Incorporating Therapeutic Jurisprudence in New Zealand Refugee and Protection Status Determination: Possibilities and Constraints

Abstract

Therapeutic jurisprudence theory has potential to reinvigorate the law, legal processes, and practices for ‘refugee and protection status determination’ (RSD) through focusing on health and well-being alongside ensuring due process, thoroughness, and integrity of the RSD system. Employing this theory informed by the transformative paradigm, I conducted a content analysis of New Zealand refugee law and interviewed 32 refugee claimants and key professionals working in RSD sector related to their experiences and perspectives about lodging an asylum application and appeal. The analysis demonstrates that the refugee law in principle preserves fundamental procedural rights, thereby enabling a fair and transparent atmosphere for RSD, even though some aspects of the law bear significant potential to cause harm. I conclude that the law in theory establishes a favourable atmosphere for therapeutic jurisprudence aspirations in RSD. I infer further (drawing from participants’ voices) that existing therapeutic and claimant-suited initiatives in RSD (although minimal) suggest that some individual RSD decision-makers and lawyers have seized the conducive atmosphere in the law (but not fully) to align practice to therapeutic justice. However, participants’ accounts also indicate that the RSD system is compromised considerably by a number of factors including: • procedural fairness and access to justice problems throughout, • a ‘rubber-stamping’ warrant of commitment law for reviewing claimants’ detention, • a culture of disbelief, and working detached from the claimants; and • concerns about interviewing techniques by decision-makers and lawyers. These shortcomings expose refugee claimants and, to some extent, RSD professionals to psychological and physical harm, and in some cases, reported significant trauma. Through presenting Thompson’s (2016) work on anti-oppressive practice, I critique the RSD procedure as a nested system with structural through institutional to individual professional layers, and demonstrate how oppression can work within it. In response, I propose multi-level approaches informed by therapeutic jurisprudence that could provide more thorough and safer processes for RSD. This, I argue entails a holistic approach to improving RSD: involving law reform, full guarantee of procedural fairness and access to justice, creation of more claimant-suited processes by the RSD institutions; and adoption of more trauma-informed interviewing approaches and techniques by decision-makers and lawyers.