[If you don’t get the musical reference in the title, Google ‘Tom Petty’.]
People trying to find a way to stay in New Zealand sometimes get the idea that they can get themselves a visa by applying for asylum. Of course, there are some who have a good refugee case, and who have no other avenue to make New Zealand their safe haven. However, others who go down this route do not realise the negative consequences of doing so.
It’s a Trap!
A request for refugee status, or for “complementary protection” under other human rights conventions, is called a claim. It is first assessed by the Refugee & Protection Unit (RPU) of Immigration New Zealand. If it is declined, there is a right of appeal to the Immigration & Protection Tribunal.
There is no guarantee that making a claim will get someone a visa, especially if they have been detained because they cannot provide any proof of ID. Still, it is true that in many cases visas will be granted to allow people to remain lawfully in the country while their claim is decided. The catch is that, once they have applied, they can only hold a visa for the purpose of pursuing that claim. It’s a one-way street. If the claim ultimately fails, they have to leave.
The only way out of this is to withdraw the claim and apply for a visa upon different grounds, such as to take up a job offer or to study. It gets even worse after the RPU has declined a claim “at first instance”, because the Immigration Act is written so that no visa will be granted for any other purpose once the person is at appeal stage, even if they withdraw the appeal. If we encounter someone who still has a first-instance case before the RPU which has not yet been decided, and they have a good basis for getting a visa in another way (say, through their NZ partner), we encourage them to pull their claim out before the RPU can make a decision.
Even people who have very good reasons for seeking protection from harm in their home country may be better off exploring whether they could get a Work Visa based on a good job offer, which in some cases might lead on to Residence. Or there may be other options like study leading to a Post-Study Work Visa This is because, even if the asylum case is strong, there is no guarantee that the claimant will be recognised as a refugee or protected person.
One hurdle is what is called credibility – does your story hold together? A big challenge for most asylum claimants is getting hold of the evidence which backs up their account. By definition, they can’t go back home to dig out documents and contact witnesses. In some situations, even talking to friends and family on the ‘phone will put those people in danger. Refugee law is littered with cases which were declined simply because the decisionmaker did not believe some or all of what they were being told.
Then there are the legal tests which are applied to every claim. Even though one might justifiably fear serious harm – say, from a particular opposing religious or political group – they might find safety in another part of their own country, especially if it is large like India or China (the internal protection alternative).
If a claimant is ultimately unsuccessful and has to leave New Zealand, their record of having claimed asylum may be available to other countries, such as Australia or the USA. This will almost certainly make it very difficult for them to get a visa for those destinations.
Refugee and protection claims can succeed – I have handled hundreds of cases in the past. But for the above reasons, if someone comes to us asking about asylum, we first of all examine any other conventional way by which they could get a visa. If you or someone you know needs to explore this, get in touch with us now.