Refugee Status Appeals Authority
REFUGEE APPEAL NO. 46/91
RE SM
AT AUCKLAND
Before: R.P.G. Haines (Chairperson)
J.M. Priestley (Member)
H. Domzalski (UNHCR)Date of Decision: 19 August 1991
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DECISION ON APPLICATION FOR LEAVE TO APPEAL OUT OF TIME _____________________________________________________________________This is an application for leave to appeal out of time.
THE FACTS
The appellant’s application for refugee status was declined by the Refugee Status Section of the New Zealand Immigration Service and it would appear that that decision was communicated to the appellant’s immigration consultant by letter dated 16 July 1991. The consultant, by letter dated 6 August 1991, wrote to the Secretariat of the Authority advising that an extension of time for appealing was sought and set out the grounds on which the application was made. An explanation was given as to why the 10 day period had proved insufficient. The letter further advised that the appellant had recently received fresh evidence in the form of two letters from his father and that this evidence was material to the intended appeal.THE LAW
Paragraph 6 of the Refugee Status Appeals Authority Terms of Reference approved by Cabinet in March 1991 stipulates that written appeals are to be lodged with the Secretariat of the Authority “within 10 working days” of receiving notice of the Refugee Status Section decision.Were this Authority a statutory body, there would in all likelihood be no jurisdiction to extend such a time limit in the absence of express authority so to do. See Soto v Minister of Immigration (1986) 2 CRNZ 350 (CA). In Canada the position is no different: Flores- Medina v Immigration Appeal Board (1986) 1 Imm.LR (2d) 293 (Federal Court of Canada - Trial Division).
However, the Authority’s procedures are not statute-based and it is therefore necessary to enquire whether the Authority should insist upon strict compliance with the 10 working day period.
Clearly there will be cases where compliance with the 10 day period may be difficult. Bona fide asylum-seekers might suffer unfairly if strict compliance was insisted upon.
This would be inconsistent with justice and the principle that the Convention should be applied in a generous and humanitarian spirit.
The Authority accordingly considers that the time limit for appeal should not be interpreted as being inflexible and further, that the Authority has a discretion to enlarge the 10 working day period in appropriate cases.
We believe that this ruling is consistent with Conclusion No. 15 (1979) adopted by the Executive Committee of the UNHCR Programme which provides in paragraph (i):
“While asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or the non-fulfilment of other formal requirements, should not lead to an asylum request being excluded from consideration.”The discretion we have ruled to exist is to be exercised according to the requirements of fairness and justice in the individual case. All of the relevant circumstances must be taken into account. The weight (if any) to be given to any particular factor will depend upon the circumstances.The Authority requires an application for leave to appeal out of time to be filed together with a full and cogent statement of the grounds and evidence on which the application is based, including reasons for the delay, and the grounds of the substantive appeal.
In the exercise of the discretion it may on occasion be useful to refer to decisions of the Immigration Appeal Tribunal (UK) which, by virtue of the Immigration Appeals (Procedure) Rules 1984, has a discretion to allow an out of time appeal to proceed. For example, it has been held by the English Court of Appeal that the test to be applied is whether it is just and right to allow the appeal to proceed by reason of special circumstances: R v Immigration Appeal Tribunal, Ex parte R.P. Mehta [1976] Imm.A.R. 38 (CA). There it was further held that the rule should be liberally interpreted so as not to let an appellant suffer unfairly. The merits of the substantive appeal may also be relevant to the discretion. See further R v Immigration Appeal Tribunal, Ex parte V.M. Mehta [1976] Imm.A.R. 174, 184-185.
Turning to the present case, on the facts disclosed in the consultant’s letter of 6 August 1991 leave to appeal out of time is granted. The arrival of extra letters might well be highly relevant to the applicant’s case and his claimed status as a refugee. This outweighs the total failure of the appellant to explain his delay and the reasons why he failed to keep in touch with his consultant after the hearing of his case at first instance by the Refugee Status Section of the Immigration Service. The letter itself is to be treated as the notice of appeal. The Secretariat is directed to now allocate a date of hearing for the appeal. The appellant is reminded that a full brief of evidence is to be provided to the Authority at least three clear working days before the hearing.
“R P G Haines”
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[Chairman]