Refugee Status Appeals Authority
ANNUAL REPORT TO 30 JUNE 2008
This is the ninth 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 200 appeals. The numbers appear to have levelled off, or grown slightly, whilst the complexity of the caseload has increased significantly. At the commencement of the year, there were 110 undecided appeals. That number had been reduced to 87 by the end of the year. The 154 new appeals and 22 appeals/applications for cancellation of status meant a total of 177 matters received, slightly higher than the 171 received in the previous year.
A considerable amount of effort was devoted by the Chair, Deputy and senior staff members during thus year to consultations and submissions relating to aspects of the Immigration Bill 2007, especially as it related to the operations of the proposed Immigration and Protection Tribunal (IPT) and expanded “protection” obligations. (These are under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, 1984 (CAT) and Articles 6 & 7 of the International Covenant on Civil and Political Rights, 1966 (ICCPR).)
The ever-dwindling number of counsel available to represent appellants has reached near crisis level. With only three or four counsel now seriously involved, it is virtually impossible to run an efficient and expeditious Authority. This must also impact, possibly more significantly, at the first instance level.
We are advised that the work is simply uneconomic, even for enthusiastic young practitioners.
This issue must be addressed for the future. We will continue to research this problem and work assiduously with the Legal Services Agency and Law Society to assist, as best we can.
It appears that the only pragmatic solution may be through the establishment of a type of “Public Defender” office for this work.
We strongly urge that work on this issue becomes a high priority for the new administration of the IPT.
Allan Mackey (a former Chair) was appointed as Chairperson from late August 2007. Rodger Haines QC had been acting Chairperson from January through to late August 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 increased in line with UNHCR predictions of approximately 10%. There was a slight increase in the number of appeals received by the Authority, suggesting that there has been a levelling off in this financial year.
The Refugee Status Branch received 267 applications compared with 244 applications in 2006/2007, 317 applications in 2005/2006, 395 applications in 2004/2005 and 713 applications in 2003/2004. The Authority received 177 new appeals and applications (matters) in this financial year, compared with 171 matters in 2006/2007, 256 in 2005/2006, 360 in 2004/2005 and 550 in 2003/2004.
Having carried over 110 matters from the previous financial year, the Authority finally determined 200 matters, with 87 carried over into the 2008/2009 financial year. Of the 200 matters finalised, 24 were withdrawn, resulting in 176 published decisions. Forty-six of those persons were granted refugee status (26%) and 130 declined (74%). Twenty-two cancellation decisions were published, resulting in 13 cancellations.
Twenty-six of the 176 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 8,911 matters (including cancellation appeals and applications) and published 7,262 decisions (the balance being matters awaiting determination and those withdrawn (1,550) or otherwise disposed of (12)). Of the total decisions published by the Authority since 1991, 1,327 have been granted status and the balance, 5,935, have been dismissed. The average percentage of appeals allowed since the Authority was established is 18.3%. However, the past three 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.
The Authority heard and determined appeals lodged by nationals of 39 countries and one stateless person. Nationals of Iran generated the highest percentage of appeals determined (19.5%), followed by nationals of Sri Lanka (12%), China (9.5%), Bangladesh (6.5%) and Fiji and Hungary (5%). 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 2008, 98% of appeals on hand were aged 3.9 months. The remaining 2% of appeals pushed the overall average age to 4.7 months. The average age of appeals at the date of decision was 8 months, compared to 9.36 months in the previous financial year.
Eleven manifestly unfounded appeals were determined in this financial year, compared with seven 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. In the course of the year, four were dismissed, four were discontinued, one was allowed and one was remitted back to the Authority by consent. The Supreme Court upheld the interpretations of the Authority on the issue of confidentiality in s129T in Attorney-General v X and RSAA [2008] NZSC 48.
Cancellation proceedings continue to be brought before the Authority. 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...” (ss129L(1)(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 cancellation cases were carried over from the previous financial year and, during the course of this financial year, the Authority received 23 further cases. Of these, 14 were appeals against decisions of the RSB cancelling its own earlier decisions and 9 were applications to the Authority to cancel its earlier decisions to grant refugee status.
Twenty-two cancellation decisions were made, three cases were withdrawn and there were 18 cases pending at the end of the financial year. Of the 25 cancellation cases determined, the Authority was satisfied that in 13 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 59% of cases determined by formal decisions).
BUDGET
The expenditure for both the Authority’s secretariat and its members remained well within appropriation.
AUTHORITY MEMBERSHIPThere were 10 warranted members as at 30 June 2008. One member’s warrant expired on 30 June and was 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). This assisted all tribunals in managing their 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 2008, and their remuneration, see Appendices D and E.
THE AUTHORITY'S ACTIVITIES
The Legal Associates to the Authority, under the very capable guidance of Jeanne Donald, completed an excellent Procedures Guide during the year. This comprehensive document allows all members to be fully conversant, at any time, with all procedural issues relating to the Authority and the relevant jurisprudence.
Work on a completely revised Practice Note is now well advanced and should be published in the first quarter of the 2008/09 financial year. In addition to regular training programmes for members, a specialist training session was carried out with academics from the University of Melbourne, in association with Rodger Haines QC (Deputy Chairperson), in July 2007. This allowed members to revisit, with the latest jurisprudence, the whole human rights framework within which refugee law is set.
In June, we were again able to host a graduate law student from the University of Michigan. This year’s Fellow, Jim Driscoll-MacEachron, usefully completed a project which looks forward to the provisions of the new Immigration Act and covered: “What is the meaning of torture” as used in clause 120, and “arbitrary deprivation of life” and “cruel treatment” in clauses 121(1) and 121(2)(a) of the Immigration Bill.
As part of wider international training and development in this field, in conjunction with the UNHCR, Rodger Haines QC conducted training courses for judges and officials in South Korea and Russia. A further programme is planned in South Korea in late 2008.
THE AUTHORITY'S SECRETARIAT
Excellent service was received from the Secretariat again this year. A core of experienced, well-trained staff have contributed significantly to the smooth running and performance of the Authority for many years. It is essential that, in the transfer of responsibility for the Department of Labour to the Minister of Justice, minimum disruption is made in the Secretariat to ensure a smooth transition and that the same standards of quality are achieved in the proposed IPT. The excellent working relationship between senior management in the Department of Labour continued.
Special thanks should be given to Graeme Buchanan, Deputy Secretary of Labour, his Group Manager, Gail Powell, and the Registrar, Brian Lewis, for their tremendous support provided to the Authority in the past year.
CONCLUSION
Again, recognition must be made of the Deputy Chairperson of the Authority, Rodger Haines QC, for his extremely valuable input. He was required to become heavily involved in the RSAA activities over the past 18 months, at times almost on a full-time basis, particularly when he was Acting Chairperson and the transition period that followed from that.
Finally, thanks are due to all the Authority members for their strong and productive commitment to the Authority in times of growing complexity in the work and uncertainty as to their future from the proposed disestablishment of the Authority under the Immigration Bill.
…………………………………………………
Allan Mackey
Chairperson
Refugee Status Appeals Authority
APPENDICES TO ANNUAL REPORT 2008
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 2008)
Appendix E Financial disclosure
APPENDIX A
ALL DECISIONS BY NATIONALITY AND GENDER, INCLUDING MINORS
1 July 2007 to 30 June 2008
Nationality
Female
Male
FY Total
Percentage
Afghanistan
1
1
2
Algeria
2
2
Bangladesh 4
9
13
6.5%
Bolivia
1
1
Cambodia
1
1
Chad
6
6
China
6
13
19
9.5%
Congo
1
1
Czech Republic
2
3
5
Ethiopia
1
1
2
Fiji
5
5
10
5%
Great Britain
1
1
Hungary
5
5 10
5%
India
2
4
6
Iran
10
29
39
19.5%
Iraq
5
5
Israel
1
1
Latvia
1
1
Malaysia
1
2
3
Mali 1
1
2
Myanmar
1
1
Nepal 1
3
4
Nigeria 1
2
3
Pakistan
3
3
Peru
1
1
Philippines
1
1
Poland
1
1
2
Romania
1
1
Russia
1
2
3
Slovakia
1
1
Somalia
2
6
8
Sourth Africa
3
3
Sri Lanka
9
15
24
12%
Stateless
2
2
Sudan
2
2
Syria
4
4
Turkey
1
1
Uganda
1
1
Zimbabwe
3
2
5
Grand Total
60
140
200
APPENDIX B
ALL DECISIONS BY TYPE AND NATIONALITY, INCLUDING MINORS
1 July 2007 to 30 June 2008
Nationality
Grant
Dismissal
Manifestly
UnfoundedWithdrawals FY Totals Afghanistan
2
2
Algeria
1
1
2
Bangladesh 2
11
13
Bolivia
1
1
Cambodia
1
1
Chad
6
6
China 8
8
3
19
Congo
1
1
Czech Republic
5
5
Ethiopia
2
2
Fiji
4
5
1
10
Great Britain
1
1
Hungary
4
6
10
India
1
5
6
Iran 14
21
1
3
39
Iraq 4
1
5
Israel
1
1
Latvia
1
1
Malaysia
2
1
3
Mali 2
2
Myanmar
1
1
Nepal
3
1
4
Nigeria 1
2
3
Pakistan
1
2
3
Peru
1
1
Philippines
1
1
Poland
2
2
Romania
1
1
Russia
3
3
Slovakia
1
1
Somalia
1
7
8
South Africa
3
3
Sri Lanka
4
18
2
24
Stateless
1
1
2
Sudan
2
2
Syria 3
1
4
Turkey
1
1
Uganda
1
1
Zimbabwe
1
4
5
Grand Total
46
119
11
24 200
APPENDIX C
ALL DECISIONS FOR MINORS BY NATIONALITY
1 July 2007 to 30 June 2008
Nationality
Grant
Dismissal
Manifestly
Unfounded
Withdrawals
FY Totals
Bangladesh
2
2
Chad
1
1
China 1
2
3
Czech Republic
1
1
Fiji
2
2
Hungary
2
4
6
India
1
1
Iran
1
4
5
Mali
1
1
Myanmar
1
1
Nepal
1
1
Sri Lanka
6
1
7
Zimbabwe
1
1
Grand Total
3
23
0
6
32
APPENDIX D
MEMBERSHIP (during year to 30 June 2008)
Name
Expiry Date of Present Term*
Baddeley, Josephine Gail (Dr)
05.09.08**
Burson, Bruce Llewellyn
30.06.10
Dingle, Bridget Anne
31.01.09
Haines QC, Rodger
30.09.10
Mackey, Allan Robert (Chairman)
30.06.10
Molloy, Andrew Nesbit
30.06.10
Murphy, Sarah Louise
30.06.08***
Robins, Margaret Lesley
30.09.10
Roche, Martha Anne
30.06.10
Treadwell, Charles Martin
30.06.10
* All memberships expire if the Authority is disestablished prior to the expiry date of the warrants pursuant to the Immigration Bill 2007. All members would have to apply for membership of the proposed Immigration and Protection Tribunal (IPT) if they wish continuance in this area of work. There are no assurances of appointment.
** Reappointed to 05.09.09
*** Not reappointed
APPENDIX E
FINANCIAL DISCLOSURE
Fees received by each Member of the Refugee Status Appeals Authority for the period 1 July 2007 to 30 June 2008.
Member
Fees Paid ($)
Other Benefits ($)
Baddeley, Josephine Gail
48,387
nil
Burson, Bruce Llewellyn
133,764
nil Dingle, Bridget Anne
84,434
nil Haines QC, Rodger
230,293*
nil Mackey, Allan Robert
170,540
nil Molloy, Andrew Nesbit
130,562
nil Murphy, Sarah Louise
122,176
nil Robins, Margaret Lesley
45,175
nil Roche, Martha Anne
132,425**
nil Shaw, Virginia Jane
2,080***
nil Treadwell, Charles Martin
67,764
nil
* During this year Mr Haines QC undertook the role of Acting Chair and other work, in addition to his role as a Member and Deputy Chair of the RSAA.
** Ms Roche is cross appointed to the Deportation Review Tribunal (DRT), administered by the Ministry of Justice. In 07/08 Ms Roche worked 72 days on DRT work. All fees were paid by the Department of Labour and the Ministry of Justice paid the Department for any DRT time.
***Although Ms Shaw’s warrant expired on 30 June 2007, this relates to a hearing completed prior to the expiry of her warrant, but with the determination completed in this financial year.