If and when the question of an expanded jurisdiction arises for consideration in the New Zealand context we will require more extensive argument than that heard on the present application. In particular, we will need to examine whether there are circumstances in which we can consider one of our own decisions to be “void”. See (inter alia), for example, Taggart, “Rival Theories of Invalidity in Administrative Law: Some Practical and Theoretical Consequences” in Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 70; Ridge v. Baldwin [1964] AC 40; Twist v Randwick Municipal Council (1976) 136 CLR 106; Martin v Ryan [1990] 2 NZLR 209, 235 (Fisher J.) and of course the New Zealand Bill of Rights Act 1990.

For the purpose of disposing of the present application we hold that the power conferred on us by the Terms of Reference is wholly adjudicative and we therefore have no inherent or continuing jurisdiction to re-open the appeal. This is a conclusion which we base both on general principle and upon the Canadian jurisprudence.

We should add, however, that even if we had power to re-open the present appeal, our decision on the merits of the case would not have been different as the new evidence does not change our conclusion on the relocation issue. We adhere to what we said in our original decision at pp.6-7:

    That would be sufficient to dispose of the case but there is one further issue which needs to be addressed. In the written submissions filed on behalf of the New Zealand Immigration Service it was submitted that our earlier decision in Refugee Appeal No. 46/91 Re SM (19 August 1991) was wrong. It was submitted that the Authority “is a non- statutory creation with a limited function, the jurisdiction of which is entirely circumscribed by the Terms of Reference under which it operates”. Refugee Appeal No. 46/91 Re SM was a decision in which we held that the Authority had jurisdiction to grant leave to appeal out of time. We are not quite sure how this decision bears on the present application but as the question of our jurisdiction has been raised, we believe that it would be appropriate for us to address also whether we have power to grant leave to appeal out of time. It is, of course, a step which logically precedes the hearing of the appeal itself and also any subsequent issue as to whether we should re-open an appeal once a final decision has been delivered.


In Refugee Appeal No. 46/91 Re SM (19 August 1991) this Authority held that the time limit for appeal should not be interpreted as being inflexible and further, that the Authority has a discretion to enlarge the ten working day period in appropriate cases.

In the written submissions filed in the present case we are reminded by the New Zealand Immigration Service that in that case they were not given an opportunity to be heard on the issue and we have been asked to reconsider the decision in the light of their submissions now presented. Those submissions are to the effect that the time limit for appeal is mandatory.

It is correct that due to a regrettable oversight the Immigration Service was not heard prior to delivery of our decision dated 19 August 1991 in Refugee Appeal No. 46/91 Re SM. We are therefore of the opinion that the question must be considered again de novo in the light of the submissions now advanced by the Immigration Service.

The relevant part of our Terms of Reference is paragraph 6, the text of which has been set out earlier, but which for convenience we now repeat:

“6. The Authority shall consider only those claims to refugee status where the claimants have been declined refugee status by officers of the Refugee Status Section and are not otherwise granted residence in New Zealand and where the claimants have lodged written appeals with the Secretariat of the Authority within ten working days of being notified of the decision of their claims.”
In prescribing the manner in which, and the time within, appeals are to be lodged, the Terms of Reference do not lay down what will be the legal consequences of failure to observe those prescriptions. We must accordingly determine whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void what has been done, or as directory, in which case disobedience will be treated as an irregularity not affecting the validity of what has been done.

The legal principles involved are set out in the judgment of Richardson J. in Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue [1990] 3 NZLR 313, 315- 316 (CA):

 “The classic statement of principle on the first matter raised by the appellant’s first ground is that of Lord Penzance in Howard v. Bodington (1877) 2 PD 203, 211
'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.’
Ascribing such labels as 'imperative’, 'mandatory’ and 'directory’ to a statutory provision is not, of course, a substitute for 'trying to get at the real intention of the legislature by 'carefully attending to the whole scope of the statute to be considered'’ (Wybrow v Chief Electoral Officer [1980] 1 NZLR 147, 161). The true question is whether the legislature intended that language which is obligatory in form should have the effect of invalidating the non-complying Act, or whether the Act should nevertheless have legal effect. The question arises only because the legislation itself has not spelled out what the effect of non-observance is to be. The answer turns on an analysis of the language, scheme and purpose of the statute. That analysis often leads to discussion in the cases of the purpose of such a requirement, and the weighing of private rights and public interest. In the end, however, it is a matter of ascertaining what the legislation intends rather than developing or criticizing judicial rationalizations for that legislative intention.
The second aspect of the statutory enquiry relates to waiver. Again the legal principles are clear. Anyone may renounce the benefit of a statutory condition introduced entirely in his or her own favour. But an individual cannot waive a matter in which the public have an interest. In relation to time limits for appeals as in other areas, whether or not the statute embodies a public policy element which neither party to the proposed appeal has power to modify depends on the true construction of the Act.”
On the facts of that particular case it was held that Section 43(6) of the Inland Revenue Department Act 1974 prescribed a mandatory period for the filing of a document, and the doctrine of substantial compliance could not in those circumstances apply to a fixed time limit. Cooke P. noted that the tax field is a technical one “in which broad considerations of equity have little part to play” (p.315 line 16). On that basis the Court adhered to the clear trend of authority and held that in the tax field there is a public interest in the observance of unqualified time limitations and that waiver was not possible.

The same considerations do not apply to the field of refugee determination for the following reasons:

1.    The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees are fundamental components of a protection system motivated by humanitarian concerns.

2.    Under the Refugee Convention New Zealand has an obligation not to return a refugee to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

3.    The scheme and purpose of the Authority’s Terms of Reference is to promote the protection of refugees and the observance of New Zealand’s obligations under the Convention by affording unsuccessful applicants for refugee status a right of appeal to an independent body. The appeal is by way of complete rehearing de novo. The protection so afforded is both meaningful and important. At the present time approximately one-third of appeals are successful. In other words, almost one person in three coming before the Authority has not been properly identified as a refugee by the Refugee Status Section. Appeals to the Authority are therefore especially important.

4.    It has been recognized that because of its humanitarian purpose, the Convention should be applied in a generous and humanitarian spirit: Grahl-Madsen, The Status of Refugees in International Law Volume 1 (1966) 145:

“There is quite some justification for the view that a convention, which States have agreed upon in order to regularize the position of human beings whose status would otherwise be precarious, should be applied generously, in a sympathetic and humanitarian spirit. Moreover, in Recommendation E of its Final Act the Conference of Plenipotentiaries has called for just such a generous application of the provisions of the Refugee Convention.”
5.    New Zealand has undertaken solemn treaty obligations. Those obligations must be performed in good faith: Article 26 of the 1969 Vienna Convention on the Law of Treaties; Brownlie, Principles of Public International Law (4th ed 1990) 616. Article 18 of the Vienna Convention further obliges a State to refrain from acts which would defeat the object and purpose of a treaty. One of the main purposes of a human rights treaty obviously is to assure the protection of human rights and a signatory at a minimum, must not itself deny such rights or allow their violation. Such denial or violation could, however, be brought about by an overly rigid insistence upon strict compliance with the ten working day period.

6.    As previously mentioned, a person becomes a refugee at the moment when he satisfies the definition. Formal determination of refugee status is declaratory, rather than constitutive. In other words, entitlement to the benefits of the Convention is not dependent on any particular act of recognition. As soon as a person satisfies the criteria set forth in Article 1, that person is ipso facto entitled to the benefits under the Convention: Grahl-Madsen, The Status of Refugees in International Law Volume 1 (1966) 157; 340-341; Goodwin-Gill, The Refugee in International Law (1983) 20.

Insistence upon strict compliance with the appeal period would deny to a Convention refugee the protection of the Convention and result in New Zealand being in breach of the fundamental obligation of non-refoulement found in Article 33 of the Convention. The fundamental and binding nature of that Article is emphasized by the fact that it is among the Articles to which Contracting States may not make any reservations - see Article 42.

While the Terms of Reference employ language which is mandatory in form, upon a consideration of the whole scope of the Terms of Reference, and also the terms of the Refugee Convention, we conclude that it was not intended that non-observance of the time limit should necessarily invalidate an intended appeal.

We believe that this ruling is consistent with the conclusion of the Executive Committee of the High Commissioner’s Programme known as Conclusion No. 15 Refugees Without An Asylum Country (1979) 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.”
Although not binding, conclusions adopted by the Executive Committee have been described as sound in substance and consonant with the letter and the humanitarian spirit of both the 1951 Convention and other binding instruments relating to refugees in particular, and to human rights in general. Moreover, the Conclusions represent collective international expertise in refugee matters, including legal expertise: Sztucki, The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme (1989) Volume 1 International Journal of Refugee Law 285, 308.

Unlike tax law, considerations of equity do have a large part to play in the field of humanitarian law and we believe that it is in the public interest that the time limit for appeal be interpreted so as to promote New Zealand’s obligations under the Refugee Convention and in particular, its observance of the obligation of non-refoulement.

We therefore hold that the time limit for appeal should not be interpreted as being inflexible and further, that the Authority has a discretion to enlarge the ten working day period in appropriate cases.

Clearly there will be cases where compliance with the ten day period may be difficult. Bona fide asylum seekers might suffer unfairly if strict compliance were insisted upon.

This would be inconsistent with justice and the principle that the Convention should be applied in a generous and humanitarian spirit.

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. Generally speaking, the Authority will have regard to (inter alia) the length of the delay; the reasons for the delay; the chances of an appeal being successful if an extension is granted; the degree of prejudice to the New Zealand Immigration Service. Where the element of delay is minimal and a plausible explanation has been offered, the merits of the appeal might not normally need to be considered. If the delay is far greater, however, the substantive merits or otherwise of the prospective appeal may become pertinent. In an extreme case, it may in fact be doing the intending appellant a disservice to allow a self-evidently futile appeal to go ahead at all.

The Authority accordingly 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 some cases evidence by way of affidavit will be necessary.

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: Mehta v Secretary of State for the Home Department [1975] 2 All ER 1084 (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.


It is our conclusion that while the Authority has jurisdiction to grant leave to appeal out of time, once a final decision on an appeal has been delivered, that appeal cannot be re- opened for the purpose of allowing further evidence to be produced.

The appellant’s application to re-open this appeal is accordingly declined.

“R P G Haines”