Refugee Status Appeals Authority

  

ANNUAL REPORT TO 30 JUNE 2007


This is the eighth 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) resolved 226 appeals. At the commencement of the year, there were 165 undecided appeals.  That number had been reduced to 110 by the end of the year. One hundred and seventy-one new appeals were received, the lowest number of appeals received in any financial year since the inception of the Authority.

There were changes to the Authority membership, including the appointment of the Chairperson, Ema Aitken, to the District Court, after some 10 years excellent service with the Authority. The members and staff congratulate her and wish her well on her judicial career. Rodger Haines, QC was Acting Chairperson from 27 January 2007 to 20 August 2007. Allan Mackey was appointed as Chairperson after the year under review. Considerable effort was devoted by the Chairperson, and Deputy Chairperson in particular, to consultations on matters of process in the changes proposed under the Immigration Bill 2007. 

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 application made to it, or 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

Consistent with worldwide trends, the number of refugee applications lodged in New Zealand, and therefore the number of appeals lodged with the Authority, continued to track down in this financial year.  

The Refugee Status Branch received 244 applications compared with 317 applications in 2005/2006, 395 applications in 2004/2005 and 713 applications in 2003/2004. The Authority received 171 new appeals in this financial year, compared with 256 appeals in 2005/2006, 360 appeals in 2004/2005 and 550 appeals in 2003/2004.

Having carried over 165 appeals from the previous financial year, the Authority finally determined 226 appeals, with 110 carried over into the 2007/2008 financial year. Of the 226 appeals finalised, 35 were withdrawn, resulting in 191 published decisions. Fifty-six of those persons were granted refugee status (29%) and 135 declined (71%). In the 2005/2006 financial year the percentages were 22% and 78% respectively.

Forty-two of the 191 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 8,734 appeals and published 7,086 decisions (the balance being appeals awaiting determination and those withdrawn (1,526) or otherwise disposed of (12)). Of the total decisions published by the Authority since 1991, 1,281 have been granted and the balance, 5,805, have been dismissed. The average percentage of appeals allowed since the Authority was established is 18.08%. However, the past two financial years have seen a grant rate above that average due primarily to the steady decrease over these past years in the number of manifestly unfounded appeals (which are inevitably declined).

The Authority heard and determined appeals lodged by nationals of 40 countries. Nationals of Iran generated the highest percentage of appeals determined (21%), followed by nationals of Sri Lanka (10.2%), Czech Republic and Fiji (6.2%), Bangladesh and India (5.3%) and Slovakia (4.4%). Details of appeals determined, including statistics by country and gender, are contained in Appendices A to C.  

The average age of appeals in flow continued to trend down from previous years. At 30 June 2007, 85% of appeals on hand were aged 3.19 months. The remaining 15% of appeals pushed the overall average age to 6.4 months. The average age of appeals at the date of decision was 9.36 months, compared to 10.08 months in the previous financial year. 

Seven manifestly unfounded appeals were determined in this financial year, compared with 25 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 the financial year, eight applications for judicial review of Authority decisions were lodged in the High Court. At the end of the last financial year, one judicial review application was pending. In the course of the year, seven applications were determined by the High Court. Of these, two were dismissed, one was allowed, three were discontinued and one was remitted back to the Authority by consent. 

Cancellation proceedings continue to be brought before the Authority, and are likely to become a substantive part of the workload in the foreseeable future.  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.

Twenty-two cancellation cases were carried over from the previous financial year and, during the course of this financial year, the Authority received 21 further cases. Of these, 14 were appeals against decisions of the RSB cancelling its own earlier decisions and seven were applications to the Authority to cancel its earlier decisions to grant refugee status.

Twenty-two cancellation decisions were made, one case was withdrawn and there were 20 cases pending at the end of the financial year. Of the 23 cancellation cases determined, the Authority was satisfied that, in all but four cases, the grant of refugee status may have been procured by fraud and that the individual was no longer a refugee. Accordingly, refugee status was cancelled in respect of these individuals (being 82% of cases determined by formal decisions).

In general, and consistent with the previous financial year, many appeals heard by the Authority raised complex evidential and legal issues. The Authority was assisted in its determination in some cases by utilising its powers to enquire and to seek information through the office of the Chief Executive of the Department of Labour. It continues to have access to the excellent research and library facilities provided by the Refugee Research and Information Branch Library and by the Authority’s own Legal Associates. The ability to obtain relevant, reliable and country-specific information remains pivotal to the discharge of the Authority’s functions.

BUDGET

The expenditure for both the Authority’s secretariat and its members remained well within appropriation. 

AUTHORITY MEMBERSHIP

While there were 20 warranted members during this financial year, 11 were either inactive (for personal or professional reasons) or part-time members. With the decline in appeal numbers, few part-time members were still called upon to undertake the Authority’s work by year’s end.

Ema Aitken, Chairperson, resigned her warrant to take up her appointment to the District Court and Richard Towle left to take up the position of UNHCR Regional Representative in Canberra.

Two member warrants expired during the year and a further 10 on 30 June 2007. Of these, nine were not renewed. Some members of the Authority hold warrants on other immigration tribunals: the Deportation Review Tribunal, the Removal Review Authority (RRA) and the Residence Review Board (RRB). Given that some of those tribunals had substantial backlogs at the start of the financial year, member capacity was shifted from the RSAA to them. This assisted all tribunals in managing current work flows. Cross-appointments and part-time membership have proved effective mechanisms for managing what is, of its nature, an unpredictable flow of work to the RSAA and the other tribunals. 

For a full list of members as at 30 June 2007, and their remuneration, see Appendices D and E.


THE AUTHORITY'S SECRETARIAT

The Authority’s small, dedicated secretariat continued to serve it well during the financial year. While there have been some changes in staffing over the years, the secretariat has retained a core staff for several years who contribute significantly to the Authority’s smooth running and reflect well on both the individuals and the Authority’s Registrar. Members and staff continue to enjoy excellent working relationships.

The Authority welcomed the move taken during the financial year to relocate the Secretariat within the DOL reporting lines from Workforce (NZI) to the Legal and International Group headed by Graeme Buchanan, Deputy Secretary of Labour. This further reinforces the independence of the Authority and is a significant step in removing any perception that the Secretariat might have been placed in a conflict of interest situation between their responsibilities to the Authority and those owed to Workforce in relation to their reporting lines. The new independent reporting lines are working well.
 
I should like to take this opportunity of recording the Authority's appreciation to Graeme Buchanan and his Group Manager, Gail Powell, for the tremendous support provided to the Authority, and, in particular, to the Acting Chair, over the last year.  

CONCLUSION

Recognition must be made of the Deputy Chair of the Authority, Rodger Haines, QC for his consistent and valuable input into the work of the Authority and, in particular, his excellent work as Acting Chairperson over the period January to August 2007. Thanks are also due to the Authority members for their continued commitment to a sound, fair and efficient appeals process.




…………………………………………………
Allan Mackey
Chairperson
Refugee Status Appeals Authority



APPENDICES TO ANNUAL REPORT 2007

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 (during year to 30 June 2007)

Appendix E  Financial disclosure


APPENDIX A

ALL DECISIONS BY NATIONALITY AND GENDER, INCLUDING MINORS

1 July 2006 to 30 June 2007


Nationality
Female
Male
FY Total
Percentage
Afghanistan
-
1
1

Albania -
1
1

Algeria -
1
1

Bangladesh 2
10
12
5.3%
Bahrain
-
1
1

Brazil 2
3
5

Bulgaria
2
2
4

China
-
1
1

Congo
-
1
1

Czech Republic
5
9
14
6.2%
Egypt
-
1
1

Eritrea
-
1
1

Fiji
6
8
14
6.2%
Hungary
1
3 4

India
2
10
12
5.3%
Iran
8
39
47
21%
Iraq
2
6
8

Israel
2
3
5

Jordan
1
3
4

Korea
-
1
1

Kuwait 1
-
1

Kyrgyzstan
2
2
4

Malaysia 2
-
2

Mali -
1
1

Nepal
1
6
7

Nigeria
-
1
1

Pakistan
2
7
9

Palestine
-
2
2

Romania
-
1
1

Saudia Arabia
-
1
1

Serbia
1
-
1

Sierra Leone
1
1
2

Slovakia
6
4
10
4.4%
Somalia -
2
2

South Africa
-
1
1

Sri Lanka
8
15
23
10.2
Sudan
-
2
2

Syria
4
4
8

Vietnam
1
5
6

Zimbabwe
3
1
4

Grand Total
65
161
226


APPENDIX B

ALL DECISIONS BY TYPE AND NATIONALITY, INCLUDING MINORS

1 July 2006 to 30 June 2007


Nationality
Grant
Dismissal
Manifestly
Unfounded
Withdrawals FY Totals
Afghanistan
1



1
Albania



1
1
Algeria

1


1
Bangladesh
8
4

12
Bahrain
1



1
Brazil
1


4
5
Bulgaria
4



4
China 1



1
Congo
1


1
Czech Republic 2
3

9
14
Egypt

1


1
Eritrea 1



1
Fiji

6
3
5
14
Hungary


4
4
India
2
6

4
12
Iran 8
37

2
47
Iraq 8



8
Israel 2
3


5
Jordan
1
3


4
Korea 1



1
Kuwait
1


1
Kyrgyzstan
4



4
Malaysia

2


2
Mali


1
1
Nepal
3
3

1
7
Nigeria
1


1
Pakistan
4
4

1
9
Palestine

1

1
2
Romania

1


1
Saudi Arabia

1


1
Serbia

1


1
Sierra Leone

2


2
Slovakia
5
5


10
Somalia

2


2
South Africa



1
1
Sri Lanka
3
19

1
23
Sudan 2



2
Syria 1
7


8
Vietnam

6


6
Zimbabwe
1
3


4
Grand Total
56
128
7
35 226


APPENDIX C

ALL DECISIONS FOR MINORS BY NATIONALITY

1 July 2006 to 30 June 2007

Nationality
Grant
Dismissal
Manifestly
Unfounded
Withdrawals
FY Totals
Bangladesh
3


3
Bulgaria
2




Czech Republic


4
4
Fiji

2

2
4
Hungary



2
2
India



1
1
Iran

4


4
Iraq
2



2
Israel




1
Kyrgyzstan
2



2
Pakistan
2



2
Malaysia




1
Slovakia
3
2


5
Sri Lanka

4


4
Syria

4


4
Vietnam

1


1
Grand Total
11
22
0
9
42


APPENDIX D

MEMBERSHIP (during year to 30 June 2007)

Name
Expiry Date of Present Term
Aitken, Elizabeth Margaret (Chairperson)
30.06.07*
Baddeley, Josephine Gail (Dr)
05.09.08
Buddicom, Ruth
28.02.07**
Burson, Bruce Llewellyn
30.06.07***
Dingle, Bridget Anne
31.01.09
Haines QC, Rodger
30.09.07****
Hodgen, Michael
28.02.07**
Joe, Sharyn
30.06.07**
Millar, Paul James
30.06.07**
Molloy, Andrew Nesbit
30.06.10
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
30.06.10
Schaaf, Amelia
30.06.07**
Shaw, Virginia Jane
30.06.07**
Towle, Richard
31.06.07******
Treadwell, Charles Martin
30.06.07***
Whata, Christian Nathanial
30.06.07**


* Resigned 26 January 2007
** Not reappointed
*** Reappointed to 30.06.10
**** Reappointed to 30.09.10
***** Reappointed to 30.06.08
****** Resigned 16.03.07


APPENDIX E

FINANCIAL DISCLOSURE

Fees received by each Member of the Refugee Status Appeals Authority for the period 1 July 2006 to 30 June 2007.


Member
Fees Paid ($)
Other Benefits ($)
Aitken, Elizabeth Margaret
105,712

Baddeley, Josephine Gail
78,926

Buddicom, Ruth
0

Burson, Bruce Llewellyn
115,433

Dingle, Bridget Anne
110,189

Haines QC, Rodger
168,781

Hodgen, Michael
8,331

Joe, Sharyn
0

Millar, Paul James
22,911

Molloy, Andrew Nesbit
122,505

Murphy, Sarah Louise
113,213

Pearson, Grant Douglas
5,000

Plunkett, David James
0

Robins, Margaret Lesley
41,563

Roche, Martha Anne
114,781

Schaaf, Amelia
0

Shaw, Virginia Jane
29,484

Towle, Richard
68,816

Treadwell, Charles Martin
61,693

Whata, Christian Nathanial
0




1  Clause 5, Schedule 3C Immigration Act 1987
2  Clause 2, Schedule 3C Immigration Act 1987