Refugee and Protection cases from India and other democratic countries
August 2025
The Refugee Status Unit in New Zealand has been swamped by meritless cases from India. Almost always a localised issue is the basis of the claim. One of the most misunderstood aspects of asylum law is that international protection cannot be conceded where protection is available within the country internally (even if that means disruption and a loss of connection with the home locality). A localised feud with a neighbour or a gang of thieves or intercommunal violence between religious groups in one of India’s states or inter-caste problems (as was raised in a recent appeal), or other localised problems (such as a fear of a particular powerful MP or community leader) can be and must be resolved internally. International protection is not then appropriate.
Unless the claim includes a fear of serious harm from individuals with access to the state apparatus itself or with a country-wide infrastructure, such claims must normally fail.
Currently, work visa holders especially in some low skilled occupations in New Zealand, have no pathway towards residence. In the writer’s view, this is rather a pity. It is believed that unscrupulous expat immigration advisors are encouraging some desperate folks here on work visas to “try their hand” at asylum: “you never know”. However, as discussed below, legal processes are very predictable. It is not a lottery, and approval is not a matter of “luck”.
All cases involving refugee and protection claims are assiduously checked. The claimant is interviewed at a formal interview (hearing) and a formal decision is issued with an appeal right to the Tribunal (The Immigration and Protection Tribunal).
Where a case has no merit arising out of the localised-but-not-state-wide issue as discussed above, legal aid should not be granted. Why should the taxpayer fund cases which are manifestly unfounded one might ask? However, the cost to the state includes the cost of the infrastructure and their employees and members at both the RSU and the IPT, even where a case must fail. That is because New Zealand recognises its obligations to protect those in need, seriously. However, if the system becomes overwhelmed by meritless cases, then this has a negative impact on genuine cases in terms of delays. It also increases the cost to the government to set up an infrastructure for the speedy disposal of all such cases.
A failed asylum case of course provides a massive block on any future visas and possibly (based on anecdotal evidence only, and no one will ever admit to this) will also impact on the chances for visas for close family members (as the files will be cross-referenced within “big brother immigration”). The writer has seen file discussions about the asylum cases of siblings and other family members when negatively determining the bona fides of a temporary visa application. Meritless cases have a negative impact on future visa options.
Whereas the case itself will be kept confidential within the refugee determination process, and Tribunal, it is usually evident that an asylum claim has been filed. Further when asked a visa applicant must not provide false information.
If the plan is to lodge a hopeless case in order to get an asylum work visa during the process, then of course the system is being “used” and this is clearly abusive. Legal processes to stay on a work visa where there is no hope of success (where there is a relocation issue, the chance of success almost always is zero) is clearly making use of a “legal process” for one purpose in order to achieve a different purpose. Where there is the remotest chance of success and there is, objectively speaking, a chance of serious harm (and where there is no place of relative safety in the home country) then the claim should be fleshed out and tested.
In addition to the meritless cohort of claims involving nationals from India, there are other meritless claims from other usually democratic countries. There is a regular flow of enquiries from US citizens who know about refugee status from the movies and from the news. Most immigration law firms and barristers have received calls from people who have decided to leave the US because they are afraid of what might happen to them under the Trump regime. Often these fears are genuinely held but of course, on an objective basis any mistreatment suffered in a democratic country with a high-functioning judiciary and police force will find a solution. Asylum does not come to the rescue in such cases. Moreover, the news media has also highlighted overzealous deportations that are going on in the US. It is of course appreciated that sometimes US citizens or residents have been arrested and put into immigration detention. As reprehensible as this might be, the US has a fully functional legal system that will correct such errors and is of course doing so all the time. It is for the US system to compensate citizens or residents for such errors. On an objective basis, such refugee claims must fail.
During the 24-25 year, there were 888 claims from nationals from India. The Refugee Status Unit is preparing to set up an express team for processing (expedited processing). The response to this influx of mostly meritless cases however has taken time to gather steam and a backlog of cases has already developed. As at 1 August 2025, the cases on hand at RSU is now the highest it has been in many years at 3720, of which 44.1% involve Indian nationals. That does not include the load already at the Immigration and Protection Tribunal. If the purpose of a meritless filing is to spin out time in New Zealand on an open work visa, then obviously appeals will be lodged to gain a few further months. A review of the IPT decisions indicate that meritless Indian cases have reached the Tribunal. The decisions can be seen on the Tribunal’s website.
In summary it is noted:
The RSU/IPT are facing a cohort of meritless claims by nationals of India.
- Legal aid should not normally be available.
- Surrogate international protection through the recognition of refugee and protection status is not granted by the New Zealand refugee processing team and the Tribunal, where there is a relatively safe place within the country, even where this will involve significant problems in relocation and resettlement. Such folks will have the same problems and more in relocating to New Zealand. They should stay in their own country to resolve any localised community risk.
- It is widely believed that some are making claims in the knowledge that it will fail, just to get a work visa (or the benefit).
- The RSU are encouraged to expedite meritless cases in order to take away the value in obtaining a work visa while they wait. The same should apply to appeals.
- Careful consideration must be given by all lawyers and non-legal consultants as to whether it is ethical to support cases without merit. Intending meritless claimants should be encouraged to seek work visas, for example under our various seasonal work schemes (which have recently been expanded and improved).
- The ethical rule is that legal processes for one purpose should not be used for a different purpose. Where a person is not really seeking protection but is simply wanting an open work visa, the filing of a refugee claim is clearly abusive. To use the refugee and protection system to bide time so as to look around for a job or a partner is also unethical as that also involves the use of a legal process for a different purpose.
- There is a downside for applicants who file meritless refugee claims and accordingly, it is seldom in their long-term best interests to create this “downside”. The filing of a meritless refugee claim creates an adverse profile that suggests further and future non-compliant behaviour. Failed asylum seekers, are usually locked out from New Zealand (and possibly from other countries). Careful thought needs to be given therefore to the long term impact that a failed asylum case will have (both here and elsewhere). A failed asylum case in New Zealand will create future entry problems also into other countries as it shows an intention to not return to the home country and to hunker down.
- Careful thought should be given by all claimants who have read this paper and who have a clearly meritless case from India and elsewhere, that they would be better off to rescue their profile by withdrawing the claim and returning home. They will have a better chance of re-entry into New Zealand and also will be better off with efforts to enter other countries in the future.
- Serious consideration needs to also be given to penalising advisers (whether consultants or lawyers) who file or assist in the filing of meritless or abusive cases.
17 August 2025
D J Ryken
Ryken and Associates