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Can I claim refugee status in NZ if all other visa options have failed?


We have had some deserving attention to the world refugee problem in the media over the past few days. There has been a debate of sorts that whether New Zealand is doing enough for those who are the most vulnerable and that more refugees should be taken in by New Zealand.

In our practice we do come across the odd question “if all my other visa options have failed, can I claim refugee status.” Something that is said mostly in humor however there is a serious dimension to it as well and I would like to take this opportunity to address those who would like to “claim refugee status” in New Zealand. A bit of reality check couldn’t hurt?

So let’s start with the basics, what is a refugee. In 1951 there was a UN sponsored multilateral treaty, mainly in response to the refugee crisis in the wake of the Second World War, it is popularly known as 1951 Refugee Convention. So the aforementioned convention defines who is a refugee and sets out the rights of individuals who are granted asylum and the responsibilities of nations who grant asylum.

Convention also sets out which people don’t quality as refugees, i.e. war criminals besides providing for some visa free travel for holders of travel documents issued under the convention.

Article 1 of the Convention, as amended by the 1967 Protocol, defines a refugee 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

A note about UNHCR:

Headquartered in Geneva, Switzerland, the Office of the United Nations High Commissioner for Refugees (UNHCR) (established December 14, 1950) protects and supports refugees at the request of a government or the United Nations and assists in their return or resettlement. All refugees in the world are under the UNHCR mandate except Palestinian refugees who fled the current state of Israel between 1947 and 1949, as a result of the 1948 Palestine War, and their descendants, who are assisted by the United Nations Relief and Works Agency (UNRWA). However, Palestinian Arabs who fled the West Bank and Gaza after 1949 (for example, during the 1967 Six Day war) are under the jurisdiction of the UNHCR.

There are two methods that one may become a refugee in New Zealand, firstly under UNHCR, New Zealand has a refugee quota of 750 per year.

Second, one may come to New Zealand on any kind of visa and then claim refugee status. The following steps will take place in such an event

  • Asylum seeker must complete a confirmation of claim

  • The is acknowledged and accepted by the Refugee Services Branch (RSB) within 3 working days

  • The claim is allocated to a RPO (Protection officer) and if required an interpreter is booked.

  • Asylum seeker is interviewed by the RPO, this must happen within 20 working days of the claim being received.

  • Interview report is completed within 15 days of the aforementioned step.

  • Legal submissions within 15 days of the interview report

  • Decision is drafted within 10 days of the above step, after which it goes through a quality control process and decision is made.

The above are the mechanics of the decision making process, coming back to the point “Can I make a refugee claim if all other options have failed” the short answer is NO.

If one’s situation is such that it merits one making a claim for refugee status, by all means, but abusing the system is a NO.

While these matters are very contextual, I would like to point at the following which among other considerations go towards determining a claimants refugee status claim.

The RPO will look at a variety of factors while making a decision. One of which is that is there a systemic human rights violation in the home country of the claimant, is the state in a position to provide the claimant protection? So assuming the answer is no, that's something which would normally be a world event. It would be very hard for a frivolous asylum seeker to corroborate the failure of state machinery.

Even in those situations where something bad may have happened to the claimant, a question that will be asked is “can the law and order mechanism in the claimant’s country be reasonably expected to take care of this issue” and if the answer is yes then the chances of being granted refugee status are diminished.

Only in those situations where the law and order mechanism of the claimant’s home country is completely devastated or is complicit in the abuse, does the claimant have a realistic chance of being accepted as a refugee.

Whether New Zealand should increase its refugee quota? That’s something I leave for your input.

Sources

a) www.legislation.govt.nz

b) GCNZIA course

#RefugeeDay #Refugeequota #UNHCR

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