C2.5 New Zealand's obligations under the 1951 Convention Relating to the Status of Refugees

Immigration Act 1987 ss 129D(1), 129X(2)

1. New Zealand acceded to the 1951 Convention Relating to the Status of Refugees on 30 June 1960 and to the 1967 Protocol Relating to the Status of Refugees on 6 August 1973.
2. In carrying out their functions under Part VIA of the Immigration Act 1987 in determining claims or matters involving the possible loss of refugee status, refugee status officers must act in a manner consistent with New Zealand's obligations under the Convention.
3. In carrying out their functions under the Immigration Act 1987 in relation to a refugee or refugee status claimant, immigration officers must take into account the provisions of Part VIA of the Immigration Act 1987 and of the Convention.

C2.5.1 Who is a refugee

Immigration Act 1987 Sixth Schedule Convention Relating to the Status of Refugees Article 1A(2)

Refugees are persons who are outside the country of their nationality or former habitual residence and have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and are unable or, owing to such fear, unwilling to return to that country.

Note: for the official definition of a refugee see Article 1A(2) of the Convention.

C2.5.5 Country of nationality

Immigration Act 1987 Sixth Schedule Convention Relating to the Status of Refugees Article 1A(2)

1. In the case of a person who has more than one nationality, "country of nationality" means each of the countries of which they are a national.
2. If a person has the protection of one of their countries of nationality, New Zealand's obligations under the Convention are not activated.

C2.5.10 Refugee or refugee status claimant not to be removed or deported

Immigration Act 1987 ss 114Q, 129X, Sixth Schedule Convention Relating to the Status of Refugees Articles 32, 33

1. No person who is a refugee status claimant may be removed or deported from New Zealand until their claim to refugee status has been finally determined.
2. No person who has been recognised as a refugee in New Zealand and no refugee status claimant may be removed or deported from New Zealand unless Article 32(1) or 33(2) of the Convention allows their removal or deportation.
3. Under Article 32(1), Governments undertake not to expel a refugee lawfully on their territory except on grounds of national security or public order.
4. Article 33(1) of the Convention provides for the obligation of "non-refoulement", by which Governments undertake not to return a refugee to a country where the refugee's life or freedom would be threatened for a reason accepted under the Convention.
5. Article 33(2) states however that the prohibitions against "non-refoulement" no longer apply if:
   1. there are reasonable grounds for regarding a refugee as a danger to the security of the country in which they are (i.e. in our case, New Zealand); or
   2. a refugee, having been convicted of a particularly serious crime in the receiving country, poses a danger to the community of that country (i.e. New Zealand).
6. Because a determination to apply Article 32(1) or 33(2) of the Convention to a refugee or refugee status claimant involves highly sensitive issues and potential conflict with New Zealand's obligations under the Convention, such a determination may only be made:
   1. by an immigration officer with Schedule 1 delegations; and
   2. following:
      • legal advice; and
      • if appropriate, following consultation with the Ministry of Foreign Affairs and Trade.
7. Articles 32(1) and 33(1) do not apply to people to whom the exclusion provisions in Article 1F have been applied. Such persons are considered unworthy of protection because of their conduct. However such persons should only be removed from New Zealand after the steps in C2.5.10(f)(i) and (ii) have been followed.

Effective 28/11/2005