20 years. If there are serious human rights concerns in a country, the international community has a responsibility to step in. Difficulty of some groups leaving a country – i.e. women. Moral issue with putting resources into a select few and not others who might be deserving.

WHAT IS LEGALLY OUTSIDE YOUR COUNTRY OF NATIONALITY?   

In international law, every country has space around it called territory waters. Once plan or boat goes over it, they’re outside that country. It does not matter if you enter New Zealand illegally , can still apply for refugee status. Don’t have to claim refugee status in first country you reach.  European Union has regional law, Dublin Convention, which means you have to apply in the first country you get to.

MULTIPLE NATIONALITIES? Second paragraph of art 1a(2) says: if a person has more than one nationality, ‘the country of his nationality’ shall mean each of the countries of which he is a national, and shall not be deemed to be lacking protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of those countries. ELLM CASE: RSSA held if you haven’t sought protection from both countries, and you don’t have a valid reason, you’re not a refugee.  

This is because the fundamental lynchpin of the convention is a state’s inability to protect creating the need for surrogate protection . Assumption national protection takes precedence over international protection – must prove state’s inability, and won’t succeed if objectively reasonable to seek help.

STATELESSNESS AND HABITUAL RESIDENCE No citizenship/nationality = stateless. Refugee if (a) outside their country of habitual residence; and (b) have well-founded fear of being persecuted in their country of habitual residence (Art 1A). WHAT IS A ‘HABITUAL RESIDENCE’ (72635/01) Must show that the person has made it the centre of their interests . Very fact specific – no duration needed, do not need to be born their or make it your permeant home. In New Zealand, if you have habitual residence in multiple places, must prove well-founded fear of being persecuted in all to be considered a refugee. PROVING YOU COULD RETURN TO COUNTRY OF HABITUAL RESIDENCE? Originally was a requirement as if you couldn’t there was no fear of persecution (72635/01). OVERTURNED BY 723861 (2005) FOR A NUMBER OF REASONS: a) The wording of Art 1A(2) makes it clear people who can’t go back (‘unable’) can still become refugees, thus it is senseless to have this extra requirement of ability to go back.

b) Says it is hypothetical language, does not actually mean you have to prove you can go back. c) Not supported by case law of other countries. d) Would result in uneven system, as escaping to different countries would impact whether you were a refugee (i.e. close country where you could easily get back would, vs far away). e) Risk people will be in legal limbo that we’ll then try to deport and could end up back where they were persecuted – this would be against Article 33 of the convention.  Article 33 applies even if not considered a refugee as under international law you are a refugee as soon as you meet the requirements.

REFUGEE SUR PLACE? Refugee sur place is a person who once outside, themselves changes situation to give them well-founded fear of being persecuted in his own country. Refugee law is premised on idea that you should be able to be who you are openly/freely (DS Iran shouldn’t have to change religion), so most of the time you can claim refugee status. Exception if there’s BAD FAITH (strategically manufacturing a situation to make case). Appeal No. 2252: Tribunal you need to do a balancing act of how much bad faith there was versus how much risk there is of persecution.

(2) DO THEY HAVE ‘WELL-FOUNDED’ FEAR? WELL-FOUNDED = OBJECTIVE STANDARD RE ELLM held well-founded is objective as purpose of convention is to provide safe haven for people with genuine issues. Concluded objective test, not based on claimants statements alone. CHANCE OF PERSECUTION (72668/01) You need a REAL CHANCE of being persecuted for a convention reason if they went back to their country to make the fear well-founded. Doesn’t have to be over 50%, can be as low as 10% - i.e. 1 in 10 men were killed (percentages are artificial). Needs a substantial basis , rather than a speculative chance (something in the future/unknown). PAST-PERSEUCTION RE: C (1997): Held that past-persecution alone is not enough grounds for refugee status. Date of well-founded fear is when case decided.   

Drafting process had concisely removed it. Countries who allow it used domestic legislation, showing the convention won’t legitimise it. Article 1C does not provide support for this idea.

AC EGYPT The existence of past persecution is not determinative, although absent any material change in the country it can be a reliable indicator of future risk. Began by looking at past persecution suffered, and noted that why Egypt was improving the state hadn’t made enough change to counter a substantial chance of persecution on return.

(3) OF ‘BEING PERSECUTED? Wording is passive = don’t have to prove a particular person/group are doing persecuting (or their mental state/intent – 72635/01), as don’t want to have to comment on other states policing etc). Focus is on whether someone is in a position of being persecuted. TEST = (1) risk of serious harm; and (2) lack of state protection (DS Iran). HUMAN RIGHTS AND HUMAN RIGHTS LAW NZ uses the international human rights law approach = having regard to whether there are serious breaches of human rights. For refugee status = must show that a right was illegitimately breached. LIMITATION ON HUMAN RIGHTS: Some can be limited in certain circumstances – look at the treaty. Some can never be limited – i.e. right to be free from torture. DEROGABLE RIGHTS: Article 4 ICCPR says that in times of emergency that threaten the life of the nation, can derogate some rights (although some cannot be derogated from).   

Must be officially proclaimed; AND Be able to show the derogation was necessary in the circumstances; AND Can’t derogate in a discriminatory way.

(1) RISK OF SERIOUS HARM Cannot just prove breach of human right – need to prove serious harm. OLD APPROACH: 1. Identify the human right concerned. 2. Work out the scope of the human right – what is its core? 3. Is the conduct the person fears within the core of the right and is there a risk of sustained or systemic denial of the right(s)? ~ NEW TEST ~ (DS IRAN (2016) ): 1. Does claimant’s predicament indicate there will be an interference with a human right? 2. If there will be interference, does the right in principle permit any restriction/limitation? 3. If the restriction is permitted, is the restriction at issue lawful in terms of the relevant limitation or derogation clause? (Note: no limitation can make a right null) 4. If the restriction is not permitted or is permitted by applied unlawfully, will the breach of the right cause some form of serious harm to the claimant. HOW TO DECIDE IF THERE HAS BEEN ‘SERIOUS HARM ’      

Consider the nature, intensity and duration of the harm (does not have to last a certain amount of time though). Does not have to be physical harm, it can be psychological in nature. Does not have to be repeated if serious enough. Multiple breaches can be considered together to cumulatively amount to serious harm. The court will have regard to individual characteristics . DS Iran: Secular lifestyle was fundamental to who he was, shown by his history/previous depression. The harm should “have a particular quality which elevates it from being a matter of domestic concern into something of international concern through the Refugee Convention.”

NO REQUIREMENT TO AVOID ABUSE OF RIGHTS BY BEING DISCREET: NZ has made it very clear you should not have to hide any part of yourself to avoid persecution. WHEN IS COMPULSORY MILITARY SERVICE SERIOUS HARM (DS IRAN)    

Nothing fundamental unlawful about state imposing service, to make it a breach need to prove your desire to do it was due to belief you held (article 18). Being forced to commit human rights breaches would constitute breach justifiable of giving refugee status. Partial beliefs are sufficient (i.e. he had not objective to military, just serving a religious dictatorship), if deeply enough held. Being forced into practice of religion unlikely to be justifiable in military unless can prove it is needed for military service, not to encourage the religion. SOCIAL, ECONOMIC AND CULTURAL RIGHTS (BG FIJI )

Distinction between economic hardship and persecution – the convention was not set up to help poverty, it provides surrogate protection when there’s a denial of fundamental human rights. However, economic and social rights can give rise to a valid claim of refugee status, right not hierarchical – but also notes that something more than just discrimination is probably needed. Use analysis of core of socio-economic right : not all states can completely fulfil rights completely, but all the minimum core. More advanced countries would have to move past this.

LACK OF STATE PROTECTION The basic test, from wording of convention, is whether a state is unable OR unwilling to protect the applicant. 71427/99, highlights four accepted situations that amount to lack of protection:   

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Persecution committed by a state agent Persecution condoned by the state concerned  The state needs to be encouraging it or supporting it in some way. Persecution tolerated by the state  If the state hasn’t set up laws to protect human rights, if the police aren’t stepping in.  One person alone probably won’t be enough, needs to demonstrate that the state as a whole would tolerate. Persecution not condoned but nevertheless present because the state is unable to offer adequate protection. HAVE THEY FAILED TO MEET THE REQUIRED STANDARD OF PROTECTION?

No state can provide 100% protection, NZ Test: A person isn’t a refugee if state’s system of protection can reduce the risk of serious harm to below a real chance of serious harm occurring. Does not require state to eliminate serious harm completely. (71427/99) CAN APPLICANT REBUT THE PRESUMPTION OF STATE PROTECTION? In NZ, there’s a presumption states can protect their population – refugee claimant must rebut this with clear and convincing confirmation of a state’s inability to protect . (71427/99)   

Includes if you have been harmed in the past (although convention is prospective looking). Can look at general practices from the country you are living in. Do not have to ask for help, yet it is evidence in your favour.

DOES THE INTERNAL PROTECTION ALTERNATIVE APPLY? Refugee law says that even if someone has well-founded fear of persecution in one part of the country, if they can be protected in another part of the country they will not be a refugee. This is because surrogate protection should only apply if state cannot protect you.  

The UK thinks this question goes to the well-founded fear test, NZ says it is part of the protection element – meaning it is grounded in human rights. UK Test: is it reasonable for a refugee to seek protection in another part of the country, or would it be unduly harsh to ask them to relocate. (Vague and has led to inconsistencies).

NZ applies the internal protection alternative test : could the individual genuinely access domestic protection which is meaningful? The elements of this test are (76044): 1. 2. 3. 4.

Is there an ability to access the proposed alternative (i.e. is it practical, safe and legal)? Is the real chance of being persecuted eliminated in this new place (must offer an antidote? Is there an absence of other forms of serious harm or of refoulement? Is there the ability to access a minimum level of civil, political and socio-economic rights? (Very lose approach can be taken to this – take inspiration from the rights in the Refugee Convention and interests protected).

(4) FOR REASONS OF + CONVENTION REASON ‘FOR REASON OF’ (72635/01) NEXUS Only need to link with one of the limbs of persecution, serious harm or failure of state protection. STANDARD OF CAUSATION Sufficient for the claimant to establish that it is a contributing cause to being ‘persecuted’.  

Does not have to be the sole/main/direct/but for cause, it is enough that it is relevant. However, if it is remote to the point of irrelevance, causation has not been established. DOES NOT HAVE TO BE UNIQUE

Do not have to prove your harm is unique or above and beyond what other suffer. It does not matter how big the group is, as long as the group is being persecuted for a convention reason.

RACE REFUGEE APPEAL 1222/93 – WHERE THE KURDS A RACE     

Race is not biological/genetic, it is social construction. No specific test, but take into consideration shared characteristics such as customs, philosophy, thought, history, traditions, nationality, language, residence. Do not have to tick off everything on the list, they are just indicators. Also consider whether they themselves consider themselves a race, and do others. Convention wanted protection for Jews, thus they are trying to give a broad definition of race.

RELIGION

Includes: (a) religious beliefs; (b) not having a religion; and (c) having any other sort of belief if it has institutional characteristics or practices similar to a religion. BROAD, but does not include everything – i.e. if ‘religion’ is just a face. NEXUS: Need to be able to show the link between risk of persecution and your self-defined or externally ascribed religious beliefs. However,   

Don’t have to be playing an active role in promotion of belief. Don’t have to be particularly observant. Don’t actually have to hold a belief – can have a belief imputed to you. SITUATIONS IT ARISES:

(a) Because of a person’s right to hold a religion; AND (b) A person’s right to manifest their religion, however: this can be limited if done legitimately. If it isn’t no one is expected to desist from manifestation to avoid persecution.

POLITICAL OPINION New Zealand approach (76339 ): contextual approach that considers the specifics of the case – cover opinions on state, government, policy where these are politically motivated, includes:    

People identifiable because of political affiliations (diplomats, MPs, political parties) People fleeing political revolutions People at risk because of their political beliefs even though they do not take active part. People to whom a political belief can be imputed – this happens if a person carries out an activity that creates an assumption that they hold a certain belief ULTIMATELY DEPENDS ON THE CONTEXT OF THE CASE (76339 )

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Ask why they’re doing what they’re doing. If acting due to personal motivation, not political. Broad characterisation is important, but all-encompassing needs to be avoided. In that case, him informing was clearly him acting for personal reasons (revenge), not political. Moreover, the government would not perceive otherwise. COURTS SAY WE NEED TO GIVE GENDER SPECIFIC READING (76044 )

Whether it is political depends ...