ANNUAL REPORT TO 30 JUNE 2009
This
is the 10th annual report
presented to the Minister of Immigration
pursuant to Schedule 3C of the Immigration Act 1987, as introduced by
s129N(8)
of the Immigration Amendment Act 1999.
OVERVIEW
There
was a substantive fall in the number of appeals received and resolved,
whilst
at the same time, the complexity of issues involved in appeals
continued to
increase significantly. In this
financial year, the Refugee Status Appeals Authority (“the Authority”)
resolved
142 appeals, in comparison to 200 in the previous year.
At the commencement of the year, there were
87 undecided matters. That number has
reduced to 66 as at the end of this year. The
number of new appeals/applications for cancellation
received during
the year total 121, significantly lower than the 177 received in the
previous
year. With membership reduced by 1.5
(full-time equivalent) overall, the results reflect a productive year.
Beyond the core activities, again considerable
effort was devoted by the Chair and Deputy to consideration,
consultations and
submissions relating to aspects of the development of the new
Immigration
Act. These related especially to the
proposed operations of the Immigration and Protection Tribunal (IPT)
and the
expanded “protection obligations” proposed under the new Act. The new Act is now before the Committee of
the Whole of the House. If it is passed
over the coming months, there will be a significant amount of
transitional work
and training over the following year or more until the new Tribunal
commences
its operations. The most vital factor in
the transition must be the retention of the (highly recognised)
knowledge base
and skills developed by the Authority members and the excellent
Department of
Labour staff over the past 18 years. This
applies not just to this Authority but also the
immigration-related
authorities. Detailed and consultative
planning to achieve this will be required.
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 immigration matters 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
There
was a fall in refugee applications lodged in New Zealand over the past
year of
some 31%. This is somewhat against the international trend which has
been
slightly upwards over recent years.
The
Refugee Status Branch received 246 applications, compared with 267 in
the 2007/2008
(244 applications were received in 2006/2007 and 317 applications in
2005/2006).
It
is pleasing to record that the number of outstanding matters dropped
from 87 to
66 and that the average age for appeals on hand, including
cancellations has
fallen from 4.7 months to 4.49 months (omitting one long outstanding
case)
where the delays are somewhat beyond the control of the Authority. Of the 142 matters finalised, 14 were
withdrawn resulting in 128 published decisions.
Fifty-one
appellants were declared to hold refugee status, including 12 people
against
whom cancellation proceedings were brought but whose refugee status was
confirmed. Of the 77 appeals declined,
eight related to cancellation cases where refugee status was revoked.
In total,
20 cancellation cases were dealt with by the Authority during the year,
and a
further eight undetermined cases were carried forward into the 2009-10
financial year.
Twelve
of the 128 decisions 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 9,032 appeals and other refugee determination
matters and published 7,390 decisions.
A
further 1,564 appeals have been withdrawn and another 12 appeals have
historically been resolved in various ways. The
remaining balance of 66 appeals and
cancellations are those carried forward into the 2009-10 financial year.
Of
the total decisions published by the Authority since 1991, 1,378 have
been declared
to hold refugee status and the balance of 6,012 have been dismissed.
The
average percentage of appeals allowed since the Authority was
established is 18.6%. It should be noted
that in the past three to four
financial years, the approximate figure has increased primarily due to
a higher
percentage of claims originating from war-torn countries and/or those
with
regimes whose respect for human rights is more than questionable,
together with
a steady decrease over the past years in the number of manifestly
unfounded cases.
The
Authority heard and determined appeals lodged by nationals of 37
countries and
one stateless person. Nationals of Iran generated the highest percentage
of appeals
determined (21.8%), followed by nationals of Sri Lanka (8.5%), China
(7.7%), Czech Republic
(6.3%)
and Turkey
(4.9%). 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 2009, 98%
of appeals on hand were aged 3.8
months. The remaining 2% of appeals
pushed the overall average age to 4.49 months. The
average age of appeals at the date of decision was 7.6 months,
compared to 8 months in the
previous financial year.
Six
manifestly unfounded appeals were determined in this financial year,
compared
with 11 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. The
Authority refused to consider one appeal.
During
the course of the financial year, one application for judicial review
was
lodged in the High Court.
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.
During the past year, the Authority reviewed the whole cancellation
jurisdiction in some depth and is now satisfied it has the required
level of
clarity (see Refugee
Appeal No 75574 (29
April 2009).
BUDGET
The
expenditure for both the Authority’s secretariat and its members
remained well within
appropriation. Indeed, downward
adjustments were made during the year both with staffing and membership
to
reflect lower appeal numbers.
AUTHORITY
MEMBERSHIP
There
were nine warranted members as at 30 June 2009, during this year. The effective full-time equivalent membership
was reduced by approximately 1.5 over the previous year.
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 2009, and their remuneration, see
Appendices
D and E.
THE AUTHORITY'S
ACTIVITIES
During this year, the complexity
of many cases continued
to increase by comparison to past years. Several
cases have required many directions hearings to
clarify
preliminary issues. The case of X is now
proceeding after the issue of confidentiality in respect of s129T was
resolved
by the Supreme Court in Attorney General
v X and RSAA [2008] NZSC 48. This case
has required the Deputy Chairperson to be involved in a considerable
number of
directions hearings and decisions on preliminary matters.
It is hoped that the substantive hearing
itself will be commenced in about six months. The
Authority also received two applications relating to the
publication
of a research copy of one of its decisions. A
decision on those two applications has now been published
(RSAA
Application Section 129T-2009-01 and Section 129T-2009-02 (17 July
2009). As stated, the Authority also
substantively reviewed
its cancellation jurisdiction in Refugee
Appeal No 75574.
In May/June, we were again
pleased to host a graduate
law student from the University
of Michigan. This year’s fellow, Rebecca Aili Cohen,
usefully completed a project entitled ‘Protection Elsewhere Agreements in the New Zealand Context’.
As part of wider international
training and development
in this field of law, in conjunction with the UNHCR and International
Association of Refugee Law Judges (and funded by the recipients), Rodger Haines QC and the Chair conducted
training
courses for judges and officials in South Korea, Russia and Japan.
THE AUTHORITY'S
SECRETARIAT
As
for several years now the Authority has received excellent service from
the
Secretariat supplied by the Department of Labour. Its
core of excellent, experienced,
well-trained staff, contribute significantly to the smooth running and
performance of the Authority. It is
essential that, in the transfer of responsibility from the Department
of Labour
to the Ministry of Justice that these skills are retained and built
upon to
provide similar standards of quality and efficiency for the proposed
IPT. The good working relationship between
the
senior management of the Department of Labour and the Authority that
underpins
this excellent service, continued.
Special
thanks must again be given to Graeme Buchanan,
Deputy Secretary of Labour, his Group Manager, Gail Powell, the RSAA
Registrar,
Brian Lewis, and the RSAA Secretariat for their excellent support and
the understanding
of the essential independence required by Authority members in their
decision-making.
CONCLUSION
Again,
this has been a year where for a variety of reasons the role of the
Deputy
Chairperson has been a significant one, his extremely valuable input is
highly
appreciated.
Finally,
again my thanks are due to all Authority members for their strong and
productive commitment to the Authority in a field of growing
complexity,
particularly given the uncertainly about their future with the proposed
disestablishment of the Authority under the Immigration Bill.
…………………………………………………
Allan Mackey
Chairperson
Refugee Status Appeals Authority
APPENDIX A
ALL DECISIONS BY NATIONALITY
AND GENDER, INCLUDING MINORS
Nationality
|
Female
|
Male
|
FY
Total
|
Afghanistan
|
|
3
|
3
|
| Angola |
|
1
|
1
|
| Bangladesh |
1
|
4
|
5
|
Bolivia
|
2
|
2
|
4
|
| Chad |
|
2
|
2
|
China
|
5
|
6
|
11
|
Colombia
|
1
|
|
1
|
Congo
|
|
1
|
1
|
Czech
Republic
|
5
|
4
|
9
|
Egypt
|
1
|
5
|
6
|
Estonia
|
1
|
1
|
2
|
Fiji
|
1
|
|
1
|
Great
Britain
|
2
|
1
|
3
|
Hungary
|
|
1
|
1
|
India
|
1
|
2
|
3
|
Indonesia
|
|
1
|
1
|
Iran
|
5
|
26
|
31
|
Iraq
|
|
2
|
2
|
Israel
|
|
1
|
1
|
| Kenya |
|
1
|
1
|
Malaysia
|
1
|
2
|
3
|
| Myanmar |
1
|
3
|
4
|
| Nepal |
|
5
|
5
|
Nigeria
|
2
|
|
2
|
Pakistan
|
|
1
|
1
|
Poland
|
|
1
|
1
|
Russia
|
1
|
1
|
2
|
Saudi
Arabia
|
2
|
|
2
|
Slovakia
|
2
|
1
|
3
|
Somalia
|
2
|
1
|
3
|
Sri
Lanka
|
4
|
8
|
12
|
Stateless
|
1
|
|
1
|
Sudan
|
|
1
|
1
|
Syria
|
|
1
|
1
|
Togo
|
1
|
1
|
2
|
Turkey
|
2
|
5
|
7
|
Ukraine
|
|
1
|
1
|
Zimbabwe
|
1
|
1
|
2
|
Grand
Total
|
45
|
97
|
142
|
APPENDIX B
ALL DECISIONS BY TYPE AND NATIONALITY,
INCLUDING MINORS
Nationality
|
Grant
|
Dismissal
|
Manifestly
Unfounded |
Refused to
Consider
|
Withdrawals
|
FY
Totals |
Afghanistan
|
2
|
1
|
|
|
|
3
|
Angola
|
|
1
|
|
|
|
1
|
| Bangladesh |
2
|
1
|
|
1
|
1
|
5
|
Bolivia
|
|
4
|
|
|
|
4
|
Chad
|
|
1
|
1
|
|
|
2
|
China
|
4
|
2
|
3
|
|
2
|
11
|
| Colombia |
1
|
|
|
|
|
1
|
| Congo |
|
1
|
|
|
|
1
|
| Czech
Republic |
1
|
4
|
|
|
4
|
9
|
Egypt
|
1
|
5
|
|
|
|
6
|
| Estonia |
|
2
|
|
|
|
2
|
Fiji
|
|
|
1
|
|
|
1
|
Great
Britain
|
|
|
|
|
3
|
3
|
Hungary
|
|
1
|
|
|
|
1
|
| India |
|
3
|
|
|
|
3
|
| Indonesia |
|
1
|
|
|
|
1
|
| Iran |
19
|
11
|
|
|
1
|
31
|
Iraq
|
1
|
1
|
|
|
|
2
|
| Israel |
|
1
|
|
|
|
1
|
| Kenya |
1
|
|
|
|
|
1
|
Malaysia
|
|
2
|
1
|
|
|
3
|
Myanmar
|
2
|
2
|
|
|
|
4
|
| Nepal |
|
5
|
|
|
|
5
|
Nigeria
|
|
2
|
|
|
|
2
|
| Pakistan |
|
1
|
|
|
|
1
|
Poland
|
|
|
1
|
|
|
1
|
Russia
|
1
|
1
|
|
|
|
2
|
Saudi
Arabia
|
2
|
|
|
|
|
2
|
Slovakia
|
|
3
|
|
|
|
3
|
Somalia
|
1
|
2
|
|
|
|
3
|
Sri
Lanka
|
7
|
4
|
|
|
1
|
12
|
Stateless
|
1
|
|
|
|
|
1
|
Sudan
|
1
|
|
|
|
|
1
|
Syria
|
1
|
|
|
|
|
1
|
Togo
|
|
2
|
|
|
|
2
|
| Turkey |
2
|
5
|
|
|
|
7
|
Ukraine
|
|
1
|
|
|
|
1
|
Zimbabwe
|
1
|
|
|
|
1
|
2
|
Grand
Total
|
51
|
70
|
7
|
1
|
13 |
142
|
APPENDIX C
ALL DECISIONS FOR
MINORS BY
NATIONALITY
Nationality
|
Grant
|
Dismissal
|
Manifestly
Unfounded
|
Withdrawals
|
FY
Totals
|
| Bolivia |
|
2
|
|
|
2
|
Czech
Republic
|
|
1
|
|
1
|
2
|
Estonia
|
|
1
|
|
|
1
|
Great
Britain
|
|
|
|
2
|
2
|
Iran
|
1
|
|
|
|
1
|
Nigeria
|
|
1
|
|
|
1
|
Saudi
Arabia
|
1
|
|
|
|
1
|
Slovakia
|
|
2
|
|
|
2
|
Togo
|
|
2
|
|
|
2
|
Turkey
|
|
1
|
|
|
1
|
Grand
Total
|
2
|
10
|
0
|
3
|
15
|
APPENDIX D
MEMBERSHIP (during year to 30
June 2009)
Name
|
Expiry
Date of Present Term*
|
Baddeley,
Josephine Gail (Dr)
|
31.10.09
|
Burson,
Bruce Llewellyn
|
30.06.10
|
Dingle,
Bridget Anne
|
31.10.09 |
Haines
QC, Rodger
|
30.09.10
|
Mackey,
Allan Robert (Chairman)
|
30.06.10
|
Molloy,
Andrew Nesbit
|
30.06.10
|
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.
APPENDIX E
FINANCIAL
DISCLOSURE
Fees
received by each Member of the Refugee Status
Appeals Authority for the period 1 July 2008
to 30 June 2009.
Member
|
Fees
Paid ($)
|
Baddeley,
Josephine Gail
|
48,425
|
Burson,
Bruce Llewellyn
|
147,141
|
Dingle,
Bridget Anne
|
118,843
|
Haines
QC, Rodger
|
243,550
|
Mackey,
Allan Robert
|
185,320
|
Molloy,
Andrew Nesbit
|
118,160
|
Robins,
Margaret Lesley
|
37,050
|
Roche,
Martha Anne
|
98,165
|
| Treadwell,
Charles Martin |
73,850 |