Recent media coverage has brought well-deserved attention to the global refugee crisis, sparking debate on whether New Zealand is doing enough for the world's most vulnerable.
In our practice, we occasionally hear the question: "If all my other visa options fail, can I just claim refugee status?"
While often said in jest, there is a serious dimension to this question. It reveals a common misconception about what asylum actually is. I would like to take this opportunity to provide a "reality check" for those wondering if this is a viable Plan B.
1. Back to Basics: What is a Refugee?
The definition comes from the 1951 Refugee Convention, a multilateral treaty created in the wake of World War II. It defines who qualifies as a refugee, their rights, and the legal obligations of nations to protect them.
Under Article 1 of the Convention (as amended by the 1967 Protocol), a refugee is defined as a 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 opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..."
A Note on the UNHCR
Based in Geneva, the UNHCR (United Nations High Commissioner for Refugees) is mandated to protect refugees worldwide.
Historical Context: The UNHCR covers all refugees except Palestinian refugees (displaced between 1947–1949), who fall under a separate agency called UNRWA. However, Palestinians displaced after 1949 (e.g., during the 1967 war) generally fall under UNHCR jurisdiction.
2. Not Just "Refugees": Protected Person Status
Many people do not realize that New Zealand protection law goes beyond the 1951 Refugee Convention. If a person does not meet the strict definition of a "refugee" (e.g., their risk is not linked to race, religion, or politics), they may still be recognized as a Protected Person.
This status is derived from two other major international treaties:
A) Convention Against Torture (CAT)
Under Section 130 of the Immigration Act 2009, a person must be recognized as a protected person if there are substantial grounds for believing they would be in danger of being subjected to torture if deported from New Zealand.
B) International Covenant on Civil and Political Rights (ICCPR)
Under Section 131 of the Act, a person is protected if there are substantial grounds for believing they would be in danger of arbitrary deprivation of life or cruel treatment if deported.
Key Difference: While refugee status focuses on why you are being targeted (e.g., your religion), Protected Person status focuses on what will happen to you (e.g., torture or death), regardless of the reason.
3. The Two Ways to Claim Protection in NZ
It is important to distinguish between the two separate pathways for protection in New Zealand.
Method 1: The Refugee Quota (Offshore)
New Zealand accepts refugees who are selected overseas by the UNHCR and resettled here.
The Numbers: New Zealand currently has an annual quota of 1,500 places. These individuals arrive as residents and are supported upon arrival.
Method 2: The Asylum Claim (Onshore)
This is the pathway relevant to the "backup plan" question. A person can arrive in New Zealand on a valid visa (student, visitor, work) and then claim Refugee or Protected Person status.
If you make a claim onshore, the process typically follows these steps:
- Claim Lodged: The asylum seeker completes a 'Confirmation of Claim' form.
- Acknowledgement: The Refugee Status Unit (RSU) acknowledges and accepts the claim (target: within 3 working days).
- The Interview: A Refugee and Protection Officer (RPO) interviews the claimant (target: within 20 working days).
- The Decision: The RPO assesses whether the claimant meets the criteria for Refugee, Protected Person (CAT), or Protected Person (ICCPR) status.
4. The Reality Check: Can I Claim if My Visa Fails?
The short answer is NO.
If your situation genuinely merits protection, you have the right to make a claim. However, using the asylum system as a desperate attempt to stay in New Zealand when other visas fail is an abuse of the system.
Why Frivolous Claims Fail
Refugee and Protected Person status is not just about "something bad happening" to you. The Protection Officer looks at strict legal tests, primarily State Protection:
The Question: Is there a systemic human rights violation in your home country? Is the government complicit in the abuse, or unable to stop it?
The Test: Even if you were harmed by a private individual (e.g., a neighbor or gang member), the Officer will ask: "Can the police or courts in your home country reasonably protect you?"
If the answer is yes—meaning your home country has a functioning law and order system that you could have accessed—your claim will likely fail.
Only in situations where the state is complicit in the persecution/torture, or where the machinery of law and order has completely collapsed, does a claimant usually have a realistic chance of success.
Final Thoughts
Refugee and Protected Person status is a lifeline for those with nowhere else to turn—those facing persecution, torture, or death. It is not a convenient alternative to a work visa.
As for whether New Zealand should increase its annual quota? That is a debate I leave to you.