C and ANOR v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC 2155 [30 August 2019]

C and ANOR v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC2155 [30 August 2019]NOTE: THE CONFIDENTIALITY OF THE NAMES AND IDENTIFYINGPARTICULARS OF THE APPELLANTS AND OF THEIR CLAIMS ORSTATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THEIMMIGRATION ACT 2009. SEEhttp://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440836.htmlIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-217[2019] NZHC 2155UNDER the Social Security Act 1964IN THE MATTER Of an appeal by way of Case Stated from thedetermination of the Social Security AppealAuthority at Wellington under section 12Qof the Social Security Act 1964BETWEEN CFirst AppellantSSecond AppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIAL DEVELOPMENTRespondentHearing: 25 March 2019Appearances: S J Fraser and S M Wadham for AppellantsM Deligiannis for RespondentJudgment: 30 August 2019JUDGMENT OF CLARK JContentsIntroduction ......................................................................................................... [1]Background .......................................................................................................... [4]Immigration history........................................................................................... [4]Application for emergency benefit .................................................................. [10]Authority's decision .......................................................................................... [13]Preliminary matters .......................................................................................... [22]The case stated ................................................................................................ [22]An issue of mootness ....................................................................................... [25]The appeal .......................................................................................................... [29]Appellants' position ......................................................................................... [29]The Ministry's position ................................................................................... [33]Assessment ......................................................................................................... [34]Relationship between ss 61 and 74A of the Social Security Act...................... [34]Section 9 of the Immigration Act ..................................................................... [38]Section 164 limitation on deportation ............................................................. [41]Inconsistency with the Refugee Convention? .................................................. [46]Did the Court of Appeal doubt the correctness of Rajabian? ......................... [56]New Zealand Bill of Rights Act 1990 .............................................................. [59]Does the Social Security Act confer a discretion to be satisfied a person isrecognised as a refugee? ................................................................................. [61]Summary ............................................................................................................ [65]Result .................................................................................................................. [67]Introduction[1] Ms C and her son, Mr S, were claimants for refugee status. While awaitingdetermination of their claims they applied for emergency benefits pursuant to s 61 ofthe Social Security Act 1964 (the Social Security Act).1 Their applications foremergency benefits were declined on the delegated authority of the Chief Executiveof the Ministry of Social Development (the Ministry) on the grounds the appellantswere unlawfully present in New Zealand. The appellants unsuccessfully appealed theMinistry's decision to a Benefits Review Committee and subsequently to the SocialSecurity Appeal Authority (the Authority).2 The appellants now appeal to this Courtunder s 12Q of the Social Security Act, which allows appeals to the High Court byway of case stated on a question of law.1 The Social Security Act 1964 was repealed on 26 November 2018 by s 455(1) of the SocialSecurity Act 2018. The 2018 Act is not relevant to this appeal, although s 74A has been materiallyreproduced in ss 19 and 205 of the 2018 Act.2 Re C [2017] NZSSAA 51 [Authority's decision].[2] This Court is required to determine the following question:3Did the Authority err in law in determining that, because the appellants werenot lawfully present in New Zealand and had not been recognised as refugees,they were therefore not entitled to an emergency benefit pursuant to s 74A(1A)of the Social Security Act 1964?[3] I have concluded the question is to be answered in the negative and that,accordingly, the appeal must be dismissed.BackgroundImmigration history[4] Ms C was born in Rhodesia (modern day Zimbabwe) in 1967 but immigratedto South Africa in 1990 where she gave birth to her son, Mr S and met her husband,Mr C. Ms C never obtained South African citizenship and her permanent residencythere has now lapsed. Mr C and Mr S are South African citizens.[5] The family moved to New Zealand in June 2008. They were granted visitors'permits valid until September 2008. In August 2008, Mr C applied for an EssentialSkills work visa to undertake a position as a carpenter in Auckland. He was granted awork permit in December 2008, valid until December 2010. Ms C was granted aconcurrent work permit, while Mr S was granted a student visa as a dependent child.Mr C was granted further work visas in November 2010 and February 2012 withcorresponding visas also being granted to Ms C and Mr S. In July 2012, ImmigrationNew Zealand declined Mr C's application for residency within the Skilled MigrantCategory. He unsuccessfully appealed this decision to the Immigration and ProtectionTribunal.[6] In June 2013, Immigration New Zealand declined to grant Mr C a further workvisa because it was not satisfied his employer had made genuine attempts to employNew Zealanders. Ms C and Mr S were correspondingly declined further visas. InFebruary 2014, the Hon Nathan Guy requested ministerial intervention on behalf of3 This question differs slightly from the question posed by the Authority. It was agreed with counselat the hearing pursuant to r 21.12(2) of the High Court Rules 2016. I say a little more about thereformulated question below at [22]–[24].the family, noting they feared for their safety if they were required to return to SouthAfrica. In May 2014, the Hon Nikki Kaye, then Associate Minister of Immigration,decided to grant Ms and Mr C one-year work visas, and Mr S a one-year visitors' visa.[7] In July 2015, after the one-year visas expired, the family appealed theirdeportation liability to the Immigration and Protection Tribunal on humanitariangrounds. The Tribunal dismissed the appeal in September 2015. Ms C submittedMr C was reliant on her (and others) for mental, emotional, physical and financialsupport. He has epilepsy and his right temporal lobe had been surgically removed.Mr S, who is now 27 years old, was also dependent on Ms C because he was unableto work (having only been granted visitors' visas). In October 2015, Ms C submitteda further ministerial request on the basis that, if deported, she would be required toreturn to Zimbabwe while her dependants could return to South Africa as citizens. Sheexpressed concerns about possible violence in Zimbabwe against people of Europeandecent. In February 2016, the Hon Craig Foss, then Associate Minister ofImmigration, declined to intervene.[8] Deportation orders were served on the family in May 2016. On 4 July 2016,they were detained by police and taken into custody until the next day. They attemptedto submit further requests for work visas, but Immigration New Zealand refused toconsider the requests because of the deportation orders. Each then submitted a claimfor refugee status on 5 July 2016. Their claims were declined by the Refugee StatusBranch on 29 September 2017. The Refugee Status Branch decision was upheld onappeal to the Immigration and Protection Tribunal on 27 June 2018. No further appealof that decision was pursued within the statutory timeframe.[9] In September 2018, the Hon Grant Robertson sought ministerial interventionon behalf of the family. Later that month, the Hon Kris Faafoi, Associate Minister ofImmigration, cancelled the family's deportation liability and agreed to grant two-yearwork visas, subject to the health and character requirements for temporary entry beingmet. Despite Mr C's evident health problems, and the difficulties they create for him,work visas were granted on 11 April 2019.Application for emergency benefit[10] On 25 July 2016, Ms and Mr C met with a case manager at the Otaki Work andIncome Service Centre to discuss the possibility of applying for an emergency benefitpending the outcome of their applications for refugee status. They were told they wereineligible for an emergency benefit because they did not hold a current visa or permit.Following discussions with their lawyer, who assured them they should be eligible,Ms and Mr C and Mr S applied for emergency benefits on 30 August 2016. Mr andMs C's application was declined that same day. Mr S's application was declined on12 September 2016.[11] On 12 September 2016, Ms C and Mr S applied for internal review of thedecisions to decline their applications for an emergency benefit. On 16 September2016, the decisions were upheld by the Service Centre Manager. Ms C and Mr S thensought review by a Benefits Review Committee. Ms C and Mr S appeared before theCommittee at a hearing on 11 October 2016. The following day, the Committeeupheld the decision declining the applications for an emergency benefit.[12] On 19 November 2016, Ms C and Mr S appealed to the Authority. At the timeof the hearing before the Authority on 6 April 2017, the claims for refugee status hadyet to be determined. On 6 September 2017, the Authority dismissed the appeals. Itis from the Authority's decision that Ms C and Mr S appeal to the High Court.Authority's decision[13] At the outset the Authority contrasted the appellants' position with ill-foundedrefugee status claims commonly made in an attempt to delay enforcement action. Itwas clear from the appellants' evidence their circumstances were different from thosewho sought to abuse the refugee and protection status jurisdiction. But, as theAuthority recorded, it does not and could not determine refugee status or make otherdeterminations relating to immigration status. The sole issue raised by the appeal waswhether the appellants were "entitled to seek an emergency benefit under s 61 of theSocial Security Act 1964".[14] The Authority considered whether s 74A of the Social Security Act excludedthe appellants from entitlement to an emergency benefit. Section 74A provides:74A Persons unlawfully resident or present in New Zealand(1) A person is not entitled to receive a benefit who is—(a) unlawfully resident or present in New Zealand; or(b) lawfully resident or present in New Zealand but only by virtueof holding a temporary entry class visa.(1A) Despite subsection (1), the chief executive may take either or both ofthe actions specified in subsection (1B) if the chief executive issatisfied that the person is—(a) a person lawfully present in New Zealand who is awaiting theoutcome of his or her claim for recognition as a refugee or aprotected person; or(b) a person who is recognised as a refugee or a protected person;or(c) a person applying for a residence class visa under theImmigration Act 2009 who is compelled to remain inNew Zealand because of unforeseen circumstances.(1B) The actions referred to in subsection (1A) are—(a) grant the person an emergency benefit under section 61:[15] The Authority identified the two critical provisions as subs (1)(a) and (1A)(a),which turn (respectively) on whether the appellants were "unlawfully present inNew Zealand" or "lawfully present in New Zealand" while awaiting the outcome of aclaim for recognition as a refugee.[16] The first of two decisions the Authority discussed was Rajabian v ChiefExecutive of the Department of Work and Income New Zealand (Rajabian). Rajabianalso concerned an application for an emergency benefit by a claimant for refugeestatus.4 In ascertaining the meaning of s 74A, Potter J looked to the Immigration Act2009 and the definition of "unlawfully in New Zealand" contained in s 9(1) of thatAct:4 Rajabian v Chief Executive of the Department of Work and Income New Zealand HC AucklandCIV-2004-485-671, 12 October 2004.9 Meaning of unlawfully in New Zealand (in relation to person who is notNew Zealand citizen)(1) In this Act, a person who is not a New Zealand citizen is unlawfullyin New Zealand if the person is in New Zealand but—(a) is not the holder of a visa granted under this Act; or(b) has not been granted entry permission under this Act.[17] The Authority then referred to Aziz v Chief Executive of the Ministry of SocialDevelopment (Aziz) in which, similarly, the Court of Appeal relied on the ImmigrationAct definition when construing s 74A of Social Security Act. As the case did notinvolve a person claiming refugee status, the Court of Appeal added:5It is therefore unnecessary to say anything more about Rajabian, and we leaveopen whether Rajabian was correctly decided.[18] Referring to the Court of Appeal's comment, the Authority observed:6The Court did not elaborate on why it raised a doubt as to whether theRajabian decision was correctly decided. It appears that, potentially, the Courtwas mindful of the terms of the Convention, and the Protocol, which areincorporated into the Immigration Act 2009 (as they were under theImmigration Act 1987). The terms of the Refugee Convention are, applied aspart of New Zealand domestic law. The Refugee Convention has provisionsrelating to the lawfulness of a refugee's presence in the country of refuge.[19] The Authority then considered the "core principle" of the Convention Relatingto the Status of Refugees (the Refugee Convention)7 contained in art 33(1) — the"non-refoulment" obligation. The non-refoulment obligation is incorporated into NewZealand's domestic law by s 164 of the Immigration Act:164 Limitation on deportation of persons recognised or claimingrecognition as refugee or protected person(1) No person who is recognised as a refugee or a protected person inNew Zealand, or who is a claimant, may be deported under this Act.5 Aziz v Chief Executive of the Ministry of Social Development [2011] NZCA 364 at [24].6 Authority's decision, above n 2, at [28].7 Convention Relating to the Status of Refugees 189 UNTS 150 (signed 28 July 1951, entered intoforce 22 April 1954).(3) A refugee or a claimant for recognition as a refugee may be deportedbut only if Article 32.1 or 33 of the Refugee Convention allows thedeportation of the person.[20] The Authority reasoned that s 164 of the Immigration Act might have somebearing on whether a person claiming refugee status is lawfully present inNew Zealand for the purposes of s 74A of Social Security Act. Ultimately, however,the Authority regarded itself as bound by Rajabian and unable therefore to depart fromthe principles established in that case, namely, that whether a person is "unlawfully"or "lawfully" resident or present in New Zealand is to be determined by reference tothe definition of "unlawfully in New Zealand" in s 9(1) of the Immigration Act. Thelegislative amendments to s 74A since Rajabian did not materially change theprovision and Rajabian continued to be binding on the Authority.[21] The Authority reached the following conclusions and dismissed the appeals:8(a) The fact the appellants had no visa entitling them to be in New Zealandinevitably meant they were excluded by s 74A from any entitlement toa benefit.(b) Section 74A(1)(a) excluded the appellants and s 74(1)(b) provided noexception. They were unlawfully in New Zealand and not lawfully inNew Zealand for the purposes of that section.(c) Section 74A(1A) could not apply to the appellants as they were notlawfully present and had not been recognised as refugees.Preliminary mattersThe case stated[22] In its case stated, the Authority framed the following questions of law for theopinion of the High Court:a. Should the principles in the Rajabian case be reconsidered?8 Authority's decision, above n 2, at [53]–[55].b. If the answer to the first question is "yes", was the appellant lawfullypresent in the [sic] New Zealand for the purposes of s 74A of the Act?[23] At the commencement of the hearing I raised with counsel my concern that noproper question of law was raised by the case stated. A party before the Authoritymay, by way of case stated, appeal to the High Court "on a question of law only".9Counsel shared my concern and agreed to reframe the questions so as to raise aquestion of law. Ultimately, the question set out at [2] above was settled.[24] In the course of communications with counsel following the hearing (discussedfrom [25] below) it transpired that Ms Deligiannis, for the Ministry, and Mr Fraser, forthe appellants, each had recorded slightly different formulations of the question fromthat which I had recorded. Having listened to the recording of this part of the hearingI have satisfied myself that the question agreed with counsel is accurately stated at [2]above.An issue of mootness[25] During the hearing I asked counsel to advise me of the immigration status ofthe appellants between 2008–2016. That information was not before the Court and Iwished to know the outcome of the appellants' claims for recognition as refugees.Mr Fraser was uncomfortable with that request for evidence. While I understood hisconcern (that it was not relevant to the legal question before me), it seemed to meartificial, in the context of a case where the ultimate issue had been decided byreference to their immigration status, not to have a complete picture of the appellants'immigration status.[26] The following further documents were filed after the hearing:(i) affidavit of Ms C affirmed 10 April 2019;(ii) Mr Fraser's accompanying memorandum;(iii) an affidavit of Bruce Jenkins, Immigration Officer, sworn 16 April9 Social Security Act 1964 s 12Q.2019, providing the appellants' immigration history; and(iv) a memorandum of counsel for the respondents outlining the legislativehistory to the Social Security Act 2018 and annexing a copy of theAttorney-General's report to the House of Representatives prepared inaccordance with s 7 of the New Zealand Bill of Rights Act 1990(NZBORA).[27] Following receipt of the affidavits, it appeared to me the issues underlying theappeal were moot. The claims to be recognised as refugees made on 5 July 2016 byeach of the family members had been declined, their subsequent appeals dismissed,and no further appeals had been made within the statutory timeframe. As well, allappellants were lawfully present in New Zealand and able to work pursuant to theirwork visas. In a minute to counsel, I noted that while there is a discretion to determinean appeal that has become moot, the discretion is to be exercised with caution and onlywhere there is good reason to do so in the public interest.10 My preliminary view wasthat, as there was existing High Court authority on the very question raised by theappeal, if this Court were to depart from existing authority, it would be improper to doso on moot facts. I invited counsel to file memoranda in response. Mr Fraser soughta month in which to respond.[28] Ultimately, having considered counsel's respective memoranda, I concludedthere is a live issue for determination. Had the appellants been successful on thisappeal, they may have been entitled to payments of their benefits commencing from30 August 2016, the date their applications were received.11 Any such paymentswould cease from the date the appellants were no longer eligible to receive a benefit.In effect, the appellants may have received back-dated payments. The appellants mayalso have had an arguable case under s 80AA to extend their back-dated payments tothe time of their first visit to Otaki Work and Income on 25 July 2016, if theyestablished the Ministry erroneously dissuaded them from lodging applications.10 Baker v Hodder [2018] NZSC 78 at [32].11 Social Security Act 1964, s 80(1)(b).The appealAppellants' position[29] The appellants say Rajabian should not be followed because it is inconsistentwith New Zealand's international obligations under the Refugee Convention, asamended by the Protocol Relating to the Status of Refugees.12[30] Mr Fraser also advanced a further argument that was not considered by theAuthority. Referring to s 74A(1A)(b), which allows an emergency benefit to begranted to "a person who is recognised as a refugee", Mr Fraser submitted the Ministry"has discretion to be satisfied an applicant for refugee status is recognised as arefugee". He submitted that the appellants had been recognised as refugees becausetheir claim for refugee status had been accepted for consideration pursuant to s 134 ofthe Immigration Act.[31] Mr Fraser also referred to the rights not to be deprived of life and not to besubjected to cruel, degrading, or disproportionately severe treatment under ss 8 and 9of NZBORA.[32] Finally, Mr Fraser advanced the argument s 61 of the Social Security Act is astand-alone provision not limited by s 74A.The Ministry's position[33] The Ministry takes the position the law was correctly stated in Rajabian.Ms Deligiannis submitted Parliament is entitled to draw bright lines in settingeligibility for social security benefits and immigration status is one such bright line.The appellants were unlawfully present in New Zealand by virtue of s 9 of theImmigration Act and not eligible, therefore, to a benefit. Ms Deligiannis rejected thecontention that the Rajabian approach is inconsistent with New Zealand's obligationsunder international law.12 Protocol Relating to the Status of Refugees 606 UNTS 267 (signed 31 January 1967, entered intoforce 4 October 1967).AssessmentRelationship between ss 61 and 74A of the Social Security Act[34] I deal first with that part of the appellants' case engaging the relationshipbetween ss 61 and 74A of the Social Security Act.[35] Under s 61, the Ministry may grant emergency benefits in cases of hardship.Section 61 confers on the Ministry a power to grant emergency benefits to thosewithout sufficient means for themselves or dependants and who are not qualified toreceive a main benefit under the Social Security Act. The grant of the benefit is in theMinistry's discretion and is subject to such conditions as the Ministry thinks fit toimpose.[36] Relying on the breadth of the discretion conferred on the Ministry, Mr Fraserargued an emergency benefit can be granted to anyone who satisfies s 61 as it is astand-alone provision. In particular, he argued it is not subject to s 74A.[37] The argument that s 61 enables the grant of an emergency benefit, despite thes 74A thresholds, is untenable. A similar argument was advanced in Aziz. The Courtof Appeal rejected the proposition that s 61 was a general empowering provisionapplying wherever there is hardship.13 Mr Fraser's point that s 61 does not appear tohave been argued "as a stand-alone ground" in Aziz does not advance the appellants'position. Detailed and expansive arguments were made by Mr Aziz's counsel. Nonewas accepted by the Court of Appeal.Section 9 of the Immigration Act[38] The Court of Appeal was in no doubt that s 74A is to be interpreted by referenceto what is now s 9 of the Immigration Act, (set out above at [16]). After rejecting thearguments made by Mr Aziz's counsel, the Court of Appeal stated:[20] First, the expressions "unlawfully resident or present in NewZealand" and "lawfully resident or present in New Zealand" in s 74A of theSocial Security Act are to be interpreted by looking at the Immigration Act.Mr McKenzie's point that the two Acts have different objects reinforces rather13 Aziz v Chief Executive of the Ministry of Social Development, above n 5, at [18]–[20].than detracts from this point. The Immigration Act is the statute which governswhether a person is lawfully or unlawfully in New Zealand. Assistance indetermining the lawfulness of a person's status in New Zealand is not to befound in the Social Security Act, because that is concerned with eligibility forbenefits. Section 74A introduces the concept of residence, because it isrelevant to eligibility for what Mr McKenzie termed "standard" benefits. Wethink Mr McKenzie was referring there to all the benefits available under theSocial Security Act, other than the emergency benefit or the special benefitspecifically provided for in s 74A of the Act.[21] Putting aside the concept of residence, which is not relevant toMr Aziz, s 74A refers to a person being unlawfully or lawfully "present inNew Zealand". The lawfulness of a person's status in New Zealand is to bedetermined by reference to s [9] of the Immigration Act. In terms of thatsection, Mr Aziz was unlawfully in New Zealand during the interregnumbecause he neither held a permit to be in New Zealand nor an exemption fromthe requirement to hold a permit. We see no significance in the differentwording used in s 74A and s [9]. Reinforcing this is the fact that s [14(2)]provides that the fact that a person has applied for a [visa] does not render thatperson's "presence in New Zealand" lawful. That wording is indistinguishablefrom the s 74A(1)(a) and (b) wording "present in New Zealand".[39] The Court of Appeal also found in the information disclosure provisions of theImmigration Act "powerful support" for the view that s 74A is to be interpreted byreference to the Immigration Act.14[40] In short, the Court of Appeal aligned its approach to the interpretation of s 74Awith that adopted by Potter J in Rajabian. Mr Fraser invites this Court to depart fromRajabian. I see no basis for doing so. I adopt Potter J's analysis and approach,particularly in light of its endorsement by the Court of Appeal. Mr Fraser submittedthe Court of Appeal raised a doubt about whether Rajabian was correctly decided. Ido not agree, but it is convenient to discuss this point a little later.Section 164 limitation on deportation[41] The appellants' next argument relies on the Authority's suggestion that s 164of the Immigration Act (set out above at [19]) might have some bearing on whether aperson claiming refugee status is lawfully present in New Zealand for the purpose ofs 74A. In essence, the argument is that because s 164 prevents deportation of a personclaiming refugee status, refugee claimants are in the same position as New Zealand14 At [22]. Section 141A of the Immigration Act 1987 permitted immigration authorities to discloseinformation to the social security authorities for the purpose of verifying a person's entitlement toa benefit. That provision has been materially reproduced in s 298 of the Immigration Act 2009.citizens who, likewise, cannot be deported. The logical corollary of this argument isthat every person awaiting the outcome of her or his claim for recognition as a refugeewould be lawfully present in New Zealand thus rendering redundant the words"lawfully present in New Zealand" in subs (1A)(a). Such a construction is to beavoided.15[42] It is also clear from the speech of the Hon Jenny Shipley, when introducing theamendment bill leading to the enactment of s 74A in its present form, that the purposeof the amendment was to ensure only those people lawfully in New Zealand would beentitled to receive benefits:16The amendment to section 74A in clause 17 deals with changes to allowemergency benefit payments to be paid to lawfully resident refugee applicants.Under current legislation, people who have applied for refugee status inNew Zealand qualify for an emergency benefit. That applies equally to peoplewho are both lawfully and unlawfully in the country. This Bill contains achange that will allow the payment of emergency assistance to those peoplewho are lawfully in the country and who have applied for refugee status.People who apply for refugee status fall into two main groups: those whoapply for refugee status while in New Zealand on a temporary permit andwhile their temporary permit is still current, and those who apply for refugeestatus once their temporary permit has expired.It is the second group we are concerned about. This group of people,commonly referred to as overstayers, are unlawfully in the country when theyapply for refugee status. Why should New Zealand taxpayers support peoplewho are openly in New Zealand unlawfully? Of course they should not. Socialsecurity legislation is clear that the assistance is available only to people whoare lawfully in the country, and, on the whole, those who hold permanentresidential status.Changing current legislation to pay emergency benefits to lawfully residentrefugee applicants is consistent with this principle. This change is notinconsistent with New Zealand's international obligations under theconvention relating to the status of refugees. This convention relates torefugees who are lawfully in any country.[43] Plainly, individuals in the position of the appellants were in Parliament'scontemplation when it enacted amendments to s 74A to ensure those who were in NewZealand unlawfully were ineligible to receive any benefit, including an emergencybenefit.15 Ross Carter Burrows and Carter Statue Law in New Zealand (5th ed, LexisNexis, Wellington,2015) at 329.16 (31 March 1993) 534 NZPD 14552.[44] The further difficulty in the appellants' argument, as Ms Deligiannis submitted,is that s 164 of the Immigration Act does not render lawful the presence in NewZealand of a person claiming recognition as a refugee. Refugee claimants who do nothold a visa remain under an obligation to leave New Zealand.17 Consistent with thenon-refoulment obligation under art 33(1) of the Refugee Convention, s 164 merelyprevents their deportation.[45] The question whether a person (other than a New Zealand citizen)18 isunlawfully present in New Zealand is determined solely by the meaning of"unlawfully in New Zealand" in s 9 of the Immigration Act. A claimant for recognitionas a refugee is no exception. Similarly, the question whether a person claimingrecognition as a refugee is lawfully present in New Zealand is determined primarilyby the meaning of "unlawfully in New Zealand" in s 9 of the Immigration Act but mayalso be informed by the Refugee Convention, as I will explain.Inconsistency with the Refugee Convention?[46] The appellants submitted that the meaning of s 74A is not so clear that theCourt is able to "close its eyes to any of New Zealand's international obligations" orthe rights affirmed in NZBORA. In particular, Mr Fraser argued that the Ministry'sinterpretation of s 74A is inconsistent with the non-refoulment obligation in art 33(1)of the Refugee Convention:Article 33 – Prohibition of expulsion or return ("refoulement")1. No Contracting State shall expel or return ("refouler") a refugee in anymanner whatsoever to the frontiers of territories where his life orfreedom would be threatened on account of his race, religion,nationality, membership of a particular social group or politicalopinion.[47] Article 33 does not import an obligation to provide social security. Thatobligation arises from art 24(1)(b) of the Refugee Convention, which provides:17 Immigration Act 2009, s 18.18 New Zealand citizens are always lawfully present in New Zealand by virtue of s 13(1) of theImmigration Act 2009.Article 24 - Labour legislation and social security1. The Contracting States shall accord to refugees lawfully staying intheir territory the same treatment as is accorded to nationals in respectof the following matters:(a) Social security (legal provisions in respect of employmentinjury, occupational diseases, maternity, sickness, disability,old age, death, unemployment, family responsibilities and anyother contingency which, according to national laws orregulations, is covered by a social security scheme), subject tothe following limitations:[48] Importantly, the obligation in art 24(1)(b), to accord refugees the sametreatment as is accorded to nationals in respect of social security, is an obligation owedto refugees lawfully staying in the territory of the contracting state. In this regard,there is a broad correspondence between art 24(1)(b) and s 74A(1A)(a).[49] In relation to the meaning of "lawfully staying" in art 24(1)(b), the Authorityreferred to Dr James Hathaway's text, The Rights of Refugees Under InternationalLaw,19 in which Dr Hathaway discusses the way in which the Refugee Conventionrelates a refugee's enjoyment of various rights and protections to the level of therefugee's attachment to the asylum state. At the lowest of Dr Hathaway's five levelsof attachment, a refugee is simply subject to a state's jurisdiction. But with thedeepening of the relationship to the asylum state there is entitlement to "an expandingarray of rights".20[50] Addressing the third level of attachment, lawful presence, Dr Hathawayanalyses the role domestic law plays in determining the lawfulness of a refugee'spresence:21As a starting point, the logic of deference to national legal understandings oflawful presence is clearly sensible. Not only is it correct that there is nouniform and comprehensive international standard by reference to whichlawful presence can be determined but the drafters did generally intend for19 James C Hathaway The Rights of Refugees Under International Law (Cambridge, 2005).20 At 156.21 At 177 (footnotes omitted), citing Kaya v Haringey London Borough Council [2001] EWCA Civ677 at [31].the third level of attachment to be determined by reference to nationalstandards. Yet there is no indication that this deference was intended to beabsolute, a proposition which – if carried to its logical conclusion – couldresult in refugees never being in a position to secure more than rights definedby the first two levels of attachment agreed to by state parties. Indeed, asmuch was recognised by the English Court of Appeal [in Kaya v HaringeyLondon Borough Council] when it determined that "the contracting parties tothe Convention wished to reserve to themselves the right to determineconditions of entry, at least in cases not covered by the Refugee Convention[emphasis added]." That is, a state's general right to define lawful presenceis constrained by the impermissibility of deeming presence to be unlawful incircumstances when the Refugee Convention – and by logical extension, otherbinding norms of international law – deem presence to be lawful. While thisis in most cases a minimalist constraint on the scope of domestic discretion, itis nonetheless one that is important to ensuring the workability of a treatyintended to set a common international standard.[51] A refugee then will be regarded as lawfully staying in a contracting state if heror his presence is ongoing in practical terms and is officially sanctioned (the fourthlevel of attachment).22 This does not require a formal declaration, grant of residenceor establishment of domicile.23 It is apparent from the expanding nature of rightsenjoyed by refugees under the Refugee Convention that the levels of attachment aresequential. In other words, refugees must be lawfully present in the state before it canbe said they are lawfully staying in that state. Or, to put it another way, the lawfulnessaspect of a lawful stay is determined on the same principles as for lawful presence.[52] The Authority also referred to an article by Eve Lester, who argues that tointerpret "lawfully staying" as a matter of compliance with national laws is overlynarrow and runs counter to the protective spirit of the Refugee Convention.24 Inparticular, such an interpretation could see refugees capriciously rendered unlawfullyresident as a result of the enactment of domestic laws. While appreciating Ms Lester'spoint that domestic laws do not (as a matter of international law) capriciously rendera refugee's presence or stay unlawful, I have found Dr Hathaway's nuancedexplanation of the relationship between the Refugee Convention and domestic lawhelpful in understanding the practical role domestic laws play in determining thelawfulness of a refugee's presence or stay in a contracting state, as domestic laws musthave some bearing on that question. It is perhaps pertinent to observe the immediate22 At 187.23 At 189.24 Eve Lester "Work, the Right to Work, and Durabel Solutions: A Study on Sierra Leonean Refugeesin The Gambia" (2005) 17 Int J Refug Law 331 at 352–354.context of Ms Lester's argument was a critical discussion on the treatment of refugeesin The Gambia.[53] Finally, the Authority referred to a 1988 publication of the United Nations HighCommissioner for Refugees entitled Lawfully Staying – A Note on Interpretation. Thenote concludes that a judgment as to lawfulness should "take into account allprevailing circumstances, including the fact that the stay in question is known and notprohibited, i.e. tolerated, because of the precarious circumstances of the person".25The note also states, however, that lawfulness "normally is to be assessed againstprevailing national laws and regulations".26 On the whole, the note corresponds withDr Hathaway's analysis of the position.[54] Critically, for the appellants, Dr Hathaway explains the circumstances in whichlawful presence (and therefore a lawful stay) undoubtedly comes to an end underinternational law:27Lawful presence can come to an end in a number of ways. For refugeesresident in another state who were authorized to enter on a strictly temporarybasis, lawful presence normally concludes with the refugee's departure fromthe territory. The lawful presence of a sojourning refugee may also beterminated by the issuance of a deportation or other removal order issuedunder a procedure that meets the requirements of the Refugee Convention, inparticular Art 33.[55] By virtue of s 164, the Immigration Act enacts "a procedure that meets therequirements of Art 33" of the Refugee Convention.28 Therefore, as the Hon JennyShipley observed, s 74A(1A)(a) is not inconsistent with New Zealand's obligationsunder international law. Individuals such as the appellants, who lodge claims forrecognition as refugees after expiry of their visas (and after service on them ofdeportation liability notices or deportation orders), do so when they are unlawfullypresent in New Zealand. Accordingly, such individuals are not lawfully staying inNew Zealand and therefore not entitled to provision of social security underArt 24(1)(b) of the Refugee Convention.25 United Nations High Commissioner for Refugees "Lawfully Staying" – A Note on Interpretation(3 May 1988) at [23].26 At [23].27 Hathaway, above n 19, at 185.28 See excerpt at [54] above.Did the Court of Appeal doubt the correctness of Rajabian?[56] The appellants invited this Court to depart from Rajabian, observing that s 74Ahas been amended since Rajabian and Aziz were decided. I have dealt with thosearguments. This part of the judgment is confined to the appellants' contention that theCourt of Appeal held reservations about whether Rajabian was correctly decided.[57] There can be no doubt that the Court of Appeal agreed with Potter J's centralproposition that lawful presence for the purpose of the Social Security Act isdetermined by the definition in the Immigration Act. The Court of Appeal'sobservation at [24] that it was "leav[ing] open whether Rajabian was correctlydecided" is to be understood in its context. I therefore set out in full the passage ofthe judgment in which the Court of Appeal addressed a submission by counsel forMr Aziz that Rajabian was wrongly decided and factually distinguishable:[24] Our approach to the interpretation of s 74A of the Immigration Act isconsistent with the view taken by Potter J in Rajabian v The Chief Executiveof the Department of Work and Income New Zealand. Mr McKenziesubmitted that Rajabian was wrongly decided and anyway distinguishable asa factually different case, as indeed it was. Mr Rajabian had entered NewZealand using false papers and a false identity, and had subsequently appliedfor refugee status. The issue was whether Mr Rajabian was entitled to anemergency benefit while a claimant to refugee status. The case turned ons 129X of the Immigration Act 1987, which prohibited removal or deportationof a refugee or refugee status claimant. Mr Aziz's case is different. It does notinvolve a claim to refugee status and does not engage s 129X. It is thereforeunnecessary to say anything more about Rajabian, and we leave open whetherRajabian was correctly decided.[58] When read in context it is apparent that the final sentence of [24] is not anexpression of doubt about whether Rajabian was correctly decided but a statement bythe Court that it considered it was not necessary to say anything more about Rajabian,including whether it was correctly decided. Indeed, the real significance of [24] is inthe Court of Appeal's endorsement of Potter J's approach to s 74A, which the Courtdescribed as "consistent" with its view.New Zealand Bill of Rights Act 1990[59] The appellants say the denial of an emergency benefit breached their rights,protected by ss 8 and 9 NZBORA, not to be deprived of life and not to be subjected totorture or cruel treatment. As Ms Deligiannis submitted, the threshold for establishing"cruel, degrading or disproportionately severe treatment or punishment" isappropriately high.29 An enactment precluding those who are unlawfully present inNew Zealand from entitlement to benefits, including claimants for refugee status, doesnot approach that threshold.[60] There is no scope to interpret s 74A in the way Mr Fraser presses on appeal.The appellants have not shown s 74A is inconsistent with the rights and freedomsprotected by NZBORA and that therefore an alternative meaning should be given tos 74A.Does the Social Security Act confer a discretion to be satisfied a person is recognisedas a refugee?[61] The appellants presented in this appeal an alternative to the position relied uponbefore the Authority. The new argument is grounded in s 74A(1A)(b) of the SocialSecurity Act pursuant to which "a person who is recognised as a refugee" may begranted an emergency benefit. Mr Fraser submitted that 74A(1A)(b) gives a discretionto the Ministry "to be 'satisfied' the claimant is 'recognised as a refugee'".[62] The argument is unsustainable. In New Zealand, refugee status is recognisedin only one way: by the determination of refugee and protection officers acting inaccordance with Part 5 of the Immigration Act.30 Refugee status is accorded by theRefugee Convention, but the status is recognised in New Zealand under theImmigration Act.31 Crucially, s 125(3) of the Immigration Act provides that "[e]veryperson who seeks recognition as a refugee in New Zealand under the RefugeeConvention must have that claim determined in accordance with this Act".[63] It is therefore fanciful to suppose s 74A(1A)(b) gives to the Ministry, adiscretion to be satisfied that a person is recognised as a refugee in the absence of afinal determination under Part 5 of the Immigration Act. Clearly the Ministry requiresa proper basis for being satisfied, or not as the case may be, that a person is recognised29 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [278] and [288] per Tipping Jand [339] per McGrath J30 Immigration Act 2009, ss 125 and 127.31 Section 129; and see MA v Attorney-General [2009] NZCA 490 at [2].as a refugee,32 but s 74A(1A)(b) confers no discretion on the Ministry to effectivelyrecognise refugee status itself, which in practical terms is what the appellants'argument would entail.[64] Mr Fraser's submission that, when exercising its ostensible discretion, theMinistry can have regard to whether a claim for recognition as a refugee has beenaccepted under s 134 of the Immigration Act does not advance the appellants'argument. If the mere acceptance of a claim for recognition as a refugee provided asufficient basis for the Ministry to be satisfied that a person is recognised as a refugee,not only would s 74A(1A)(a) be rendered redundant but the legislative purpose oflimiting entitlement to benefits to refugee claimants who are lawfully present inNew Zealand would be subverted.Summary[65] The expressions "unlawfully resident or present in New Zealand" and"lawfully resident or present in New Zealand" are to be interpreted by reference to themeaning of "unlawfully in New Zealand" in s 9 of the Immigration Act. Thelawfulness of the presence in New Zealand of a claimant for refugee status who hasoverstayed her or his visa is to be determined in the same way.33 This is supported bythe approach adopted by Potter J in Rajabian and subsequently endorsed by the Courtof Appeal in Aziz.34[66] At the time they applied for emergency benefits, the appellants were notlawfully present in New Zealand. Consequently, they were not entitled to receive abenefit as they did not fall within the statutory prerequisite for entitlement establishedby s 74A(1A)(a).32 This proper basis is likely to be found in information the Ministry obtains from immigrationofficials pursuant to s 298 of the Immigration Act 2009, which expressly provides for the provisionof information relating to "a person who has made a claim for recognition, or has been recognised,as a refugee or a protected person" – s 298(4)(d).33 I do not determine whether a different interpretation of s 74A(1A)(a) of the Social Security Actmight be available for other claimants for refugee status who are unlawfully in New Zealandwithin the meaning of s 9 of the Immigration Act 2009 but who are lawfully staying in NewZealand pursuant to art 24(1)(b) of the Refugee Convention.34 See above, at [41].Result[67] The answer to the following question is "no":Did the Authority err in law in determining that, because the appellants werenot lawfully present in New Zealand and had not been recognised as refugees,they were therefore not entitled to an emergency benefit pursuant to s 74A(1A)of the Social Security Act 1964?[68] The appeal is accordingly dismissed.[69] Having succeeded, the respondent is entitled to scale costs for a category 2proceeding on a band B basis together with reasonable disbursements, to be fixed bythe Registrar in the event of dispute._____________________________Karen Clark JSolicitors:Crown Law, Wellington for Respondent