In recent months, Immigration New Zealand has required asylum seekers to get Medical and Police Certificates, when they apply for visas to work here while their claim is considered.  As explained in a TVNZ report this week, these requirements used to be waived because of the situation of refugee claimants.  Now they face significant hurdles and delays just to be able to survive in this country.

INZ says that all they are doing is applying the same rules to refugee and protection claimants as for everyone else.  This, however, ignores the practicalities, and the special legal status, of refugee applicants.

A Bit of Law

New Zealand is a signatory to the 1951 UN Refugee Convention, which has been a part of New Zealand law for 10 years.  People who apply may be “recognised” as refugees.  That is, if they are accepted under the Convention, NZ has not given them refugee status – it has merely confirmed a status which they had already acquired because of their background and experiences.  It has been accepted by the Courts that the term “refugee” also applies to someone who has made a claim which has not yet been decided.

A key principle of the Refugee Convention is non-refoulement – a refugee must not be sent back to the country where they fear persecution.  Again, this has always been extended to claimants whose status has not yet been formally recognised, who are still in the process.  Otherwise, a country could be guilty of sending someone back to the risk of death or serious harm, who was actually entitled to its protection.

Medical Certificates

Immigration has always required asylum seekers to be screened for TB, to minimise the risk of that disease spreading.  However, doing the X-Ray was never tied to whether the applicant could get a visa.

The problem with requiring a Medical Certificate before a visa can be granted is that it slows down the process of approval, sometimes by several months.  In the meantime, many claimants may have no visa if they came in without a passport, which happens when they have used a false passport to board a flight here, and have destroyed it before arrival.  Or perhaps they originally entered as a visitor and made a claim after arrival.

The point is that they must remain here in order to get the claim assessed, and to make an appeal if the claim is declined the first time.  If they leave, the claim is automatically cancelled; and many of them only have the home country to return to, where they fear being harmed.

As I said above, NZ cannot deport them while they are waiting.  This means that, even if they have serious health issues, it will make no difference to whether they get a visa or not.  If someone has poor health, they still cannot be removed.  If INZ was to decline their visa for this reason, then all it is doing is making them overstayers, forced to work illegally to avoid starvation.

Police Certificates

The same applies to demanding that refugee applicants get police clearances.  Even if it was found that someone had committed war crimes, they could only be deported if they were found to pose a present threat to national security (admittedly, something which the Government would probably be keen to do in such a situation).  Otherwise, even they would be entitled to have their fear of persecution assessed, before applying Exclusion Clause 1F of the Refugee Convention to decide whether they deserved refugee protection.

Many asylum seekers have fled their home country because they are afraid of the government.  INZ now expects them to ask that government to produce a Police Certificate for them.  Not only does this draw attention to them from the very regime that they fear, it can also heighten the danger for their families and associates back home.  In some states, the very fact of finding out that a citizen has claimed asylum somewhere else increases the danger for them and those close to them.  This is one reason why section 151 of the Immigration Act prohibits disclosure of information about a refugee or their claim, or even the existence of a claim itself, with some very limited exceptions.  One of these is where “there is no serious possibility that the safety of the claimant or any other person would be endangered by the disclosure of the information”.  So the law itself recognises the danger.

Underlying Motives

As I have said, Immigration paints its change in approach as being about bringing consistency in the way visa applications are handled.  However, for the reasons set out above, claimants for refugee or protected person status are in a very different class to others.

The numbers of asylum claims have increased significantly in the last couple of years – from 339 in 2015-16 to 510 in the year to June 2019.  It may be no coincidence that this switch to greater consistency has happened this year, after decades of past practice in which claimants were not so burdened as they are now.  Perhaps it is hoped that, by making it more difficult for refugee and protection claimants to get visas, this will somehow deter people from coming here for that purpose.

I was heavily involved in representing refugees 20 years ago, and I have seen this before.  After the September 2001 Twin Towers attacks, there was a justifiable increase in scrutiny of travellers in general.  It was pretty well known among those of us who worked in this area that the passenger profiling at Bangkok or KL extended to looking out for those who might seek asylum on arrival.  Many people were stopped from boarding if they looked suspicious.  This appeared to correspond to a dramatic drop in the numbers who finally made it to our shores and applied to be refugees.  Similarly, the fixation on “mass arrivals” – the fear of hundreds of people coming ashore by boat, as they have tried to do in Australia – resulted in laws which penalised asylum claimants for daring to make such a perilous voyage.

If this is the reason for INZ changing its tune about Medicals and Police Certificates, then it is both legally and ethically wrong.  As a receiving country for refugees, bound by international treaty, New Zealand has an obligation to deal with both recognised refugees and claimants humanely.  If one was to accept, for a moment, that everyone claiming asylum has a valid fear of harm, then they are clearly among the most vulnerable group in society.  Yet, until a claim is decided, that is exactly what their legal status says they are.  That is why their ability to remain lawfully in the country should be facilitated, the way it used to be.

The alternative is to demonise them – as some do – as opportunistic gamers of the system.  And perhaps that’s what this is all about, after all.