RSAA Annual Report to 30 June 2010

ANNUAL REPORT TO 30 JUNE 2010

This is the 11^th (and final) annual report presented to the Minister of Immigration pursuant to Schedule 3C of the Immigration Act 1987. The Immigration Act 2009 establishes the Immigration and Protection Tribunal (IPT) into which this Authority, and the three immigration-related Authorities/Tribunal will be subsumed. A final report to the date of disestablishment, which has now been set at 29 November 2010, will be published to ensure that all of the information and statistics relating to the Authority is openly published.

OVERVIEW

Despite the unsettling aspects for both members and Secretariat, all of whom face uncertain futures, the Authority has recorded a very productive year resolving 31% more cases than the previous year and publishing 38% more decisions than the budgeted forecast figure.

In this financial year, the Authority resolved 186 appeals, in comparison to 142 in the previous year. At the commencement of the year, there were 66 undecided matters. That number has reduced to 58 as at the end of this year. There were 178 new appeals/applications received during the year, significantly higher than the 121 received in the previous year. The 186 matters resolved was thus slightly ahead of the number of new matters received.

Significant time and effort was devoted by the Chair and Deputy to a continuing flow of consultations and submissions in relation to the development of the Immigration Act 2009 and, subsequent to its enactment, the preparation of the regulatory framework and appropriate forms for the IPT. As the Chairperson of the IPT has recently been announced these matters will now fall for his consideration. The Authority will of course, in the transition period to the time of disestablishment, provide maximum support and co-operation to assist in the establishment of a high quality Tribunal in this specialist area of both international and domestic law.

Considerable time was also devoted by the Chair and Registrar to a round of new appointments/reappointments during the latter part of 2009.

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

The Refugee Status Branch received 382 applications, compared with 246 in 2008/2009 and 267 in 2007/2008 (244 applications were received in 2006/2007 and 317 applications in 2005/2006).

This year the Authority resolved appeals lodged by nationals of 38 countries. Nationals of Fiji generated the highest percentage of appeals resolved (12.9%), followed by nationals of India and Iran (11.8%), Sri Lanka (7%), and the Czech Republic and Pakistan (5.4%). Of the 186 matters finalised, 15 were withdrawn or rejected, resulting in 171 published decisions.

Details of appeals resolved, including statistics by country and gender, are contained in Appendices A to C.

Fifty-two appellants were declared to hold refugee status, including five people against whom cancellation proceedings were brought but whose refugee status was confirmed. Of the 119 appeals declined, 10 related to cancellation cases where refugee status was revoked. In total, 15 cancellation cases were dealt with by the Authority during the year, and a further two undetermined cases were carried forward into the 2010-2011 financial year.

Twenty-six of the 171 decisions related to minors, all but one of whom were accompanied by at least one parent. Six of the 15 withdrawals related to minors. In total 32, of the 186 fully resolved appeals were minors.

Eight manifestly unfounded appeals were determined in this financial year, compared with six 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.

It is pleasing to record that the number of outstanding appeal matters dropped from 66 to 58 and that the average age for appeals on hand, including cancellations has fallen from 4.49 months to 3.4 months (omitting one long outstanding case where the delays are beyond the control of the Authority).

Since the Authority was established in 1991, it has received a total of 9,210 appeals and other refugee determination matters and published 7,561 decisions. A further 1,579 appeals have been withdrawn and another 12 appeals have historically been resolved in various ways. The remaining balance of 58 appeals and cancellations are those carried forward into the 2010-2011 financial year.

Of the total decisions published by the Authority since 1991, 1,430 have been declared to hold refugee status and the balance of 6,131 have been dismissed.

The average percentage of appeals allowed since the Authority was established is 18.9%.

During the course of the financial year, three applications for judicial review were lodged in the High Court. This continues the very low level of judicial reviews that has prevailed for many years.

Significantly, the Authority is awaiting the decision from the Supreme Court in the case of Tamil X (Attorney-General (Minister of Immigration) v X & Ors, SC 107/2009) which was heard in June 2010. It is anticipated this decision will be of useful guidance in the interpretation and application of the “exclusion clause” (Article 1F of the Refugee Convention).

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...” (“fraud”) (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 again reviewed the aspects of the cancellation jurisdiction. In particular, it determined that applicants or appellants who hold New Zealand citizenship cannot, even where the refugee status may have been obtained by fraud, be found to be refugees, on a continuing basis, as they have available to them the protection provided by their New Zealand citizenship. (See Refugee Appeal No 76377 (27 April 2010)).

BUDGET

The expenditure for both the Authority’s Secretariat and its members remained well within appropriation. Recalling that the appeal rate was 47% higher and total appeals resolved were 31% up on last year this is a considerable achievement reflecting well on overall productivity and value for money.

AUTHORITY MEMBERSHIP

There were eleven warranted members as set out in Schedule D.

As noted, advertisement for new and reappointment of members took place in 2009. Ms Dingle was reappointed and two new part-time members, Ms Aitchison and Ms Henare, were appointed. This provided a small increase in the full-time equivalent membership. The new members have been mentored, and involved in training and induction over the past six months of the financial year. The warrants for all members will expire at the date of disestablishment.

Some members of the Authority hold warrants on other immigration tribunals: The Deportation Review Tribunal (DRT), 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 involved in the financial year, and their remuneration, see Appendices D and E.

THE AUTHORITY'S ACTIVITIES

As has been noted in recent Annual Reports the complexity of cases continues on an upward trend. The Authority has built up substantive jurisprudence over the almost twenty years that it has been in existence. The transition and harmonisation of that jurisprudence with the additional protection jurisdictions added by the Immigration Act 2009 will provide a substantive challenge to the IPT.

In February 2010 a joint training and development course was held in Sydney with the Australian Refugee Review Tribunal (RRT) and this was followed by a regional meeting of the International Association of Refugee Law Judges. The courses were highly productive. They were funded within a tightly constrained budget and some contributions by members personally.

THE AUTHORITY'S SECRETARIAT

The Authority has for many years received excellent service from the Secretariat supplied by the Department of Labour. They have ensured a first class, well-trained, independent service which has allowed high productivity and performance. The Secretariat should be extremely proud of the work they have done and the members, and all associated with the Authority, owe them a debt of gratitude for the many years of dedicated service, particularly in the recent uncertain times. The transition of administration responsibilities for these appellate functions, from the Department of Labour to the Ministry of Justice, has been, and will continue to be, challenging for all involved.

The good working relationship between the senior management of the Department of Labour and the Authority underpins the excellent service provided. Special thanks must be given to George Mason, Acting Deputy Secretary Legal, DOL and the RSAA Registrar, Brian Lewis who has very ably led the Secretariat for the last 15 years. During this year the Group Manager, Gail Powell, retired after excellent service to the Authority over many years.

CONCLUSION

The extremely valuable support and input from the Deputy Chairperson, Mr Rodger Haines, QC, must again be noted. Mr Haines’ knowledge of international refugee and protection law places him internationally as a renowned expert on the subject. His involvement in its development in New Zealand over the last 25 years has been truly exceptional.

Finally, my thanks and appreciation to all of the Authority members for their excellent support, particularly during these uncertain times. While in my view it is regrettable, particularly from an independence viewpoint, that the opportunity was not taken in the Immigration Act 2009 to provide long-term “career” members dedicated to this field, with secure tenure and remuneration provisions, it is to be hoped that many of them will be appointed to the IPT so that a core of institutional and jurisprudential expertise can be used to build a successful new Tribunal.

…………………………………………………
A R Mackey
Chairperson
Refugee Status Appeals Authority

APPENDIX A

ALL DECISIONS BY NATIONALITY AND GENDER, INCLUDING MINORS

Nationality	Female	Male	FY Total
Afghanistan	1	4	5
Albania		1	1
Algeria		4	4
Bangladesh		5	5
Brazil		1	1
Chad		1	1
China	2	1	3
Colombia	2	2	4
Congo	4	2	6
Czech Republic	5	5	10
Egypt	1	4	5
Ethiopia	2	1	3
Fiji	12	12	24
Ghana		1	1
Guinea		1	1
India		22	22
Iran	8	2	10
Iraq	2	4	6
Israel	1	1	2
Malaysia		2	2
Myanmar	1		1
Nepal		1	1
Nigeria		2	2
Pakistan	1	9	10
Philippines	1		1
Romania		1	1
Russia		1	1
Saudi Arabia		3	3
Singapore		1	1
Slovakia	2	2	4
Somalia	1	3	4
South Africa	2	1	3
Sri Lanka	5	8	13
Sudan		2	2
Syria	4	4	8
Turkey		1	1
Uganda		1	1
Vietnam		1	1
Grand Total	57	129	186

APPENDIX B

ALL APPEALS RESOLVED BY TYPE AND NATIONALITY, INCLUDING MINORS

Nationality	Grant	Dismissal	Manifestly Unfounded	Refused to Consider	Withdrawals	FY Totals
Afghanistan	3	2				5
Albania					1	1
Algeria	3	1				4
Bangladesh		4	1			5
Brazil		1				1
Chad		1				1
China	1	2				3
Colombia	2	2				4
Congo	2	4				6
Czech Republic	4	6				10
Egypt		5				5
Ethiopia	2	1				3
Fiji	3	16			5	24
Ghana		1				1
Guinea		1				1
India		20	1		1	22
Iran	13	9				22
Iraq	4	2				6
Israel			2			2
Malaysia			2			2
Myanmar	1					1
Nepal		1				1
Nigeria		2				2
Pakistan	1	9				10
Philippines					1	1
Romania		1				1
Russia	1					1
Saudi Arabia	3					3
Singapore			1			1
Slovakia		4				4
Somalia	2	2				4
South Africa	3					3
Sri Lanka	1	12				13
Sudan	2					2
Syria		1			7	8
Turkey			1			1
Uganda		1				1
Vietnam	1					1
Grand Total	52	111	8	0	15	186

APPENDIX C

ALL DECISIONS FOR MINORS BY NATIONALITY

Nationality	Grant	Dismissal	Manifestly Unfounded	Withdrawals	FY Totals
Afghanistan	2				2
Colombia	1				1
Congo	1	1			2
Czech Republic	1	3			4
Ethiopia		1			1
Fiji		6		1	7
Iran		1			1
Pakistan		2			2
Slovakia		2			2
Somalia	1				1
South Africa	1				1
Sri Lanka		3			3
Syria				5	5
Grand Total	7	19	0	6	32

APPENDIX D

MEMBERSHIP (during year to 30 June 2010)

Name	Expiry Date of Present Term3
Aitchison, Sharelle Anne	29.11.10
Baddeley, Josephine Gail	31.10.094
Burson, Bruce Llewellyn	29.11.10
Dingle, Bridget Anne	29.11.10
Haines QC, Rodger Phillip George (Deputy Chairperson)	29.11.10
Henare ONZM, Denese Letitia	29.11.10
Mackey, Allan Robert (Chairperson)	29.11.10
Molloy, Andrew Nesbit	29.11.10
Robins, Margaret Lesley	29.11.10
Roche, Martha Anne	29.11.10
Treadwell, Charles Martin	29.11.10

APPENDIX E

FINANCIAL DISCLOSURE

Fees received by each Member of the Refugee Status Appeals Authority for the period 1 July 2009 to 30 June 2010.

Member	Fees Paid ($)
Aitchison, Sharelle Anne	38,025
Baddeley, Josephine Gail	18,525
Burson, Bruce Llewellyn	147,295
Dingle, Bridget Anne	123,549
Haines QC, Rodger Phillip George	160,837
Henare ONZM, Denese Letitia	65,487
Mackey, Allan Robert	196,202
Molloy, Andrew Nesbit	118,160
Robins, Margaret Lesley	32,500
Roche, Martha Anne	96,627
Treadwell, Charles Martin	73,850