Refugee Status Appeals Authority
REFUGEE APPEAL NO. 680/92
AT AUCKLANDBefore: A.R. Mackey (Chairman)
R.P.G. Haines (Member)
Appearing for the Appellant: No appearance
Appearing for the NZIS: No appearance
Date of Hearing: 26 July 1994
Date of Decision: 27 February 1995
DECISION OF THE AUTHORITY DELIVERED BY R.P.G. HAINES___________________________________________________________________
This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellant, an Indian national of the Sikh faith born in the Punjab.
BACKGROUNDThe appellant is a twenty-seven year old man who arrived in New Zealand on 24 October 1989. His refugee application was not filed until 9 April 1992. It would appear that on 2 June 1992 he married a New Zealand citizen.
He was interviewed by the Refugee Status Section on 26 August 1992. His application for refugee status was declined by letter dated 29 September 1992.
By letter dated 16 October 1992, his immigration consultant, Keith Downs Consultants, Tauranga, wrote to the Authority enclosing a separate letter dated 12 October 1992 signed by the appellant stating that he wished to appeal against the Refugee Status Section decision. This separate document gives as the appellant’s address a Post Office Box address in Hastings. Subsequently, by letter dated 26 March 1993, Keith Downs Consultants advised the Authority that Mr Trevor Booth, solicitor of Rotorua had been instructed and that all further correspondence was to be directed to him.
The appeal was first set down for hearing on 24 May 1994 at 2.00 pm but the fixture was adjourned when the Authority was told on the day before the hearing that a member of Mr Booth’s family had suddenly taken ill and that he was unable to attend the hearing. A further fixture was allocated for 26 July 1994.
By letter dated 25 July 1994, Mr Booth notified the Authority that he had been unable to make contact with the appellant and that he would be withdrawing from the case. The material part of the letter reads:“I have been unable to make any contact with the abovenamed.The last contact with him was the receipt of the letter dated 15th March 1993 authorizing me to act for him.I wrote to him on 5th August 1993 offering to arrange an application for Legal Aid but no reply to this letter was received.I wrote to him again on 17th May when the hearing had been scheduled for an earlier date and no reply was received.I wrote last on 18th July advising him of the latest hearing and asking him to contact me.All of this correspondence has been sent to the address shown by him on 15th March.In the circumstances I will be unable to assist the Authority and I feel I do not have instructions current for me to represent him.I ask leave to withdraw from the proceedings.”When the case was called at 10.00 am on 26 July 1994, there was no appearance by the appellant.
Enquiries by the New Zealand Immigration Service confirm that there is no record of the appellant’s departure from New Zealand.
The issue which now arises is how the appeal is to be disposed of in the appellant’s absence.
NON-APPEARANCE: INCONSISTENT APPROACHESWhen the Authority was first constituted in 1991, it was rare for an appellant not to appear at the hearing. However, as the number of appeals has grown, so too have the cases in which there has been no appearance by an appellant. The jurisprudential problems raised by non-appearance cases have never been addressed. Nor has the Authority been consistent in its approach to the issue. This is clearly undesirable.
The cases so far have been approached in four different ways:
1. The merits of the appeal have been explored with credibility issues resolved in favour of the appellant.
See, for example, Refugee Appeal No. 34/91 Re GS (9 June 1992) 4; Refugee Appeal No. 150/92 Re SS (9 December 1992) 9; Refugee Appeal No. 147/92 Re MK (11 December 1992) 5; Refugee Appeal No. 295/92 Re BS (28 April 1993) 4; Refugee Appeal No. 1530/93 Re HP (17 December 1993) 4; Refugee Appeal No. 179/92 Re NN (17 March 1994) 5.
2. Credibility issues have been resolved against the appellant, i.e. a finding made that the appellant is not credible.
See, for example, Refugee Appeal No. 773/92 Re AYKW (16 July 1993) 4- 5; Refugee Appeal No. 373/92 Re SS (5 November 1993) 5; Refugee Appeal No. 1310/93 Re LZG (6 December 1993) 4; Refugee Appeal No. 1568/93 Re MSR (2 February 1994) 4; Refugee Appeal No. 899/92 Re AS (16 February 1994) 5; Refugee Appeal No. 415/92 Re SK (1 March 1994) 7.
3. Due to the appellant’s failure to appear, it has been held that issues of credibility cannot be resolved.
See, for example, Refugee Appeal No. 596/92 Re MMH (28 May 1993) 3; Refugee Appeal No. 806/92 Re BSG (28 May 1993) 3; Refugee Appeal No. 433/92 Re MSAK (16 July 1993) 5; Refugee Appeal No. 770/92 Re SBS (3 February 1994) 4-5; Refugee Appeal No. 126/92 Re KS (8 March 1994) 4.
4. No credibility finding has been made because the appeal could be dismissed on other grounds (e.g. real chance test not satisfied, relocation, etc).
See, for example, Refugee Appeal No. 146/92 Re MP (1 February 1993) 7; Refugee Appeal No. 157/92 Re JS (12 March 1993) 8; Refugee Appeal No. 535/92 Re HM (18 June 1993) 5; Refugee Appeal No. 496/92 Re KL (25 November 1993) 4; Refugee Appeal No. 211/92 Re NKS (17 March 1994) 6.
THE REASONS FOR NON-APPEARANCEThe non-appearance of an appellant could be due to a number of factors, not all of them of an appellant’s own making. The list which follows is by no means exhaustive:
Importantly, on the day of the hearing, the Authority will, in most cases, be unaware of the reason for the appellant’s non-appearance and therefore will be in no position to judge whether the absence is deliberate or inadvertent.
- language difficulties leading to inability to understand the Authority’s fixture notice or correspondence from the solicitor or immigration consultant by whom the appellant is represented
- the appellant may be illiterate
- the appellant may have moved address
- the Authority might have inadvertently sent the fixture notice to a wrong address
- delay in delivery of the mail (or non-delivery) by New Zealand Post
- default or negligence on the part of the solicitor or immigration consultant
- sudden illness or accident en route to the hearing
- the appellant may have left New Zealand.
Given the frequency with which non-appearance cases now occur, it is timely for the Authority to determine, as a matter of policy, how such cases are to be dealt with. In summary, we have concluded that in future where an appellant fails to appear, the appeal is to be dismissed on the basis that as no findings as to credibility or fact can be made, the Authority cannot satisfy itself whether the requirements of the Refugee Convention are met. However, where application is later made for a re-hearing of the appeal, that application should be viewed sympathetically.
Jurisdiction to deal with non-appearance cases in the manner proposed must be found in the Terms of Reference and in the Authority’s administrative law duties as a decision-maker.
THE TERMS OF REFERENCEThe Authority is not a statutory tribunal. It is a creature of the prerogative: Singh v Refugee Status Appeals Authority  NZAR 193 (Smellie J).
The Terms of Reference (TR) under which the Authority presently operates are the third such Terms to have been issued since the Authority was set up in 1991. Several features of the Terms of Reference require consideration.
THE INTERVIEWOne of the most significant and important features of the Terms of Reference is that the Authority is under a mandatory duty to give the appellant an opportunity to attend an interview: TR para 8(3).“8(3) Subject to paragraphs 5(2) and 8(4) of these Terms of reference, the Authority shall give the appellant an opportunity to attend an interview and shall consider any evidence presented by the appellant, unless the claim to refugee status is prima facie “manifestly unfounded” or “clearly abusive” or “manifestly well- founded”.However, an interview is discretionary in the following circumstances:
(a) Cases under paras 5(1)(f) and 5(1)(g) i.e. where there is a further claim based on changed circumstances.“8(4) The Authority may determine appeals made under paragraphs 5(1)(f) and 5(1)(g) of these Terms of Reference without interviewing the appellant and shall consider any evidence presented in writing by the appellant and the NZIS. Where the Authority allows an appeal under paragraph 5(1)(f), it shall proceed immediately to consider the merits of the claim pursuant to paragraph 5(1)(g).”These paragraphs are not relevant in the present context.
(b) Cases which are prima facie “manifestly unfounded” or “clearly abusive” or “well-founded”.
As to “manifestly unfounded” or “clearly abusive” cases, we have held that such cases will rarely, if ever, be encountered. See Refugee Appeal No. 1/92 Re SA (30 April 1992) 12-19.
NOTICE OF THE INTERVIEW AND DELIVERY OF DECISION
Because there is a duty to give the appellant an opportunity to attend an interview, it is mandatory for notice of the date of hearing to be given. The minimum is ten working days: TR para 11:“11. The Authority shall give to each appellant at least 10 working days notice of the date on which the appeal is to be considered and of the date of any hearing involving the appellant.”Aside from prescribing the giving of notice of the hearing, the Terms of Reference require that a copy of the Authority’s written decision be provided to the appellant.“18(2)The Authority shall provide a copy of the decision to the appellant (or any representative of the appellant) and shall be responsible for informing the New Zealand Immigration Service and the Minister of Immigration of the outcome of every appeal.”The requirement to provide the appellant with a copy of the decision is significant in relation to paragraph 15 of the Terms of Reference:“15 A decision of the Authority shall be a decision of the member(s) hearing a case. Where more than one member hears a case and members are unable to reach a unanimous decision, the decision of the majority shall prevail. Where members are evenly divided on a decision, the outcome shall be in favour of the appellant. A decision of the Authority shall not be reconsidered by the Authority once conveyed to the appellant (except as provided for in paragraph 5(1)(c) - (g) of these Terms of Reference.”Thus, a decision cannot be reconsidered by the Authority “once conveyed” to the appellant.[emphasis added]
However, where an appellant cannot be located, and does not attend the hearing, when can it be said that notice of the date of hearing has been given and, in turn, the decision of the Authority has been “conveyed” to that appellant?
The responsibility for “conveying” the decision is the Authority’s: TR para 18(2):
SERVICE OF DOCUMENTSThe Terms of Reference contain specific provisions as to service of documents. Unfortunately, these provisions are lacking in clarity.
As to service of notices, it is required that when an appellant lodges an appeal that the appeal contain an address for service: TR para 8(1):“8(1) Every appeal to the Authority shall be in writing and shall contain an address for service which may be either the appellant’s personal address or the address of the appellant’s representative.”The definition of “address for service” is contained in TR para 6(4):“6(4) For the purposes of these Terms of Reference the term “address for service” means the most recent address provided to the New Zealand Immigration Service or to the Authority by the appellant, which may be either the appellant’s personal address or the address of the appellant’s representative.”The following points are to be noted:
(a) There is no complete congruence between TR para 8(1) and TR para 6(4). Para 8(1) implicitly defines the address for service as the address given in the appeal. Para 6(4), on the other hand, contemplates that the address for service is the most recent address provided by the appellant. There is no explicit provision to the effect that any new address provided by an appellant is to be treated as the address for service for the purposes of para 8(1). Everything is left to implication. This loose form of drafting is not desirable and it may be necessary to apply the rule that specific provisions normally prevail over general ones: J.F. Burrows, Statute Law in New Zealand (1992) 221.
(b) It is doubtful whether service at the most recent address provided to the NZIS (cf. the Authority) is the same as service at the address for service given in compliance with paragraph 8(1).
(c) There is no prescribed form for lodging an appeal. Few, if any appellants explicitly provide “an address for service”. Everything is left to implication. See for example, the common case where the appeal is lodged by way of a letter from a solicitor or consultant. If the letter is silent on the point, is it implicit that the address for service is the firm’s address as shown on the letterhead? On the present facts, the appellant’s letter of appeal contained one address, the consultant’s letter another. In addition, the consultant subsequently required that all correspondence be addressed to a solicitor who, in turn, later withdrew.
(d) The difficulties which attend the service of a notice of the date of hearing apply also to service of the decision itself.
There is an even more fundamental problem. Notice of the date of hearing is required to be given by personal service or sent to the appellant’s address for service by registered post before the notice is deemed to be received by the appellant: TR para 14:“14 Any notice or other matter to be given to the appellant by the Authority shall be given to the appellant by personal service or be sent to the appellant’s address for service by registered post, in which case it shall be deemed to be received by the appellant 5 working days after being posted.”Because the mandatory methods of service are both cumbersome and impracticable, neither method is currently employed by the Authority’s Secretariat. In the result, the Authority cannot rely on the deeming provisions of TR para 14.
FINALITY OF DECISIONThere is no right of re-hearing or of appeal to a higher authority: TR para 5(4):“5(4) The Authority’s decision on any matter properly before it shall be final and there shall be no right of appeal or re-hearing on that matter, and the Minister of Immigration agrees to be bound by the decision.”The consequences of delivering a decision where the appellant may be unaware of the date of hearing are not addressed by the Terms of Reference. The question which falls for consideration is how this lacuna is to be dealt with.[emphasis added]
TERMS OF REFERENCE: CONCLUSIONSThe Terms of Reference contain less than satisfactory provisions as to service of notices and fail to make provision for non-appearance cases.
The Authority’s own failure, if not its inability, to give notice of a date of hearing either by personal service or by registered post (TR para 14) compound these difficulties.
The choice facing the Authority is either not to hear the appeal until such time as the appellant can be contacted or to dismiss the appeal. We have decided against the first option because it places in the hands of unscrupulous appellants an ability to stall the appeal process by the simple expedient of going to ground or changing address without notifying either the Immigration Service or the Authority. The Authority has a duty to discourage abuses of this kind. The advantage of the second option is that it provides an incentive for appellants to keep in touch with the Authority. In recognition of the fact that disposal of the appeal where the appellant is unaware of the hearing may breach the rules of fairness, we believe that a safeguard is required. We propose that the Authority readily grant a re-hearing should the appellant so later request.
The issue is whether the Authority has jurisdiction to re-hear an appeal which has been dismissed without consideration of the merits following the non-appearance of an appellant. It is this issue which will now be addressed.
NON-APPEARANCE: WHETHER THERE IS JURISDICTION TO RE-HEAR AN APPEAL
In view of the fact that the Terms of Reference at para 5(4) explicitly provide for finality and exclude any right of appeal or re-hearing, and at para 15 prohibit the Authority from reconsidering a decision conveyed to the appellant, there is a real question as to whether in non-appearance cases the Authority has jurisdiction to grant a re-hearing. In addressing this issue, the Authority believes that the focus of the enquiry should be on the following factors:
1. The finality principle in TR 5(4) and TR 15 is a principle based on policy considerations. It may have to yield on occasion to other policy considerations of greater weight. This the Terms of Reference themselves recognize in that they permit second refugee applications.
2. The general law recognizes that there are exceptions to the finality principle.
3. The Authority's mandatory duty to give the appellant an opportunity to attend a hearing can be seen as a principle of overriding importance. That is, where an appellant is not aware of the date of hearing there is a very real question as to whether the “hearing” which then takes place complies with the Terms of Reference.
4. The Authority has a duty to act fairly.
THE FINALITY PRINCIPLE: POLICY GROUNDSThe principle of finality of decisions is based on policy grounds. For that reason the principle is flexible. A less formal or legalistic approach is necessary in the case of an administrative tribunal (such as the Authority) where there is no, or a very restricted, avenue of appeal. Justice may require the re-opening of administrative proceedings: Chandler v Alberta Association of Architects  2 SCR 848, 861- 862 (SC:Can).
As the finality principle is not an “absolute”, it can be qualified in appropriate circumstances by policy considerations of a more compelling nature. The Terms of Reference themselves permit the lodging of more than one refugee application: TR para 5(1)(f) and see Refugee Appeal No. 2245/94 Re SS (28 October 1994).
In the present case, those policy considerations are provided by the nature of the subject matter. The Authority is the instrument through which New Zealand discharges its international obligation under the Refugee Convention not to refoule refugees to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion (Article 33).
In performing its obligations, the Authority is under a duty to observe high standards of fairness. See Refugee Appeal No. 474/92 Re KA (12 May 1994) 15- 21. The rationale, as explained by Lord Bridge in R v Secretary of State for the Home Department, Ex parte Bugdaycay  AC 514, 531G (HL) is that:“The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”This is, of course, a value judgment based on policy considerations. We see no reason why those same considerations should not be taken into account in the present context.
Policy considerations have been relied on by the Authority in analogous cases. In Refugee Appeal No. 59/91 Re R (19 May 1992) 18-20, the following public policy grounds were relied on by the Authority in holding that it had jurisdiction to grant leave to appeal out of time:“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.We are of the view that the same policy considerations apply in the present context to justify a holding that the Authority has jurisdiction in appropriate cases to re-hear an appeal. In addition, the law recognizes that the finality principle has exceptions which, we believe, apply in the present circumstances.
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.”
THE FINALITY PRINCIPLE: EXCEPTIONSTwo exceptions to the finality principle have been recognized:
1. The Kensington and Chelsea principle.
See Wade, Administrative Law (6th ed 1988) 933:“Once a tribunal has announced its decision it has, as a general rule, no power to reconsider it or to reopen the case, unless of course its decision is quashed by the High Court. This applies equally where one of the parties later discovers fresh evidence which might well alter the decision, and in such a case the court has no power to assist by quashing. But there is an exception where the tribunal’s decision is given in ignorance that something has gone wrong, e.g. that a notice sent to one of the parties has miscarried. In that case the tribunal may and indeed should reopen the case, provided it is satisfied that the party prejudiced by the mistake has a real and reasonable excuse.(1)The first authority cited in the text is R v Kensington and Chelsea Rent Tribunal, Ex parte MacFarlane  3 All ER 390, 396 (QBD):“... where ... the tribunal has acted impeccably so far as its own duty is concerned, has in other words sent out the right notices by the right means at the right time and has had no indication that the notices have gone astray or that the applicant for any other reason cannot attend, then an order made in those circumstances is a regular order and not normally open to challenge on certiorari. However the disappointed party has what is certainly a cheaper if not more effective remedy open to him, that he can go back to the tribunal, explain why he did not attend, and the tribunal will then have the jurisdiction if it thinks fit to re-open the matter and to reconsider its decision in the light of representations made by the absent party.”This statement is directly applicable to the facts of the present case and provides a sure foundation for jurisdiction to grant a re-hearing in non- appearance cases.
The other decision cited by Professor Wade is Charman v Palmers Scaffolding Ltd  I.C.R. 335. There it was held that, although there was no inherent power in an industrial tribunal to order a re-hearing and while no specific power to do so was given by the relevant legislation, the fact that under the applicable regulations the tribunal could both give directions and regulate its own procedure meant that the tribunal had power to order a re-hearing.
Therefore, the Authority’s power under TR para 16 to regulate its own procedure and to conduct hearings in such manner as it thinks fit is, in the present context, a significant power and it too is a further source of jurisdiction to grant a re-hearing.
2. Where there has been a failure of natural justice.
This principle has been most fully developed in Canada. See Refugee Appeal No. 59/91 Re R (19 May 1992) 8-10 where the relevant cases are collected and analyzed:“Some four years after publication of Wydrzynski’s text, the issue was specifically considered by the Canadian Federal Court of Appeal in Gill v. Canada (Minister of Employment and Immigration)  2 FC 425. Gill had been found not to be a Convention refugee following a hearing “on the papers”. Subsequently, however, in the decision of Singh v. Minister of Employment and Immigration  1 SCR 177, the Supreme Court of Canada held that applicants for refugee status were entitled to an oral hearing. Relying on Singh, Gill then made application to the Immigration Appeal Board for a re-opening of his initial application. That application was refused on the ground of absence of jurisdiction. The Federal Court of Appeal held, however, that there was jurisdiction to re-open the appeal as there had been a “failure in natural justice” by the Board’s initial failure to grant an oral hearing. This constituted adequate reason for it to grant a re-hearing (p.430). After referring to Lugano v. Minister of Manpower and Immigration the Court stated at p.428-430:“However, in Woldu v. Minister of Manpower and Immigration  2 FC 216 (CA) decided October 27, 1977, another case under the previous Act, Le Dain J. who had concurred in the Lugano decision, suggested this significant qualification, at p.219:'Notwithstanding the general principle, affirmed in the Lugano case, that an administrative tribunal does not have the power, in the absence of express statutory authority, to set aside its decision, there is judicial opinion to suggest that where a tribunal recognizes that it has failed to observe the rules of natural justice it may treat its decision as a nullity and re-hear the case. See Ridge v. Baldwin  AC 40 at p.79; R v. Development Appeal Board, Ex parte Canadian Industries Ltd (1970) 9 DLR (3d) 727 at pp.731-732, and compare Posluns v. Toronto Stock Exchange  SCR 330 at p.340.’This suggestion, clearly an obiter dictum, was concurred in by MacKay DJ.In Ridge v. Baldwin, supra, Lord Reid asserted at p.79:'Next comes the question whether the respondents’ failure to follow the rules of natural justice on March 7 was made good by the meeting on March 18. I do not doubt that if an officer or body realizes that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.’This dictum was followed by the Supreme Court of Canada in Posluns v. Toronto Stock Exchange, supra, where the Board of Governors of a stock exchange granted a re-hearing of a disciplinary action. The Court upheld the mode of procedure as well as the good faith of the tribunal, and at pp.338 and 340 Ritchie J. set out and adopted Lord Reid’s statement, supra from Ridge v. Baldwin.It might be argued that Lord Reid’s statement is an obiter dictum in that on the facts of Ridge v. Baldwin the tribunal repeated at the second hearing its original failure to observe the principles of natural justice, and the result would therefore have been the same regardless of which hearing were taken as determinative. But the same cannot be said of the Supreme Court decision in the Posluns case. There, the appellant had both proper notice and representation by counsel at the second hearing, thereby repairing the defects the tribunal might have committed at its first hearing. The Court expressly described the second hearing as a rehearing rather than an appeal, and also expressly upheld the tribunal’s decision on the basis of this rehearing, without passing judgment on the adequacy of the initial hearing. There appears to have been no express statutory power in the tribunal to re- hear matters disposed of, and in any event it is evident from the Court’s consideration that such express statutory authority is not material to its decision. Clearly, a tribunal’s power of re-hearing is to be implied in such circumstances. It accordingly appears to us that the Immigration Act 1976 must be interpreted to allow reconsideration by the Board of its decisions, at least where it subsequently recognizes that it has failed in natural justice.The Canadian jurisprudence thus recognizes a power to re-open a decision where that decision has been reached contrary to the rules of natural justice and could be treated as a nullity; or alternatively, where the first decision was not in accordance with the principles of fundamental justice as recognized in the Canadian Charter and could lead to a deprivation of life, liberty or security of the person.Moreover, in the light of the Supreme Court’s decision in Singh, supra, that the Board’s denial of an oral hearing to refugee claimants is a violation of a person’s 'right to a fair hearing in accordance with the principle of fundamental justice for the determination of his rights and obligations’ under paragraph 2(e) of the Canadian Bill of Rights [R.S.C. 1970, Appendix III] and of the right not to be deprived of 'life, liberty and security of the person ... except in accordance with the principles of fundamental justice’ under Section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act 1982, Schedule B, Canada Act 1982, 1982, c. 11 (UK)], there can be no doubt that the Board’s initial failure to grant an oral hearing constitutes adequate reason for it to grant a re-hearing.”
While recognizing the differences between s 7 of the Canadian Charter of Rights and Freedoms and s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA), we are of the view that there is no reason why the same principle should not apply in New Zealand.
FAIRNESS: ADMINISTRATIVE LAW & THE NZ BILL OF RIGHTS ACT 1990
The Terms of ReferenceWhile administrative law recognizes that a hearing does not necessarily involve an interview, the Terms of Reference specifically require that the appellant be given an opportunity to attend an interview: TR para 8(3).
Administrative law duties on decision-maker
It is a general principle of natural justice that a party to proceedings must be given notice of the date of hearing. See generally Taylor, Judicial Review (1991) 277 para 13.31.
If a hearing is offered - here by the Terms of Reference - it cannot be withdrawn: Mounga v Minister of Immigration  1 NZLR 500, 505 (Williams J).
New Zealand Bill of Rights Act 1990Breaches of the administrative law duties to hear and to give notice of the hearing bring into operation s 27(1) of the NZBORA:“27(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognized by law.”The NZBORA applies to the Authority by virtue of s 3:“3 This Bill of Rights applies only to acts done -(a) by the legislative, executive, or judicial branches of the government of New Zealand; or(b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.”Prima facie, the Terms of Reference must be interpreted in a manner consistent with s 27(1): NZBORA s 6:“6 Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.”While the Terms of Reference are not “an enactment”, we believe the principle is the same.
Where the Authority has disposed of an appeal in the absence of the appellant, it may later transpire that there has been a breach of the rules of fairness. This could occur where factors beyond the appellant’s control or responsibility have resulted in the appellant being unaware of the date of hearing. In such circumstances, the appellant has not been given an opportunity to attend the hearing and the Authority could be said to be in breach of its duties under both administrative law and the NZBORA. In most cases, however, the Authority will not on the day of the hearing be in a position to decide whether, in the particular circumstances, the rules of fairness have been breached. It has no resources to carry out an investigation into the issue. Pragmatic considerations, including the need to protect the appeal process from abuse by those who put themselves beyond the reach of service, require the appeal to be disposed of, albeit in provisional terms.
Our conclusion is reinforced by the fact that the hearing required by the Terms of Reference is one which has been lawfully conducted both in terms of the Terms of Reference and the rules of fairness. Where it does later transpire that an appellant did not receive notice of the date of hearing, there must be a very real question as to whether the Terms of Reference have been complied with. Indeed, where the appellant is unable to be contacted, it may be impossible for the Authority to comply with the requirements both to give the appellant an opportunity to attend an interview and to convey to the appellant a copy of the decision. The prohibition on the re-hearing of an appeal in TR para 5(4) is itself subject to the precondition that the decision in question must be on a matter “properly before” the Authority. If a particular matter is not properly before the Authority due to failure to observe the Terms of Reference as to the service of documents or otherwise, there is no good reason why a re-hearing should not be granted.
JURISDICTION TO RE-HEAR: CONCLUSIONOur conclusion is that the Terms of Reference, the rules of fairness, the public policy grounds and the Kensington and Chelsea principle justify a re-opening of an appeal where an appeal has been dealt with in the absence of an appellant who was unaware of the hearing.
This conclusion is consistent with Martin v Ryan  2 NZLR 209, 236 (Fisher J) where it was held that the theory of absolute nullity did not apply in New Zealand.
The course we propose to follow has the added merit of reconciling the Authority’s legal obligations to asylum seekers with the efficient and timely despatch of appeals. Appellants who either inadvertently or deliberately lose contact with the Authority will be faced with the dismissal of their appeals and this in turn will lead to the non-renewal of their temporary permits and the institution of removal proceedings by the Immigration Service. While a re-hearing can be applied for, it will require sober reflection as to whether the refugee application has intrinsic merit. For, as will be seen, the Authority proposes that on a re-hearing application, the merits of the claim to refugee status are to be examined and determined.
Having decided that the Authority has jurisdiction to re-hear an appeal which has been disposed of in the absence of an appellant unaware of the hearing, the next issue for consideration is whether in non-appearance cases a decision dismissing the appeal is to be based on a full consideration of the facts, or simply dismissed on the basis that the Authority cannot satisfy itself whether the requirements of the Convention definition are satisfied. We believe that the latter alternative is to be preferred.
NON-APPEARANCE CASES: MERITS NOT TO BE CONSIDERED
The Authority’s experience in hearing refugee cases over the past four years has led it to the conclusion that it is not realistic to make a determination as to refugee status without first interviewing the claimant and making an assessment of credibility. Frequently cases which on the papers appear “manifestly unfounded” or abusive, have turned out, upon a hearing, to be patently well-founded, see, for example, Refugee Appeal No. 36/92 Re JB (21 September 1992) 1. Conversely, cases which at first sight appear unassailably strong turn out, following a hearing, to be without substance. The duty imposed on the Authority by the Terms of Reference para 8(3) to interview an appellant is recognition of the centrality of the credibility finding. We are therefore not inclined to determine the merits of the refugee application in the absence of the appellant.
An advantage to this approach is that it will prevent unscrupulous appellants who go to ground from securing an advantage by requiring the Authority to accept a “perfect” or “boilerplate” set of facts without credibility being tested, or by requiring the Authority to apply the benefit of the doubt principle “sight unseen”.
We are therefore of the view that non-appearance cases should be dealt with quite simply by stating that in the absence of the appellant, no finding as to credibility or as to the facts can be made. Therefore, the Authority cannot satisfy itself whether the requirements of the Convention refugee definition are met. The appeal is to be dismissed. In dismissing the appeal, however, we propose mentioning that as the dismissal has occurred as a result of the non-appearance of the appellant, the Authority will look sympathetically at an application for a re-hearing.
The Authority will require a formal application for a re-hearing to be filed together with a full and cogent affidavit by the appellant setting out:
(a) The evidence on which the application is based, including the reasons for the non-appearance; and
(b) The evidence on which the refugee application is based.
The re-hearing and refugee applications will be set down for hearing at the same time. This will avoid the duplication inherent in a two-stage process in which the initial enquiry whether to grant the re-hearing application is followed by a later enquiry into the substantive merits of the claim itself.
CONCLUSIONIn accordance with the terms of this decision, we hold that in the absence of the appellant no finding as to credibility or as to the facts can be made. Therefore, the Authority cannot satisfy itself whether the requirements of the Convention definition are satisfied. The appeal is dismissed.
As this appeal has been dismissed as a result of the non-appearance of the appellant, the Authority will look sympathetically at an application for a re-hearing should the appellant still be in New Zealand and of a mind to pursue the refugee application.
“R P G Haines”
(1)”Little material change has been made to this passage in Wade, Administrative Law (7th ed 1994) 941-942.