RSAA Annual Report to 30 June 2005

ANNUAL REPORT TO 30 JUNE 2005

This is the sixth 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

In this financial year the Refugee Status Appeals Authority (the Authority) issued 570 decisions. Of appeals in the “managed backlog”, being appeals lodged before 1 October 2002, there are now only 96 awaiting determination.

The Authority started the financial year with 625 undecided appeals carried over from the previous financial year and ended the year with 344 appeals awaiting determination.

360 new appeals were received, 578 appeals heard and 570 decisions published. Including withdrawn appeals, 641 appeals were finalised. Twenty-five percent of the decisions upheld the appeal and granted refugee status.

There were changes to the membership of the Authority during the year, including the appointment of two new members, and the loss of one full-time member, Lisa Tremewan, on her appointment as a Judge of the District Court.

Overall it was a productive year for the Authority with a range of complex appeals and the receipt of a number of cases seeking cancellation of grants of refugee status formerly conferred on individuals on the grounds that those grants may have been procured by fraud.

FUNCTIONS AND PROCEDURES

The Authority operates as an independent appellate body with wide-ranging powers of inquiry. It is serviced by employees of the Department of Labour who cannot consider applications for immigration permits or act as refugee status officers within the Department.1 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 Chairperson is “responsible for making such arrangements as are necessary or desirable to ensure the orderly and expeditious discharge of the functions of the Authority”.2

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 determine an appeal against a decision by a refugee status officer to cancel refugee status on the grounds the Refugee Convention has ceased to apply or that a person should cease to be recognised as a refugee, having obtained refugee status by forgery, false or misleading information, or the concealment of relevant information.

CASEFLOW MANAGEMENT

The most significant feature of the year was the decrease in the number of new appeals – 360 appeals were received, compared with 550 appeals in 03-04 and 670 appeals in 02-03 financial years. This decrease in appeals reflects the decrease in the number of applications for refugee status in New Zealand lodged with the Refugee Status Branch (RSB) (952 applications 2002/2003, 713 applications 2003/2004, 395 applications 2004/2005) which is in turn consistent with trends around the world. UNHCR reports that, since 2001, asylum applications lodged in 50 industrialised countries have dropped by 40%.3

Given the number of appeals carried over from the last financial year, the decrease in the number of new appeals did not impact on the Authority’s work in this financial year. Relevantly, however, 344 appeals will be carried over into the new financial year compared with 625 at the same time last year. Depending on the number of new appeals lodged, this may have an impact on the member capacity of the Authority towards the end of the next financial year.

Of the 641 appeals finalised, 71 of these were withdrawn. Of the 570 decisions published by the Authority in this financial year, 143 appellants were granted refugee status (25% of all appeals decided) and 427 appeals were declined (75%). 86 of the 570 decisions published related to minors, all of whom were accompanied by at least one parent.

Since the Authority was established in 1991, it has received a total of 8,307 appeals and published 6,500 decisions (the balance being appeals awaiting determination and those withdrawn (1,481) or otherwise disposed of (12)). Of the total decisions published by the Authority since 1991, 1,140 have been granted and the balance, 5,360 have been dismissed. The average percentage of appeals allowed since the Authority was established is 17.5%. At 25%, the grant rate in this financial year is higher than the average, and it is difficult to identify the reasons for this. Possible reasons for the increase in the approval rate include the decrease in the number of manifestly unfounded appeals and the increase in Iranian appeals, Iran being a country that has traditionally carried a high grant rate.

The Authority heard and determined appeals lodged by nationals of 53 countries (and two stateless persons). Nationals of Iran generated the highest percentage of appeals determined (13%), followed by nationals of India (11.75%), the Czech Republic (6.5%), Chile (6.1%), China (5.8%) and Sri Lanka (also on 5.8%). Details of appeals determined, including statistics by country and gender, are contained in Appendices A to C.

On 1 October 2002, the Authority sealed its backlog of cases to enable it to properly manage this part of its work flow without building up another backlog of cases lodged after 1 October 2002. Through internal adjustments, the sealed backlog figure rose to 512. Specific funding was allocated by the Department of Labour (DoL) to determine all backlog cases. From 1 October 2002 to 30 June 2005, a total of 416 appeals in the backlog have been determined. Of these, 307 have resulted in published decisions and 109 appeals have been withdrawn. Of those decisions published, 86 have been approved and 221 have been declined.

As at 30 June 2005, the number of backlog appeals is 96. Of this total, 51 are awaiting hearing or are part-heard, while 45 have been heard and are currently awaiting the publication of a decision.

For the second consecutive year, the number of manifestly unfounded and/or clearly abusive claims determined by the Authority continued to decline: 63 appeals were determined in this financial year, compared with 97 during the last financial year. These appeals are fast-tracked by the Authority to ensure they are heard (on the papers) and determined as expeditiously as practicable. For a breakdown of manifestly unfounded claims by country and outcome, see Appendix B.

During the course of this financial year 13 applications for judicial review of Authority decisions were lodged in the High Court. Eight applications were determined: three were dismissed, two struck out, one withdrawn, and two remitted back to the Authority by consent. Decisions in respect of the other five judicial review applications were pending at year’s end.

The Authority continues to give priority to appellants detained in prison or at the Mangere Detention Centre, including those subsequently released on bail conditions. Of the 360 new appeals lodged, 51 related to detainees (including those released on conditions). Of the 570 decisions published, 72 related to detainees (again including those released on conditions), of which 42 were granted refugee status.

At the appellate level, the average age of appeals on hand (excluding appeals in the sealed backlog) at 30 June 2005 time was 5.5 months. Of the decisions published in this financial year (again excluding backlog cases) the average age of the appeal at the date of decision was 7.9 months. These figures are the lowest they have been since my appointment as Chair in October 2001 and reflect well on the Authority’s case management systems and Member performance. The relatively low rate of cancellation applications in respect of the Authority’s decisions, and the consistently small number of judicial reviews (and an even smaller number of successful reviews), suggest to me that the Authority is reaching the correct decision on the evidence before it, while continuing to maintain the high standards of fairness required of it. Certainly at the appellate level refugee determination procedures in New Zealand are in good health and the New Zealand public can be confident that those who come to New Zealand to seek asylum in accordance with their right under international law receive, and will continue to receive, a fair, expeditious but searching determination of their refugee claims.

Appeals heard by the Authority continued to be complex, raising difficult evidential and legal issues. The ability of the Authority to seek information through the office of the Chief Executive of the Department of Labour is an essential tool in the discharge of the duty of the Authority to enquire into a claim to refugee status, and the procedure was discussed with senior officials of the Department of Labour with a view to expanding the scope of our enquiries. The challenge is to obtain relevant information in relation to specific refugee claimants without in any way breaching the confidentiality that attaches to the refugee determination process.

Cancellation proceedings are brought where the Refugee Status Branch (RSB) has evidence that a grant of refugee status (by the RSB or the Authority) “may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information...” (ss129L1(f)(2) and 129R, Immigration Act 1987). If the Authority is satisfied the grant may have been so procured, then it must go on and consider whether the individual is still a refugee on the true facts as found.

By year’s end, cancellation cases had become a significant part of the hearing schedule (22 cases pending) and it is likely that the Authority will continue to receive applications for cancellation of grants of refugee status made by the Authority in previous years, and appeals from decisions of the RSB cancelling its own grants.

It is apparent that the Department of Labour has increased its focus on identifying fraudulent asylum seekers and is moving to cancel refugee status where appropriate. Such an approach is both timely and commendable and will ultimately enhance the integrity of refugee determination in New Zealand. However, confidentiality as to the claimant and the claim is a cornerstone of the appeal process and, while the Authority must and is willing to comply with all lawful requests for information relating to appeals before it, it must ensure that the confidentiality obligation imposed on it under s129T of the Immigration Act 1987 is not breached in any way.

BUDGET

The expenditure for both the Authority’s secretariat and its members was well within appropriation. The budget included resources for dealing with the backlog which was sealed on 1 October 2002. As noted, by year’s end the backlog had been reduced by 416 appeals, leaving only 96 appeals to be heard and determined in the next financial year. The Authority therefore continues to deal with its backlog well in advance of the predicted determination rate and I am confident that the backlog will be completely heard and determined well within the next financial year and therefore within the three-year funding period.

AUTHORITY MEMBERSHIP

This financial year saw a number of changes within the Authority membership. Most significant was the appointment of senior member, Lisa Tremewan, to the bench of the District Court. Ms Tremewan was appointed in 1995 and made a senior member in 2001. She made a significant contribution to the Authority both in terms of the quantity and quality of her decisions, and in the mentoring and training of new members.

David Plunkett, the full-time Deputy Chair, resigned from that position at the end of the financial year to take up his appointment as Chair of the Residence Review Board (RRB) and the Removal Review Authority (RRA). Mr Plunkett has been an excellent full-time Deputy Chair and has made a considerable contribution to the management of the Authority since his appointment to the role of Deputy Chair on 1 November 2003. Rodger Haines, QC remains part-time Deputy Chair, a position he has held since 1994.

Four part-time members ceased to be available for work on the Authority. Two of these, Anna Fitzgibbon and Pru Tamatekapua, did not seek re-appointment of their warrants, and one, Bronwen Klippel, formally resigned her warrant during this financial year. The fourth, Anna Johns, was not able to make herself available for the Authority’s work but continued to hold a warrant.

Two new members were appointed to the Authority: Bridget Dingle (for a period of four years) and Richard Towle (for a period of one year).

Given the decrease in appeal numbers, and the recent appointment of two new members, the Authority continues to have sufficient capacity (from both its full-time and part-time membership) to hear and determine all appeals and applications within a reasonably expeditious timeframe. It is possible that at the end of the next financial year there may be some excess of capacity, particularly if appeal numbers continue to trend down. However, with the flexibility of part-time members at the Authority’s disposal, any anticipated excess capacity can be well managed and contained.

For a full list of members as at 30 June 2005, and their remuneration, see Appendices D and E.

AUTHORITY ACTIVITIES

This year saw a comprehensive upgrade of the Authority’s website, including a more effective search engine and a more user-friendly site in general. All published decisions are now uploaded onto the site within two weeks of publication, and a full searchable abstract of each decision is uploaded within four weeks of publication of the decision.

All decisions published by the Authority since 1 January 1999 are on its website. They are all published in a depersonalised manner to preserve the confidentiality of the claimant (a requirement of s129T and Schedule 3C of the Immigration Act 1987). On rare occasions, the Authority may be compelled not to produce any decision for publication (a total embargo on publication) as to do so, even in a depersonalised format, would risk identifying the claimant. The consequences of breaching the confidentiality obligation include risk to the refugee appellant’s family in the home country and the potential for identification to found a second claim to refugee status. It is also a criminal offence.

The Authority strives to maintain the appropriate balance between the public interest in its work and the confidentiality that attaches to all refugee claims. As noted, all decisions are published in a depersonalised form, except where it is not possible to do so and maintain both the essence of the decision and the confidentiality of the claimant. In such cases, either a short decision is published (usually only noting the country of origin and the grant or decline of refugee status) or no publicly available decision is released. In the course of this financial year, 18 decisions were released in short form (out of a total of 570 decisions). No decisions were totally embargoed.

Over this financial year, the secretariat has undertaken a review of the interpreting needs of the Authority. Rarely are appellants able to give evidence in English and therefore the Authority is dependent on the skills of its interpreters. Given the nature of the work, it is essential that the Authority has access to highly trained, competent, professional and independent interpreters. With the Authority receiving appeals from 54 different countries this year, identifying, training and retaining competent interpreters is an essential and ongoing task. Accordingly the secretariat was directed to review its database of interpreters, revise its selection and training requirements, and develop a Code of Ethics for interpreters working at the Authority. At year’s end, considerable progress has been made and the project is likely to be completed before the end of the calendar year.

In August 2004, I was asked by the President of the International Association of Refugee Law Judges (IARLJ) to present a series of workshops in Tokyo, Japan. UNHCR Tokyo had approached the IARLJ for training assistance and, at its expense, I travelled to Tokyo in August, as the IARLJ representative. I gave three different presentations to the Ministry of Justice officials charged with refugee status determination, refugee lawyers, and relevant NGOs. Subsequent feedback from UNHCR was positive and I am confident that the trip was a worthwhile one, both at the level of increasing the knowledge of those involved in refugee status determination in Japan, and in show-casing New Zealand’s model for determination of refugee status.

A number of members of the RSAA attended the IARLJ bi-annual conference in April 2005, held in Stockholm. The RSAA hosted the last bi-annual conference which was held in Wellington in October 2002. These conferences provide a unique opportunity for members to meet with other refugee decision-makers from around the world and to discuss issues relating to both process and jurisprudence. One of the issues that was particularly relevant for the IARLJ membership was the impact of the various changes in border security around the world that has followed the events of September 2001 and in particular how those impact on the refugee determination process.

At the Annual General Meeting of the IARLJ in Stockholm, a new president was appointed, Justice Tony North of the Australian Federal Court. Both Rodger Haines, QC and I were elected to the IARLJ Council. The IARLJ has a key role to play in maintaining and enhancing the independence and quality of decisions made in the refugee context. In this capacity, it has worked closely with the UNHCR which carries the largest refugee status determination (RSD) caseload in the world. There is considerable scope for developing this working relationship and the RSAA is well placed to provide RSD expertise to the UNHCR through the IARLJ if required. As border security enhancement procedures take effect around the world, there is a risk that genuine asylum-seekers will be unable to reach the borders of countries that operate refugee determination processes. Accordingly, the UNHCR is likely to experience an increase in the number of asylum-seekers approaching its offices around the world. Whether New Zealand should play any role in assisting the UNHCR in determining the refugee claims of those persons is a matter of government policy and outside the scope of this report.

During the course of this financial year, at the direction of the Minister of Immigration, the Department of Labour commenced a wide-ranging review of the Immigration Act, including the nature and scope of appeal rights and all aspects of Part 6A of the Act (which relates to refugee determination in New Zealand). I am grateful to have the opportunity to participate in this review and look forward to a continued involvement. The independence of the Authority remains a key issue and, as I have advocated in the past, the issue of independence and the perception of independence make it essential that the Authority be transferred from the Department of Labour to the Ministry of Justice (as recommended in the Law Commission’s report Delivering justice for all: a vision of New Zealand courts and tribunals (March 2004)). However, because of the role of the Department regarding the entry into New Zealand and status while here of all foreign nationals, it will be essential that the Authority retain a working relationship with that Department and, in particular, the ability to request information from its Chief Executive (pursuant to s129P(4) Immigration Act 1987).

As I observed last year, there is in my view some scope for changes to immigration and refugee processes that would result in a more efficient final determination of the status of all foreign nationals in New Zealand (not just those seeking refugee status) without compromising the standards and integrity of the refugee status determination process. However, I am confident that New Zealand’s refugee determination processes are of an appropriately high standard, fair and robust.

THE AUTHORITY'S SECRETARIAT

The Authority continues to be well served by its secretariat, both at the case management and decision levels. This year, the Authority has developed the role of its Legal Associates who have in the past focused on country information. More recently that focus has been changed to international human rights jurisprudence. This has required some upskilling on their part, and I anticipate that that will be ongoing. However, a good balance now exists between the support available to the Authority through the Refugee Status Library (the provision of accurate, up to date, reliable country information) and through the Legal Associates with the provision of legal research relevant to the refugee determination process.

Once again I extend my thanks to the Registrar, Brian Lewis, and his team for their able and consistent support to the Authority over the past year.

CONCLUSION

I wish to record my thanks to David Plunkett, the outgoing full-time Deputy Chair, for his hard work and support over this past year. I extend my thanks also to all members of the Authority, particularly the full-time members and the part-time Deputy Chair, Rodger Haines, QC. Refugee appeal decisions are difficult and complex. They demand a high standard of professionalism and fairness from those who sit in judgment, and who are often required to reach what Sir Stephen Sedley, a leading judge of the English Court of Appeal, has described as “a possible life-and-death decision extracted from shreds of evidence”. The current Authority membership is of a high standard and I am grateful to each and every member for their ongoing support for me as Chair and their obvious commitment to the work of the RSAA.

…………………………………………………
Ema Aitken
Chair
Refugee Status Appeals Authority

APPENDICES TO ANNUAL REPORT 2005

Appendix A All decisions by nationality and gender, including minors

Appendix B All decisions by type and nationality, including minors

Appendix C All decisions for minors by nationality

Appendix D Membership (as at 30 June 2005)

Appendix E Financial disclosure

APPENDIX A

ALL DECISIONS BY NATIONALITY AND GENDER, INCLUDING MINORS

Nationality	Female	Male	FY Total
Afghanistan		2	2
Albania	3	7	10
Algeria		7	7
Armenia		1	1
Bangladesh	3	27	30
Bolivia	1	1	2
Brazil	1	3	4
Bulgaria		3	3
Cambodia		3	3
Chile	18	17	35
China	11	22	33
Colombia	2	2	4
Congo	3	2	5
Czech Republic	17	20	37
Egypt		2	2
Ethiopia	1	3	4
Fiji	4	3	7
Ghana		1	1
Great Britain	1		1
Greece		1	1
Hungary	2	8	10
India	8	59	67
Iran	15	59	74
Iraq	6	25	31
Israel	1	2	3
Jordan	7	7	14
Kazakhstan	1		1
Kuwait		3	3
Kyrgyzstan	1	1	2
Laos		1	1
Lebanon		2	2
Lithuania		1	1
Malaysia	6	3	9
Mongolia	1	1	2
Morocco	1		1
Myanmar		1	1
Nepal		5	5
Nigeria	1	7	8
Pakistan		10	10
Palestine	1	3	4
Peru	1	4	5
Russia	3	6	9
Sierra Leone		1	1
Somalia	1	1	2
South Africa	5	3	8
Sri Lanka	9	24	33
Stateless		2	2
Sudan		2	2
Syria	1	6	7
Thailand	7	15	22
Turkey	2	4	6
Vietnam		13	13
Yugoslavia		2	2
Zimbabwe	12	5	17
Grand Total	157	413	570

APPENDIX B

ALL DECISIONS BY TYPE AND NATIONALITY, INCLUDING MINORS

Nationality	Grant	Dismissal	Refused to Consider	Manifestly Unfounded	Withdrawals	FY Totals
Afghanistan		2			2	4
Albania		6		4	1	11
Algeria	4	3				7
Armenia		1				1
Bangladesh		30			5	35
Bolivia		2				2
Brazil		4				4
Bulgaria	1	2			3	5
Cambodia	2	1				3
Chile	1	34				35
China	10	15	1	8	3	37
Colombia	3	1				4
Congo	4	1			3	8
Czech Republic	21	15		1	8	45
Egypt	1	1				2
Ethiopia		4				4
Fiji				7	5	12
France					1	1
Ghana		1				1
Georgia					1	1
Great Britain				1	1	2
Greece		1				1
Hungary		10			2	12
India	1	62		4	7	74
Iran	41	33			2	76
Iraq	14	17				31
Israel	1			2	1	4
Jordan	1	13				14
Kazakhstan	1					1
Kuwait	1	2			1	4
Kyrgyzstan	2					2
Laos				1		1
Lebanon	1	1				2
Lithuania		1				1
Macedonia					1	1
Malaysia		1		8		9
Mongolia	1	1				2
Morocco		1				1
Myanmar		1				1
Nepal	2			3	1	6
Nigeria		8			1	9
Pakistan	1	9			2	12
Palestine	2	2				4
Peru		5			1	6
Poland					2	2
Russia		9			1	10
Saudi Arabia					5	5
Sierra Leone		1			1	2
Somalia	2					2
South Africa		8				8
Sri Lanka	6	27			3	36
Stateless	2					2
Sudan	1			1		2
Syria	2	5				7
Thailand		3	1	19		23
Turkey	3	3			1	7
Vietnam	1	10		2		13
Yugoslavia	1	1				2
Zimbabwe	9	8			3	20
Grand Total	143	366	2	61	68	641

APPENDIX C

ALL DECISIONS FOR MINORS BY NATIONALITY

Nationality	Grant	Dismissal	Refused to Consider	Manifestly Unfounded	Withdrawals	FY Total
Albania		1		2		3
Bangladesh		3			1	4
Bolivia		1				1
Bulgaria					1	1
Chile	1	15				16
Congo	2					2
Czech Republic	6	7			4	17
Fiji		2		1	1	2
Greece		1				1
Hungary		1			1	2
India		1		1		2
Iran		6			1	7
Israel				1		1
Jordan		6				6
Kazakhstan	1					1
Peru		2				2
Poland					1	1
Russia		3				3
Saudi Arabia					3	3
South Africa		2				2
Sri Lanka		1				1
Thailand		1				1
Turkey	1					1
Zimbabwe		5			1	6
Grand Total	11	56		5	14	86

APPENDIX D

MEMBERSHIP (as at 30 June 2005)

Name	Expiry Date of Present Term
Aitken, Elizabeth Margaret	30.06.07
Andrew, Peter John	06.06.05*
Andrews, Pamela Jean	30.06.07
Baddeley, Josephine Gail (Dr)	05.09.08
Buddicom, Ruth Mary	28.02.07
Burson, Bruce Llewellyn	30.06.07
Dingle, Bridget Anne	31.01.09
Haines QC, Rodger	30.09.07
Hastie, Kim Bernadette Frances	30.06.07
Hodgen, Michael Jonathan Crozier	28.02.07
Joe, Sharyn	30.06.07
Johns, Anna Jane	30.06.07
Millar, Paul James	30.06.07
Molloy, Andrew Nesbit	28.02.07
Murphy, Sarah Louise	30.06.07
Pearson, Grant Douglas	30.06.07
Plunkett, David James	30.06.07
Robins, Margaret Lesley	05.09.07
Roche, Martha Anne	05.09.05**
Schaaf, Amelia	30.06.07
Shaw, Virginia Jane	30.06.07
Towle, Richard John	31.01.06
Treadwell, Charles Martin	30.06.07
Whata, Christian Nathanial	30.06.07

* Peter Andrew subsequently re-appointed to 30.06.06
** Martha Roche subsequently re-appointed to 30.06.06

APPENDIX E

FINANCIAL DISCLOSURE

Fees received by each Member of the Refugee Status Appeals Authority for the period 1 July 2004 to 30 June 2005.

Member	Fees Paid ($)	Other Benefits ($)
Aitken, EM	159,880
Andrew, PJ	33,437
Andrews, PJ	64,375
Baddeley, JG Dr	127,330	250 (telephone rental)
Buddicom, RM	30,312
Burson, BL	115,876
Dingle, BA	43,123
Fitzgibbon, AM	Nil
Haines, RPG QC	112,868
Hastie, KBF	27,187
Hodgen, MJC	59,912
Joe, S	707
Johns, A	Nil
Klippel, BL	Nil
Lawson, AB Judge	625
Millar, PJ	76,287
Molloy, AN	114,419
Murphy, SL	88,972
Pearson, GD	74,375
Plunkett, DJ	161,634
Robins, ML	58,237
Roche, MA	109,446
Schaaf, A	19,375
Shaw, VJ	101,975
Tamatekapua, PJ	Nil
Towle, RJ	43,065
Treadwell, CM	100,971
Tremewan, L	59,700
Whata, C	5,736