McAdam, Jane --- "Status Anxiety: Complementary Protection and the Rights of Non-Convention Refugees" [2010] UNSWLRS 1

Last Updated: 21 February 2010

Status Anxiety: Complementary Protection and the Rights of Non-Convention Refugees

Jane McAdam, University of New South Wales

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Abstract

The domestic codification in New Zealand, and proposed codification in Australia, of international obligations to protect people substantially at risk of arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment is a positive development. It brings these countries into line with international law and State practice in the European Union, Canada and the United States. However, while these new developments extend protection to a wider class of people, New Zealand law is notably silent on the immigration status such people will receive once their protection needs have been recognized. This article draws on comparative practices to argue that a status for protected persons that is equivalent to that of Convention refugees sits more comfortably with international human rights law norms, is procedurally more efficient, and provides a principled and more humane policy response to people who have experienced serious harm and are looking to re-build their lives in a safe environment. It responds in part to Hathaway’s criticism that an equivalent status is unjustified as a matter of law.