HUMANITARIAN APPEALS LODGED WITH REFUGEE AND PROTECTION APPEALS
Immigration and Protection Tribunal
Out of time? The intersection between the two streams – refugee/protection and humanitarian
Spengler: There's something very important I forgot to tell you.
Spengler: Don't cross the streams.
Spengler: It would be bad.
Venkman: I'm fuzzy on the whole good/bad thing. What do you mean, "bad"?
Spengler: Try to imagine all life as you know it stopping instantaneously and every molecule in your body exploding at the speed of light.
An innovation of the 2009 Act has been to require persons filing refugee/protection appeals to lodge any appeal on humanitarian grounds against deportation liability at the same time. They may do so in two circumstances:
- The appellant is eligible to lodge a humanitarian appeal (ie, within 42 days of becoming unlawful in New Zealand); or
- The appellant is lawfully in New Zealand but will become eligible to lodge a humanitarian appeal in the future (ie, on becoming unlawful after the expiry of the person’s last temporary visa).
Humanitarian appeals lodged with refugee/protection appeals are received routinely by the Tribunal. In the early days of the Tribunal, only some 20 percent of refugee/protection appellants also lodged a humanitarian appeal, but time and greater understanding of the Act has seen this rise to approximately 80 percent.
But the window for lodgement is small. Refugee/protection appeals must be filed within 10 days of receipt of the decline at first instance (5 days if in custody, which includes the Mangere Refugee Reception Centre and being on conditional release from there). Given the Act’s requirement that any humanitarian appeal be lodged “at the same time” as the refugee/protection appeal, it follows that any humanitarian appeal must also be lodged with the 10-day (or 5-day) window. This can place great pressure on appellants (and representatives) to get the documents in on time.
The Tribunal has recently had to consider the predicament of an appellant who lodged both types of appeal four days out of time, and sought an extension of time for lodgement of both – see AU (Afghanistan) (Ruling on jurisdiction)  NZIPT 502815.
So far as the refugee/protection appeal was concerned, there was no difficulty in extending time. Unlike other types of appeal, the Act provides for an express power to extend time for the lodgement of refugee/protection appeals where “special circumstances warrant an extension”. The Tribunal was satisfied special circumstances existed.
But what of the humanitarian appeal?
In concluding that there was jurisdiction to accept the humanitarian appeal, the Tribunal held that a critical provision of the Act remained the question whether there was still eligibility to lodge such an appeal – in other words, was the person still within the 42 day window at date of lodgement or, alternatively, were they still lawfully in New Zealand? As the Tribunal observed:
“The Act clearly contemplates that there may in fact be good reasons why extension of time is needed in the protection sphere to enlarge the period of time for the filing of an appeal. In the event the application for extension of time in relation to the refugee/protection appeal is successful, whether or not this impacts upon the Tribunal’s jurisdiction to hear any associated humanitarian appeal depends on whether it relates to a current or future deportation liability.”
As to these alternatives, the Tribunal held:
- If the person is liable for deportation and eligible to lodge a humanitarian appeal (being still within the 42 day window at lodgement), there is a right to a humanitarian appeal regardless of whether or not an extension is granted for the refugee/protection appeal. See -.
- If the person is lawfully in New Zealand at the date of lodgement, then (there being no current deportation liability), jurisdiction to hear the humanitarian appeal iscontingent on the grant of an extension of time for lodgement of the refugee/protection appeal. See - and -.
- If the person is liable for deportation but not eligible to lodge a humanitarian appeal (being outside the 42 day window at the date of lodgement), then there is no right to a humanitarian appeal regardless of whether or not an extension is granted for the refugee/protection appeal. See -.
In summary, when considering the late lodgement of a refugee/protection appeal accompanied by a humanitarian appeal, the outcome will be dependent on their status:
- For a person liable for deportation:
- If within the 42-day time limit at lodgement, the appeal can be accepted.
- If not within the 42-day time limit at lodgement, the appeal cannot be accepted.
- For a person lawfully in New Zealand at lodgement, the outcome will follow the application for grant of an extension to lodge the refugee/protection appeal.
Is there a right to a further humanitarian appeal?
It might be thought that the intent of the legislation was clear – if you are a refugee/protection claimant, your one opportunity to ever have a humanitarian appeal considered arises at the time of lodgement of the refugee/protection appeal. Thereafter, one might infer, there will be no further opportunity to have a humanitarian appeal considered.
That view would seem to be reinforced by the then-Minister of Immigration, the Right Honourable David Cunliffe in September 2009, when he stated in Parliament:
“There is no justification for repeat appeal processes that are or appear to be designed simply to elongate the time the claimant can live in the country no matter how often or how decisively the various appellate bodies say he or she has to go. The system has been open to abuse, and the taxpayer has been footing the bill. We have had enough, and the system is being changed. It is being changed in a thoughtful way, not a thoughtless way, because the provisions of Part 7 amalgamate the appellate bodies into one tribunal and give the claimant one shot to make a thorough and comprehensive appeal, both on points of law and on humanitarian grounds. The appellant loses none of his or her substantive rights under the law and, it can be argued, has a better chance of success by being able to deal with all the grounds in one process. Refugees’ rights are not being curtailed, but what is being curtailed is the abuse that has too often occurred, and of which I think the public has had a gutsful.”
It would also seem to be reinforced by section 206(3) of the Act, which provides:
“(3)No person may appeal to the Tribunal on humanitarian grounds against his or her liability for deportation if the person has—
(a)failed to lodge a humanitarian appeal at the same time as lodging an appeal in relation to a claim or a subsequent claim, where he or she is required to do so under this Act; or
(b)had a humanitarian appeal heard by the Tribunal in relation to a claim or a subsequent claim.”
But it is not quite so clear. In DZ (Sri Lanka) NZIPT 502646, 502661 and 502900, the Tribunal was required to consider whether persons who had already had a humanitarian appeal (attached to a refugee/protection appeal), could lodge a further such appeal at a later date.
The three appellants in question were not connected and arose on differing grounds:
- One had a first humanitarian appeal in conjunction with a refugee/protection appeal, then became unlawfully in New Zealand. Given a further temporary visa by Immigration New Zealand on lodging a second refugee/protection claim, he sought to lodge a second humanitarian appeal in conjunction with the second refugee/protection appeal.
- The second also had a first humanitarian appeal in conjunction with a refugee/protection appeal. He was unlawfully in New Zealand but was given a temporary visa by the Tribunal on the humanitarian appeal, followed by a further visa from Immigration New Zealand. He lodged a second refugee/protection appeal, accompanied by a second humanitarian appeal. Eventually, he became unlawful again but was given a further visa by Immigration New Zealand and sought to lodge a third humanitarian appeal in conjunction with a third refugee/protection appeal.
- The third had a first humanitarian appeal in conjunction with a refugee/protection appeal. She became unlawfully in New Zealand but was given a "section 61" one-day visa, giving rise to a fresh 42-day period for lodging a humanitarian appeal. She sought to lodge a second humanitarian appeal (not, this time, in conjunction with a refugee/protection appeal).
Arguments by counsel for the three appellants were unconvincing but they were joined, at least in terms of the outcome sought, by the respondent Ministry, which also argued that a right of further humanitarian appeal existed in some circumstances (notwithstanding section 206(3)).
The tenor of the respondent’s submissions was that the limitation on any further humanitarian appeal related only to appeals arising from that period or ground of deportation liability. In other words, it was argued, if the person was to later become liable for deportation on different grounds (say, because they had become unlawfully in New Zealand again, after an intermediate period of lawfulness), then the Act did not preclude them lodging a further humanitarian appeal in reliance on the new eligibility to do so.
One can see the point. As the Tribunal’s decision recorded at :
“[T]here is a long-developed practice for Immigration New Zealand to grant, in certain cases, a discretionary short-term visa under section 61, in order to generate a 42-day appeal period so that the person can lodge an appeal and have their humanitarian circumstances tested. This pragmatic process operates as a safety valve for cases of genuine exceptional humanitarian circumstances and can prevent injustice or undue harshness occurring.”
Nevertheless, the Tribunal expressed considerable reservations as to whether Parliament has really intended to create an avenue for further humanitarian appeals by refugee/protection claimants who had already had one considered (and rejected). However, given that it was an arguable interpretation of the Act (and one supported by the respondent) and in the absence of any higher authority on the point, the Tribunal exercised caution and accepted the interpretation most favourable to claimants.
It follows that a claimant who has had a humanitarian appeal lodged with a refugee/protection appeal in the past, is not precluded from lodging a further humanitarian appeal in the future, so long as their eligibility to do so arises is relation to a different, or fresh, ground of deportation liability.