RSAA Annual Report to 30 June 2003

ANNUAL REPORT TO 30 JUNE 2003

This is the fourth annual 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 Refugee Status Appeals Authority (the Authority) started the financial year with 770 undecided appeals carried over from the previous financial year. On 1 October 2002 we sealed a backlog of 507 appeals as part of a strategy to manage both flow and backlog appeal cases.

During the course of the year we received 670 new appeals, heard 623 appeals, and published 570 decisions. 129 other appeals were withdrawn. At the end of the financial year, the sealed backlog had been reduced to 395. These appeals, together with 346 appeals received in the financial year but not determined, were carried into the next financial year (a total of 741 appeals carried forward). However, increased funding provided through the Department of Labour, together with other initiatives, enabled the Authority to recruit new members and support staff as part of a comprehensive strategy to deal with all backlog cases within the next three financial years (being up to and including 2005/2006).

Members of the Appeal Authority were involved in a number of initiatives over the past financial year, including hosting the fifth bi-annual conference of the International Association of Refugee Law Judges in Wellington.

FUNCTIONS AND PROCEDURES

The Authority operates as an independent appellate body with wide-ranging powers of inquiry. Pursuant to Schedule 3C of the Immigration Act 1987 (the Act), the Authority is serviced by employees of the Department of Labour (DOL) who are not permitted to consider applications for permits under the Immigration Act or to act 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”.

The Authority has jurisdiction to hear and determine any appeal by a person who has been declined refugee status by a refugee status officer. The Authority can also hear and determine appeals against decisions by refugee status officers that: the Refugee Convention has ceased to apply; a person should cease to be recognised as a refugee, following earlier recognition which may have been procured by fraud, forgery, false or misleading misrepresentation or the concealment of relevant information; or a refugee should be excluded under Articles 1D, 1E or 1F of the Convention where refugee status was granted in the past but matters may not have been properly considered by the Authority for reasons of fraud, forgery, false or misleading representation or the concealment of relevant information.

CASEFLOW MANAGEMENT

At 30 June 2003, the Authority had received a total of 670 appeals, approximately half the number received in the previous financial year (when 1277 appeals were received). 623 appeals were heard, and 570 decisions were published. 129 appeals were withdrawn without the need to offer the appellant a hearing.

Of the 570 appeals decided in this financial year, 64 appellants were granted refugee status (11.2% of all appeals decided) and 506 appeals were declined. Since the Authority was established in 1991 it has finalised 6,644 appeals of which 906 have been granted (excluding withdrawals, an average approval rate of 16.9%).

While the Authority continued to receive a number of manifestly unfounded or clearly abusive claims, this was significantly less than in the past financial year. Such appeals continue to be determined as expeditiously as practicable, thereby minimising incentives that might attach to lodging a meritless appeal (primarily the extension of a lawful stay in New Zealand).

Over and above the 670 appeals received in the financial year, the Authority carried over 770 undecided appeals from the previous financial year in which a total of 1,277 appeals were received. The strategy developed in the previous financial year to deal with this backlog of appeals was finalised, funded and implemented.

As part of that strategy, the Authority sealed a backlog of 507 appeals on 1 October 2002. New members were recruited (see further below) and it is anticipated that they will be trained and able to sit alone by the end of 2003. They, together with existing members, will then determine the backlog appeals but, with the increased member capacity, this should proceed with no adverse impact on the determination of new appeals received during the next financial year, assuming present trends continue.

By the end of the 2002/2003 financial year, the backlog had been reduced to 395. This reduction resulted from withdrawals and a number of appeals being heard and determined. Those determined were taken from the backlog primarily in response to requests by appellants or their counsel for an early hearing, largely on humanitarian grounds.

As in the previous year, there continued to be a significant number of appellants detained in New Zealand prisons or at the Mangere Detention Centre, or released on conditions that did not permit them to hold any work or other permits in New Zealand. A total of 69 such appeals were received during the year, with 39 being determined. The Authority gives priority to the hearing of these appeals for a number of reasons. However, they tend to pose complex factual scenarios and often complex legal issues, and are accordingly often heard and determined by two members, with many hearings taking place over more than one day. They therefore impact significantly on the hearing procedures.

Overall, the Authority heard and determined appeals lodged by nationals from 53 countries. As in the past year, Thai nationals generated the highest percentage of appeals (25.25%) followed by Indian nationals (13%), Iranian nationals (8.7%), Sri Lankan nationals (6.8%), nationals from the Czech Republic (6.3%), and Chinese nationals (5.9%). The remaining appellants were from a wide range of countries, including the Ukraine, Sierra Leone, Jordan, Colombia, Turkey and Chile. In its determination of appeals from such a broad range of country conditions, the Authority is ably assisted not only by its legal associates but by the skilled, experienced and professional staff of the Refugee Status (Nicholson) Library who have developed extensive expertise and retain a capacity to obtain accurate, reliable and specific information, often at very short notice.

Details of the appeals determined, including statistics by country and gender, are to be found in Appendices A-F.

During the course of the financial year, eight decisions of the Authority were subject to judicial review. Of those, two were discontinued, one was withdrawn and five were dismissed.

BUDGET

Budget expenditure for both the Authority's Secretariat and the Authority's Members was well controlled within appropriation.

AUTHORITY MEMBERSHIP

There were a number of significant initiatives affecting members and membership of the Authority in this financial year.

In December 2002 Cabinet, on the recommendation of the Minister of Immigration, agreed to increase the fees paid to both full-time and part-time members of the Authority. This outcome reflects a number of years of negotiations and discussions between the Authority, the Department of Labour, and the State Services Commission. The relatively low rate paid to members of the Authority had long been identified as a key factor in the Authority's inability to recruit and retain competent members, and the resolution of this issue was a welcome one.

With effect from 9 December 2002, the rate paid to the Chair of the Authority was increased by 8%, and the rates paid to the full-time Deputy Chair, senior and other members of the Authority increased by 6%. The rate paid to part-time members (previously $500 per day) increased by 25%. While this is a relatively significant increase, it takes the rate to $6251 per day, an amount significantly less than the member would be paid if acting as counsel on legal aid. This is despite the onerous decision-making responsibility carried by the member.

In general terms, however, members welcomed the resolution of the pay issue and its accompanying increase. Significantly, the Authority was able to enter into a recruitment round in the second half of the financial year with this issue resolved.

As part of the strategy of dealing with the backlog of cases carried over into this financial year, the Authority sought an increase in its membership to deal with these appeals and to keep up with the anticipated flow of new appeals. Cabinet approved the increase in capacity of the Authority by 4.5 full-time equivalents (FTEs), with additional support services and accommodation. This increased capacity is for a period of three years from 1 July 2003.

Accordingly, the Authority advertised for new members in the New Year and received a good response – something that can be attributed in part to both the increase in fees and to the increased attention to the refugee determination process in general. The appointment process resulted in the recommendation of eight new members of the Authority – three full-time members and five part-time members. All were subsequently appointed by the Governor-General on the recommendation of the Minister of Immigration on four-year warrants commencing on 1 July 2003.

For a full list of members (as at 30 June 2003), their warrants, commitment and remuneration, see Appendices G-H.

I am confident that, with these new members, the Authority will determine all appeals in the backlog within the three years for which the funding has been allocated, and continue to hear and determine expeditiously the flow of other appeals. This is of course subject to any unexpected and significant increase in the number of new appeals. However, even in such circumstances the Authority is better placed now than ever before to cope with any such increase given the number of both full-time and part-time members, and the increase in the secretarial support that has been provided. Retention particularly of experienced part-time members enables the Authority to maintain the capacity to deal with any unexpected increase in appeals at minimum cost.

As for accommodation, the need for an increase in office space was recognised and by year's end a number of steps had been taken to identify how this could be achieved.

AUTHORITY ACTIVITIES

As well as determining appeals expeditiously, members participated in a number of initiatives, most notably as hosts of the fifth bi-annual conference of the International Association of Refugee Law Judges. This was held in Wellington from 22-25 October 2002 and attended by approximately 100 refugee judges from around the world, including a number from New Zealand. There was an impressive line-up of speakers, including Erika Feller, Director of International Protection of the United Nations High Commission for Refugees (UNHCR), Dr Radhika Coomaraswamy, UN Special Rapporteur on Violence Against Women, Justice Sir Stephen Sedley of the UK Court of Appeal, and Professor James Hathaway. Topics covered included the global movement of people, the interception and detention of asylum seekers, judicial independence, and the recent UNHCR initiatives under the Second Track of the Global Consultation Process. As conference organiser I gratefully acknowledge the support of the Minister of Immigration, the efforts and support of members and the secretariat, and the financial support of the Department of Labour, the Department for the Courts, the New Zealand Law Foundation, and the UNHCR.

As part of the wider conference programme, the Authority also hosted a weekend workshop in Auckland on advanced refugee law. Professor James C. Hathaway, Professor of Law and Director of Programmes in Refugee and Asylum Law at the University of Michigan Law School, and one of the leading experts in refugee law, was persuaded to head the Faculty of the advanced workshop in which he presented papers, together with Dr Pene Mathew of the Australian National University in Canberra, and Rodger Haines QC, the Authority's Deputy Chair. 32 refugee decision-makers attended the workshop, including members of this Authority and seven refugee status officers from the Refugee Status Branch of the New Zealand Immigration Service. The workshop provided a unique opportunity for all parties to engage in an analysis of some of the more complex legal issues facing those involved in the refugee determination process today.

In March and April, Rodger Haines QC was visiting professor of law at the University of Michigan where he co-taught a course in comparative asylum law with Professor Hathaway.

Also in March 2003, 12 members of the Authority attended a two-day decision-writing course run by Judge Patrick Keane (as he was then) and New Zealand writer, Owen Marshall. The course was similar to that offered to judicial officers in New Zealand through the Institute of Judicial Studies, but tailored specifically to the decision-writing requirements by members of the Authority. It was another valuable opportunity for members and I am very grateful to Richard Moss of the Institute of Judicial Studies for his assistance, and to both Patrick Keane and Owen Marshall for their efforts and enthusiasm.

In December 2002, the Law Commission published a paper ‘Seeking Solutions: Options for Change to the New Zealand Court System' inviting submissions from interested parties. The principal themes for the Law Commission paper, in respect of tribunals, were issues of judicial independence and rationalisation. Given the relevance of both these themes to the Authority, it was considered appropriate to make submissions which were forwarded to the Commission in April 2003. In those submissions, the Authority identified three possible scenarios by which it and the Immigration Tribunals might be rationalised and which would better reflect the independence which is essential to the functioning and standing of the Authority.

The Authority continued to receive support from the UNHCR through its regional office in Canberra, primarily in response to requests from members for information in the course of determining specific appeals. In November and December, Rodger Haines QC (Deputy Chair) and I were invited by the UNHCR to participate in workshops in both Fiji and Papua New Guinea aimed at facilitating a discussion on the incorporation of the Refugee Convention into their domestic law, and the implementation of refugee status determination procedures. Since the workshops both countries have taken positive steps towards incorporation and the implementation of determination procedures. The Assistant Director of Fiji Immigration Department and a legal officer for the Ministry of Home Affairs and Immigration also visited the Authority to discuss further some practical aspects of the determination process.

DEPARTMENT OF LABOUR AND AUTHORITY SECRETARIAT

Over the past financial year I continued to enjoy the support of the Chief Executive Officer of the Department of Labour, John Chetwin, and others within his office with whom I have maintained good working relationships. As I have acknowledged in the past, the placement of the Authority within the Department of Labour is not ideal given that the decisions which are appealed to the Authority are those from the New Zealand Immigration Service of the Department of Labour. However, as in past years, the Authority has continued to maintain independence in its decision-making processes without interference from the Department or any other government agency. At the same time, it has developed a strong working relationship that has allowed for the relatively smooth resolution of issues impacting on the functioning of the Authority. I remain grateful for the support of the Chief Executive Officer and those within his department with whom I have worked over the past year.

Finally, I must again acknowledge the small hard-working team that comprises the Secretariat of the Authority, led ably for another year by Brian Lewis, the Registrar, supported by Gail Powell, Senior Registrar. The Secretariat has continued to work energetically in its support of the Authority membership. With the conference hosting, the backlog of appeals, and the impact of a complex caseload, the Secretariat has coped extremely well with another very busy year and has directly contributed to the excellent outputs and outcomes achieved by the Authority as a whole.

…………………………………………………
Ema Aitken
Chairperson

2002/2003 FISCAL YEAR ACTIVITIES

Appendix A Nationality statistics of decisions published

Appendix B Female appellants by country of decisions published

Appendix C Male appellants by country of decisions published

Appendix D Minors by country of decisions published

Appendix E Exclusion decisions of decisions published

Appendix F Statistics since establishment of Authority (1991)

Appendix G Membership (as at 30 June 2003)

Appendix H Financial disclosure

APPENDIX A

NATIONALITY STATISTICS – JULY 2002 – JUNE 2003

Country	Jul	Aug	Sep	Oct	Nov	Dec	Jan	Feb	Mar	Apr	May	Jun	Total
Afghanistan	1	1		1		1	1		2		1		8
Albania							1						1
Algeria				2	2			1	2		2		9
Azerbaijan											1		1
Bangladesh			4	2	1	3		3		1	5	3	22
Bolivia		1											1
Bulgaria										1			1
Burma											1		1
Chile		13					1						14
China	4	3	6	3	1	6	1		6	3	1		34
Colombia												2	2
Congo				2									2
Czech Republic	3			7	1	1	3	1	2		4	14	36
DRC (Congo)						3	1				1		5
Dominica									2				2
Egypt									1	1			2
Eritrea					1								1
Ethiopia					1	1				1			3
Fiji	1		1		1			2	4	4			13
Ghana	1												1
Hungary												3	3
India	5	10	6	8	14	8	1	3	9	1	5	4	74
Indonesia	2				2		1	1		1		2	9
Iran		6	2		10	12	2	3	4	2	6	3	50
Iraq			1	1		2		1					5
Israel							1						1
Jordan											1		1
Kuwait			1	1									2
Latvia											1		1
Lithuania								1					1
Macedonia				1									1
Malaysia				2	3	1	3	2	1	1	2	1	16
Morocco		1	1			1						1	4
Nepal			1								1		2
Nigeria			1	1			2	1	1		1	2	9
Pakistan			1			3	1	1	1	1	1	4	13
Papua New Guinea		1											1
Peru											1		1
Russia												1	1
Rwanda						1							1
Sierra Leone							1						1
Somalia									1	1			2
South Africa				2	1		2		2				7
Sri Lanka		3	4		3	8	1	5	5	2	3	5	39
Sudan											1		1
Syria						1			1				2
Thailand	10	5	11	9	14		19	22	14	16	6	18	144
Tunisia								1					1
Turkey								1					1
Uganda							1						1
Ukraine						1						1	2
Vietnam	1	2		1				1			1		6
Yugoslavia			1				1				1		3
Zimbabwe										1	3	1	5
Total appeals decided	28	46	41	43	55	53	44	50	58	37	50	65	570

APPENDIX B

FEMALE APPELLANTS BY COUNTRY – JULY 2002 – JUNE 2003

Country	No.	Allowed	Dismissed	MU Appeals	Non-appearances	2nd Appeals	3rd Appeals
Azerbaijan	1		1
Bangladesh	4		4
Chile	6		6	4
China	7	1	6	1
Colombia	2	2
Congo	1		1
Czech Republic	16	2	14	1
DRC (Congo)	1		1		1
Dominica	1	1
Fiji	5		5	4
Hungary	1		1
India	15	1	14	1
Indonesia	6		6	4
Iran	12	7	5
Iraq	1	1
Malaysia	4		4	4
Nepal	1		1
Nigeria	1		1			1
Pakistan	2	2
Peru	1		1
Russia	1		1
South Africa	7		7	1
Sri Lanka	14		14	1		2
Thailand	61		61	58	1	17	1
Vietnam	1		1
Yugoslavia	2		2	1
Zimbabwe	1		1
Total	175	17	158	80	2	20	1

APPENDIX C

MALE APPELLANTS BY COUNTRY – JULY 2002 – JUNE 2003

Country	Number	Allowed	Dismissed	MU Appeals	Non-appearances	2nd Appeals	3rd Appeals
Afghanistan	8		8		2
Albania	1		1
Algeria	9	3	6		1
Bangladesh	18	1	17		1
Bolivia	1		1
Bulgaria	1		1
Burma	1		1
Chile	8		8	4
China	27	3	24	2
Congo	1		1
Czech Republic	20	3	17	2
DRC (Congo)	4	1	3		2
Dominica	1	1
Egypt	2		2
Eritrea	1		1
Ethiopia	3	1	2
Fiji	8		8	7
Ghana	1		1
Hungary	2		2
India	59	1	58	1	8
Indonesia	3		3	2
Iran	38	16	22
Iraq	4	2	2
Israel	1		1
Jordan	1		1
Kuwait	2	1	1
Latvia	1		1
Lithuania	1		1	1
Macedonia	1		1	1
Malaysia	12		12	9	1	2
Morocco	4	1	3
Nepal	1		1
Nigeria	8		8
Pakistan	11	2	9		1
Papua New Guinea	1		1
Rwanda	1		1
Sierra Leone	1		1		1
Somalia	2	2
South Africa
Sri Lanka	25	3	22	1	2	1
Sudan	1		1
Syria	2	2
Thailand	83		83	77	5	20	2
Tunisia	1	1
Turkey	1	1
Uganda	1		1
Ukraine	2		2
Vietnam	5	1	4
Yugoslavia	1		1
Zimbabwe	4	1	3
Total	395	47	348	107	24	23	2

Grand Total (both genders)	570	64	506	187	26	43	3

APPENDIX D

MINORS BY COUNTRY

Country	Number	Allowed	Declined	Male	Female
Bangladesh	2		2	2
Chile	6		6	4	2
Colombia	1	1			1
Czech Republic	11		11	5	6
Fiji	5		5	4	1
India	3		3	1	2
Iran	5	2	3	2	3
South Africa	3		3		3
Sri Lanka	7		7	3	4
Thailand	5		5	2	3
Zimbabwe	2		2	2
TOTAL	50	3	47	25	25

APPENDIX E

EXCLUSION DECISIONS – ARTICLE 1F – JULY 2002 – JUNE 2003

Country	Number	Male	Female	Allowed	Dismissed
Kuwait	1	1			1
Sri Lanka	2	2		1	1
Algeria	1	1		1
TOTAL	4	4	0	2	2

APPENDIX F

STATISTICS SINCE ESTABLISHMENT OF AUTHORITY (1991)

Appeals/Registered

Withdrawn/Out

of time

Other determinations

Decisions

published

7,397

1,283

12 (historic)

5,361

Appeals allowed

Appeals declined

Determinations outstanding

(including 395 backlog)

906

4,455

741

APPENDIX G

MEMBERSHIP (as at 30 June 2003)

Name	Expiry date of present term
Aitken, Elizabeth Margaret	30.6.07
Andrew, Peter John	6.6.05
Baddeley, Josephine Gail (Dr)	5.9.04
Buddicom, Ruth Mary	28.2.07
Fitzgibbon, Anna Mary	6.6.05
Haines QC, Rodger	30.9.03
Hodgen, Michael Jonathan Crozier	28.2.07
Joe, Sharyn	30.6.07
Klippel, Bronwen Louise	28.2.07
Lawson, Allan Bernard (Judge)	30.6.04
McCoy, Gerard John Xavier	31.12.04
Millar, Paul	30.6.07
Molloy, Andrew Nesbit	28.2.07
Plunkett, David James	30.6.07
Robins, Margaret Lesley	5.9.03
Roche, Martha Anne	5.9.05
Shaw, Virginia Jane	30.6.07
Tamatekapua, Prudence Jane	5.9.05
Treadwell, Charles Martin	30.6.07
Tremewan, Lisa	30.6.07

APPENDIX H

FINANCIAL DISCLOSURE

Fees received by each Member of the Refugee Status Appeals Authority for the period 1 July 2002 to 30 June 2003.

Member	Fees Paid ($)	Other Benefits ($)
Aitken, EM	153,731
Andrew, PJ	50,395
Baddeley, JG Dr	112,883	560
Buddicom, RM	49,000
Fitzgibbon, AM	10,719
Haines, R QC	165,973
Hodgen, MJC	45,238
Joe, S	93,271	535
Klippel, BL	17,219
Lawson, AB Judge	46,500
McCoy, GJX	0
Millar, P	102,678	438
Molloy, A	108,320
Plunkett, DJ	105,347	492
Robins, ML	54,062
Roche, MA	71,112
Shaw, VJ	99,611
Tamatekapua, PJ	8,149
Treadwell, CM	101,825
Tremewan, L	93,941	540