Lianne Dalziel Speech: Beyond Tampa

Address to the Auckland District Law Society’s Refugee & Immigration Committee Auckland Club Shortland Street Auckland

Thank you for inviting me to speak to you this evening. Last year I expressed my disappointment that I could not address my original topic, ‘Beyond Tampa’, because it would have touched on issues of detention, which at that time were sub judice.

I thought of the High Court action relating to the Job Search Visa and also the Entrepreneur category of residence where such follows a Long Term Business Visa. Both matters relate to the November 20 changes from last year. However, the decision has come out today and although I haven’t had a chance to read it in detail it appears that the judge has tied temporary entry policy to residence policy. Naturally my advisors and I will be looking at this carefully and making a decision as to whether to appeal.

I did note with interest the capacity of the plaintiff (NZAMI) to find the resources to mount a legal action against the government on behalf of people who have not even qualified for consideration as migrants to NZ, when they tell me they cannot afford to defend themselves against threatened actions when they commence the process of withdrawing membership from NZAMI members who have breached NZAMI standards or been found guilty of dishonest or fraudulent practices. I am not criticising their decision to take the government to court – I am simply questioning their judgement about not also defending the professionalism and standards of their membership, who are all damaged by the actions of the few. I’m going to quote from a letter I received from a man who is here on a Job Search Visa from India. His JSV doesn’t expire until September, but he’s already booked to go home. That is the result of the multiple job rejections he has already experienced. He speaks of meeting other Indians, 95% of whom he says he has met working in menial jobs, despite being highly qualified. He tells me that many have had to underplay their qualifications in order to get jobs they are grossly over-qualified for. He is going home, because he has pride. He is willing to take a step down, but he is not prepared to go to the bottom of the ladder and try to climb his way back to where he is now. He says:

“In my case, I am almost ruined. I left my Class-1 Engineer post in India, and I have already spent about ½ a million rupees. Even I had to ask my son in the UK to send some money meant for his studies.”

This is only one of many letters my colleagues and I receive, where people truly believed life would improve when they came to New Zealand, but they have experienced rejection and disappointment. Where are the consultants when the hopes, aspirations and dreams of these people are dashed? Some ensure that their clients arrive with realistic expectations. Some have developed post arrival settlement services for their clients. However, the vast majority see their role as ended once the visa or permit is stamped in the passport.

No government can afford such an approach to immigration policy. As I have said on more than one occasion, settlement is not a one-way street. Welcoming communities are an integral component of successful settlement, and New Zealanders cannot bear to see the waste of talent and skill that is represented by the professional migrant working as a taxi driver, forecourt attendant, cook or cleaner.

I am determined that the work that we have done and will continue to do this year will ensure that everyone who migrates to New Zealand is able to utilise their skills and talent to their full potential.

When I was here last year I said we had to shift from a country that sits back and waits to receive applications from people who want to move here, regardless of their actual prospects, to a country which assesses what our needs are, and goes out to the world to actively recruit to meet those needs. And that is where we are heading.

You may have noticed in the Budget announcements yesterday, that a considerable resource has been added to the NZIS Budget to put in place the infrastructure to enable us to do just that.

Anyway, the real topic of my address this evening is ‘Beyond Tampa’. I did say that once the detention case was resolved, I would happily return to address these issues, which I believe are extremely important in the context of New Zealand’s obligations as a signatory to the UN Convention on the Status of Refugees.

So this is my opportunity to live up to that promise, and to lead debate on a subject that is very important to me, not only as Minister of Immigration, but also as a member of a government that takes its role as a good international citizen very seriously indeed.

There has been considerable debate on refugee issues in New Zealand over the past couple of years; unfortunately not all of it has been well intentioned or well informed.

One of the problems has been one of definition. Who are the refugees that New Zealand accepts as residents each year?

The first group are those who are described as quota refugees. They arrive under the UNHCR resettlement programme, and number 750 a year. They come from a variety of backgrounds and circumstances.

As Minister of Immigration I have worked with UNHCR so that 300 of the total each year are family-linked to New Zealand. This has been an excellent mechanism for ensuring that resettlement prospects for existing refugees and the new arrivals are enhanced.

In addition, we have a refugee family quota, which commenced last year, with 300 places for refugee family reunion. It is a small beginning, but it must be remembered that it is an extra category for refugee family reunion, as the family sponsored stream is also available to refugees.

The third category is made up of those that are described as asylum seekers, whose claims for refugee status have been approved by the Refugee Status Branch of the NZIS or the Refugee Status Appeal Authority. Accepted claims for refugee status range from 200-300 a year.

Significantly it is the latter group, successful refugee status claimants, that attract the greatest interest. I believe this is because they represent a relatively small percentage of the total that claim refugee status. This means the cost associated with this group is significantly higher than for the rest.

The public spotlight was cast squarely on asylum seekers during the Tampa incident. New Zealand was asked by Australia, a request supported by UNHCR, to bring some of those rescued by the Tampa to New Zealand to have their claims determined. This was the first occasion where asylum seekers were specifically brought into the country for this purpose. In fact we expend a considerable resource screening for potential asylum seekers and interdicting those that we can before they make it to one of our airports. So this was a unique situation.

Interestingly the NZ Herald published two opinion polls, with respect to the government’s decision to bring up to 150 asylum seekers to New Zealand. The first showed 49% in favour and 46% opposed. After September 11 a further poll showed the numbers had shifted. This time they were 59% in favour and 35% opposed. To be frank, I was surprised.

The reason for the result was, in my view, two-fold. First there was the strong leadership of the Prime Minister, the Rt Hon Helen Clark, and second, was the massive media exposure of the circumstances that might drive people from Afghanistan. A level of public understanding filled the vacuum that existed before. That is why it is important that there is education about the circumstances that drive people from their homelands, so that ignorance and fear do not fuel prejudice, which is a barrier to successful resettlement. Knowledge is a powerful weapon against prejudice.

The Tampa issue also raised our awareness of people smugglers. New Zealand has introduced punitive new laws to act as a deterrent to people smugglers, and we have committed some of our annual quota to the region, so that UNHCR mandated (and for the first time Australia determined) refugees are included. The idea is to send the message that utilising appropriate determination processes can lead to resettlement, thereby diminishing the market for people smugglers.

However, there is no question that there is resentment among those with families in refugee camps that their family’s places are essentially taken by those who have the resources to have their claim determined elsewhere.

One of the issues arising out of this are those who essentially select their destination moving through many signatory countries before a claim is lodged. The 1951 Convention and 1967 protocol were not developed with this in mind and it does raise issues. If all of the resources currently applied across the world to determination processes were applied to resettlement, then many more durable solutions could be delivered to many more people.

New Zealand’s approval rate over the past several years rarely exceeds 20%. So up to 80% of those who seek asylum in New Zealand need to be returned either to their country of citizenship or to their last point of embarkation under the ICAO convention. The point that I am making is that we could do more for the quota refugees we resettle, and for those who are genuine refugees if we didn’t have to expend this huge resource on the vast majority who come without a genuine claim.

International commentary on the Convention has raised the issue of ‘burden and responsibility sharing’. Receiving countries could all contribute more if this could be addressed. This is especially so when one considers the extent of abuse of determination processes.

New Zealand is no exception and has been the target of manifestly unfounded and abusive claims over the past decade, which has put enormous pressure on our refugee status determination process. I make no apology for expressing nothing but contempt for those who deliberately abuse the Convention in this way, and for all those who aid and abet that process.

I have made the point before that the problem that has arisen is that when the UNHCR mandates refugees who have fled across borders, there is a three-tier approach to the kind of durable solution they will seek on behalf of these refugees. These are in order of preference, repatriation, resettlement in country of first refuge or the region and finally third country resettlement. The reason these are in order of preference is because of the durability of the solution each represents – third country resettlement is the least preferred option. And yet it is the only option that is presented when an asylum seeker makes a claim that is accepted in a Convention country.

This is why I have been so passionate about the need to resolve what are essentially secondary movements – they are the bread & butter, or, as I described it in Bali, ‘the champagne & caviar’ of the people smugglers.

It is they who for a fee, will select a destination, and regardless of the legitimacy of the individual claim will seek to secure a migration outcome.

My view is that we must attempt to intervene at every point along the people smuggling route. Those who have legitimate claims must be encouraged to claim status in the first country that is a signatory to the Convention.

Secondary movements ought to be discouraged, but where a legitimate claim is established, the full range of options should be available. Repatriation when it is safe to do so, resettlement in the region and, finally, third country resettlement.

Those that do not have legitimate claims should be returned promptly, with repatriation agreements where necessary with source countries. In addition when circumstances allow, the return of genuine refugees, who wish to be part of rebuilding their country of birth, ought to be facilitated on a voluntary basis. I regard it as a success when those to whom we offered protection gain the one thing they arrived without, and that is the freedom to choose to return.

The strategy New Zealand has adopted to combat the abuse has been to clear the backlog of claims at the first level of determination, although some of this backlog has now transferred to the Appeal Authority. However, I am confident that once we have this under control, claims will be dealt with sufficiently quickly, so that those without valid claims will have no incentive to lodge them, and those with genuine claims will be confirmed quickly so people can get on with their lives.

Our distance from source countries and transit points has protected us thus far from mass arrivals, and with fewer than 2000 claims in any given year, and this number has fallen dramatically over the past year, our concerns do seem to pale into insignificance against countries who host refugee populations that almost match our entire population.

In addition we have taken steps to participate in the international agencies that seek international solutions to this global problem. New Zealand is now a full member of the Executive Committee of UNHCR, and we will soon be considering membership of the IOM.

Finally I want to address the issue of detention. Now that the Court of Appeal has determined the Refugee Council case, I am free to express the concerns I had about the challenge to the September 18 Operational Instruction, providing for the approach to be adopted to border claimants, who arrived without documentation.

The expression I used at the time was that New Zealand has the right to know who is entering the country, where they are from and why they are here. Until we could be satisfied as to these matters, including any security risks and the risk of absconding, then we had no option but to detain. Two levels of detention were available at the time – corrections facility or Mangere Refugee Resettlement Centre. It was not until several months later that the ability to release on conditions was included in the law.

I was very satisfied to read the Court of Appeal decision, because it essentially upheld the ability to use section 128 of the Immigration Act for detention in circumstances that involved refugee claims, and also supported the approach adopted in the operational instruction. The Court was very clear that we were entitled to take the heightened security risk environment into account, and somewhat more elegantly stated that :

“A refugee status claimant may give no objective reason to suspect in terms of s128B(1)(a); yet to allow such a person to be at large in New Zealand, when their identity, bona fides and antecedents were unknown, might very well be wholly inappropriate.”

That’s legal-speak for ‘who they are, where they’re from and why they’re here’. Now that the case is over, I can also say how disappointed I was to find “minutes” of a meeting I attended in good faith to try and resolve concerns about the operational instruction, being produced as evidence in the Court, particularly as I was unaware that such minutes were being taken, nor that an individual’s interpretation of my comments would be produced in this way. I regard this as unethical and unprofessional. It has made me very wary of being able to engage in the kind of ‘free and frank’ exchanges I have enjoyed since becoming Minister.

As I said earlier, I do not dispute anyone’s right to take the government to Court, however, I believe much more can be achieved if we simply talk to each other. This discussion, for a start, has been delayed for an entire year, and I am very keen to discuss the direction the government is taking in terms of what I have said is a global problem.

That being said, I believe that New Zealand has a valuable contribution to make in local, regional and international terms with respect to refugee issues. In the field of refugee law, the jurisprudence of our Refugee Status Appeal Authority is second to none, and claims are dealt with much more quickly today than they were. Our commitment to the UNHCR Resettlement Programme sees us as one of fewer than 20 countries in the world making that contribution. Our willingness to participate in regional and international forums identifies NZ as part of the solution. Our refugee resettlement programme has seen significant improvements over the past three years. And we are committed to supporting international conflict resolution and the promotion of international human rights, to combat the evils of persecution and terror that drive people from their country of origin.

The Tampa incident, was by no means the beginning of New Zealand’s history in this regard, but it will always be regarded as an important milestone and a symbol of the role a small country can play when called upon to do so. It will always represent a moment in time when I felt particularly proud to be a New Zealander.

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