Refugee Status Appeals Authority PO Box 90251, Auckland Mail Centre, Auckland 1, New Zealand 3rd Floor, 13 Waverley Street, Auckland, New Zealand Telephone (09) 914 4299 Facsimile (09) 914 5263
ANNUAL REPORT TO 30 JUNE 2000 This is the first official report presented to the Minister of Immigration pursuant to Schedule 3C of the Immigration Act 1987, as introduced by Section 129N(8) of the Immigration Amendment Act 1999.
OVERVIEW The Authority has operated, since it was established by the Cabinet in 1991, pursuant to Terms of Reference set out by Cabinet for the purpose of determination of refugee status in New Zealand. Those Terms of Reference did not call for an annual report to be prepared.
It was pleasing for the membership to note that a legislative basis of refugee determination was established in 1999 (from 1 October 1999). This included the formal establishment of this Authority and the incorporation of the Convention relating to the Status of Refugees (1951) and the Protocol (1967) being incorporated as the Sixth Schedule to the Immigration Act 1999. Statutory recognition has given significant clarification to the operation and status of the Authority.
Appeal Numbers
Following the appointment of several additional refugee status officers to the Refugee Status Branch (RSB) in 1999/2000, there has been a lift in the determinations done at first instance. This resulted in the number of appeals received reaching approximately 70 per month in the final quarter. The total appeals for the year was 574 (578 in 1998/99). With some 2,300 aged applications to process by the RSB, in addition to current year applications, it is anticipated that the likely flow on appeals to the Authority could increase by some 40/50% over the next two years. Planning, both at the administration and membership level, is underway to meet that challenge.
The Authority scheduled 753 hearings, either by way of interview or on the papers. The Authority fully heard 494 appeals and issued decisions on 517. (In 1998/99, 459 appeals were heard and 405 decided). Withdrawn or out of time appeals were 70 (25). There are 317 appeals in process; of those, 221 are still to be heard. The balance are awaiting finalisation or decision publication. On average, decisions are published within 2/3 months from the date the hearing is concluded.
Since the Authority was established in 1991, it has finalised some 4,483 decisions. Of those, 739 have been granted refugee status, with the balance being declined or withdrawn appeals.
In the past fiscal year, 74 appeals have been allowed and 443 declined.
Membership
In early 2000, a further round of advertising to attract new members took place, on an open advertising, merit appointment basis. A reasonable number of applicants expressed interest. However, from these, we were only able to identify two part-time members who met the necessary standards for appointment. Those two appointments have just been finalised. It is of concern that we are thus in a position where we do not have sufficient membership to meet the forecasted number of appeals likely to come before the Authority over the coming two to three years. A working paper on this issue has been prepared by officials, after consultation with a wide range of interested parties. That paper will go to the Minister in late July 2000 for her recommendation as to further steps or study that needs to be done to attract and retain members of the right calibre and experience.
General Comments
The Authority continued to develop its jurisprudence during the year, taking into account domesticated international developments and decisions made on refugee issues. Following the decision of the Court of Appeal in the well-known Butler case, the Authority altered its approach towards the determination of relocation alternatives for applicants within their home countries (now termed the Internal Protection Alternative - IPA). The Authority's decision in Refugee Appeal No 71684/99 (29 October 1999) reiterates the central issues involved in refugee determination (as approved in the Butler decision by the Court of Appeal) but now adds that the relocation, or IPA, must be considered within the framework of whether meaningful national state protection can be genuinely accessed by appellants in another part of their home country, where basic norms of civil, political and socio-economic rights are available. The key element in this decision is that the reasonableness of the relocation must be tied back to the definition within the Convention.
The processing of appellants in custody, and a hunger strike by a number of them, placed significant strains on the resources of the Authority. The Authority pointed out to counsel and appellants, on several occasions, that it stood ready to hear the appeals of the hunger-strikers so that their determinations could be made promptly and fairly. Where appellants, however, rendered themselves unfit for the scheduled hearings, through their hunger-strikes, their appeals and determination of their status had to be delayed. This affected the flow of appeals and final statistics.
The issue of detention, of course, is not one in which this Authority can, in any way, be involved, apart from endeavouring to hear the appeals of appellants who are in custody, at the earliest practicable date, so that, if they are found to be refugees, they can be released as soon as possible.
The Authority updated its Practice Notes in 1999 and these are available from the secretariat for all interested parties.
FUNCTIONS AND PROCEDURES The Authority operates as an independent decision-making body of review. Pursuant to Section 3C of the Immigration Act 1987, recently introduced, the Authority is serviced by employees of the Department of Labour (DOL), who are not employed to consider applications for permits under the Immigration Act or designated as refugee status officers within the Department. The Department of Labour is directed to provide such resources as may be necessary to enable the Authority to carry out its functions under the Act. The Act provides for the Chairperson to be "responsible for making such arrangements as are necessary or desirable to ensure the orderly and expeditious discharge of the functions of the Authority". Pursuant to the provisions of the Section 3C, the Authority operates as a Commission of Inquiry under the Commissions of Inquiry Act 1908.
Section 1290 of the Act provides that a person who has been declined refugee status by a refugee status officer may appeal to the Authority against that officer's decision, within a 10 day time limit, in most situations. The Authority also has other powers to determine applications by refugee status officers as to whether: the Refugee Convention has ceased to apply (Article 1C of the Convention); a person should cease to be recognised as a refugee, following earlier recognition which may have been procured by fraud, forgery, false or misleading representation or the concealment of relevant information; or possible exclusion under Articles 1D, 1E or 1F of the Convention where refugee Authority for reasons of fraud, forgery, false or misleading representation or the concealment of relevant information.
All decisions of the Authority must be given in writing, including reasons and, where relevant, the decision of the majority of members will prevail or, if evenly divided, the matter will be determined in favour of the appellant. Predominantly, the Authority sits with one member, but additional members can be brought on to a panel at the discretion and direction of the Chairperson.
1999/2000 FISCAL YEAR ACTIVITIES Appeals Received and Processed
Full details of the Authority' s statistics are set out the Schedules to this report.
Membership
Two new part-time members were appointed to the Authority towards the end of the fiscal year. Details of current membership is set out in the Schedule below.
Members Days per month on Authority Work (approximate) Expiry Date of Warrant Elizabeth Aitken* 12 days 1 July 2003 Peter Andrew 4-5 days 1 July 2001 (new appointment) Jo Baddeley Full-time 5 September 2000 Richard Donald Full-time 5 September 2000 Anna Fitzgibbon 4-5 days 1 July 2001 (new appointment) Rodger Haines QC (Deputy Chairperson) 10-12 days 1 October 2003 Sharyn Joe* 16 days 1 July 2003 Prue Tamatekapua 2-3 days 5 September 2000 Judge Allan Lawson 8 days 1 July 2002 Allan Robert Mackey* (Chairperson) 15 days 1 January 2004 Paul Millar* 18 days 1 July 2003 Carol Parker* 18 days 1 July 2003 David Plunkett* 16 days 1 July 2003 John Priestley QC (Deputy Chairperson) 6 days 1 October 2003 Jonathan Moses 3-4 days 1 July 2002 Margaret Robins 3-4 days 5 September 2000 Martha Roche 6 days 5 September 2000 Shelley Sage* 4-5 days 1 July 2002 Virginia Shaw* 15-16 days 1 July 2003 Charles Martin Treadwell* 16 days 1 July 2003 Lisa Tremewan* 16 days 1 July 2003
* Also serve on other immigration/refugee Appeal Authorities.Judicial Reviews of Authority Decisions
Schedule 6 below sets out the number of Judicial Reviews lodged in the past fiscal year and their current status.
Status Since Establishment in 1991
Appeals/Registered Withdrawn/Out of Time Other Determinations Decisions Published 4,810 972 9 3,512
Appeals Allowed Appeals Declined Determinations Outstanding 739 2,773 317 Alan Mackey
Chairperson
Refugee Status Appeals Authority
Schedule 1 Appeals Received and Determined From 1 July 1999 to 30 June 2000
Month Opening Appeals Received Hearings Scheduled Appeals Actually Heard Appeals Decided Appeals Withdrawn /OOT Declined Approved CA/MU Closing July-99 333 53 63 41 30 1 25 5 3 355 Aug-99 355 29 57 40 31 5 27 4 6 348 Sep-99 348 30 41 29 45 1 39 6 4 332 Oct-99 332 27 71 43 42 5 27 15 1 290 Nov-99 290 31 82 45 37 9 32 5 3 275 Dec-99 275 54 64 35 66 5 57 9 3 258 Jan-00 258 41 33 22 27 2 26 1 5 270 Feb-00 270 54 80 53 20 4 19 1 3 300 Mar-00 300 59 96 67 44 12 35 9 4 303 Apr-00 303 52 43 25 53 3 46 7 1 299 May-00 299 72 53 33 44 4 38 6 5 323 Jun-00 323 72 70 61 78 19 72 6 3 317 Total for Year 574 753 494 517 70 443 74 41 OOT - Out of Time
CA/MU - clearly abusive or manifestly unfounded.
Schedule 2 Breakdown of Appeals by Country of Origin 1 July 1999 to 30 June 2000
Country Jul Aug Sept Oct Nov Dec Jan Feb Mar Apr May Jun Total Afghanistan 1 1 2 Algeria 1 1 1 1 4 Bangladesh 1 3 1 5 China 4 6 9 7 4 13 6 2 5 7 4 18 85 Colombia 1 1 Congo 1 1 Czech Republic 1 1 2 1 1 6 Egypt 1 1 2 Ethiopia 1 2 1 4 Fiji 1 1 2 3 1 5 13 Ghana 1 1 3 5 India 10 1 7 6 7 3 1 3 9 8 10 13 78 Indonesia 1 5 3 3 6 29 7 3 2 16 13 11 99 Iran 3 4 5 7 3 7 2 4 2 5 2 8 52 Iraq 1 2 3 Kazakhstan 1 2 3 Kuwait 1 1 Liberia 2 2 1 2 1 1 9 Libya 1 1 Malaysia 1 4 5 Morocco 1 1 1 1 4 Myanmar 2 2 Nigeria 1 1 2 4 Pakistan 2 2 4 Peru 2 2 4 Philippines 1 1 Poland 1 1 Russian Federation 1 1 1 1 1 2 2 2 2 13 Rwanda 1 1 2 Somalia 1 1 1 2 5 South Africa 2 1 3 South Korea 2 2 2 2 8 Sri Lanka 1 2 4 1 2 1 4 3 18 Sudan 1 1 Syria 1 1 2 Tajikhstan 1 1 Thailand 1 2 6 5 2 1 1 3 1 2 24 Togo 1 1 2 Tonga 2 2 Turkey 1 1 Ukraine 2 2 3 3 2 2 2 16 United States 1 1 Vietnam 1 1 1 1 1 2 2 2 4 15 Yemen 1 1 Appeals Decided 29 31 44 45 33 64 27 20 45 53 44 79 514
Schedule 3 Article 1F Exclusion Decisions 1 July 1999 to 30 June 2000
Country Total Male Female Allowed Dismissed Yemen 1 1 1 Afghanistan 1 1 1 Liberia 1 1 1 Total Exclusions 3 3 0 1 2
Schedule 4 Female Appellants 1 July 1999 to 30 June 2000
Country Total Allowed Dismissed Withdrawn Non-appearances MU-Appeals Bangladesh 1 1 China 32 2 30 6 2 Czech Republic 1 1 Ethiopia 1 1 Fiji 2 2 Ghana 1 1 India 2 2 Indonesia 40 40 4 Iran 2 2 2 Kazakhstan 1 1 1 Liberia 2 2 Malaysia 3 3 2 Peru 2 2 Philippines 1 1 Russian Federation 1 1 South Korea 2 2 Thailand 13 13 2 Tonga 1 1 Ukraine 3 3 United States 1 1 1 Vietnam 3 3 1 Total Female Appellants 115 4 111 12 7 2
Schedule 4 continued Male Appellants 1 July 1999 to 30 June 2000
Country Total Allowed Dismissed Wthdrwn Non-appearances MU Appls 2nd Appls 3rd Appls Afghanistan 2 2 Algeria 4 2 2 Bangladesh 4 4 1 China 53 3 50 4 14 2 Colombia 1 1 Congo 1 1 Czech Republic 5 5 1 Egypt 2 2 Ethiopia 3 1 2 Fiji 11 11 2 5 Ghana 4 4 1 India 76 7 69 1 1 2 Indonesia 59 59 8 8 1 Iran 50 26 24 2 Iraq 3 3 Kazakhstan 2 2 Kuwait 1 1 Liberia 7 7 1 Libya 1 1 Malaysia 2 2 Morocco 4 1 3 1 Myanmar 2 2 Nigeria 4 4 1 Pakistan 4 4 Peru 2 2 Philippines Poland 1 1 Russian Federation 12 12 2 4 Rwanda 2 2 Somalia 5 3 2 1 South Africa 3 3 1 South Korea 6 6 1 Sri Lanka 18 10 8 Sudan 1 1 Syria 2 1 1 Tajikhstan 1 1 Thailand 11 11 1 Togo 2 1 1 Tonga 1 1 Turkey 1 1 Ukraine 13 13 3 4 United States Vietnam 12 1 11 1 Yemen 1 1 Male appellants 399 69 330 28 28 13 2 3 Female appellants 115 4 111 12 7 2 0 0 Total appellants 514 73 441 40 35 15 2 2
Schedule 5 Minors/Child Appellants 1 July 1999 to 30 June 2000
Country Total Male Female Allowed Dismissed Iran 1 1 1 Total Minors/Child Appellants 1 1 1 Schedule 6 JUDICIAL REVIEWS
Judicial Reviews (Applications filed with High Court) 6 Allowed 0 Dismissed 2 Settled 1 Struck out 0 Outstanding 3* * The two outstanding decisions from 1999 were dismissed in August 1999.
There have been 48 judicial reviews filed since the RSAA was established, of which five have been remitted back to the Authority.