1.0 General Pre-Hearing
1.2 Notices of appeal (from an Refugee Status Branch (RSB) decline decision) are not required to be on any particular form but must be in writing and filed within the prescribed time limits.
1.3 Submissions should have a quality of information as opposed to a quantity of information. Of course you should provide the Refugee Status Appeals Authority (RSAA) with any submissions and country information which you consider is relevant to the case. However, if one provides an enormous stack of information, unless all of it is truly relevant, one takes the risk that the most valuable points to be made will be lost in the volume. It is far better to provide five or six pages of relevant, helpful and succinct submissions than to provide forty pages of submissions which are repetitive or contain large tracts of information which are of no particular relevance. The same applies to country information. You can assume a certain amount of knowledge on the part of the Authority, particularly where the country concerned is one from which many refugee status claimants come (eg, India, China, Iran and so on). It is better to focus on the issues where the Authority is more likely to be genuinely assisted by submissions, rather than spending your time on stating the obvious. There is no need to recite the tests we apply for determination of refugee status or relocation, or to supply copies of those precedent decisions, unless there is a particular issue in the appeal which makes this especially pertinent.
1.4 However, remember if you provide material, you should cite it properly, and provide the whole article or decision (including where the information is taken from the internet). If you are only relying on a limited passage, it is helpful to highlight the passage.
1.5 You should provide all relevant material and country information in respect of your client's case and not just the material which selectively advances it. Competent counsel will, after referring to all of the relevant information on a point, seek to argue that information and decisions which are not favourable to the client's position can be distinguished, with reasons given.
1.6 Counsel cannot give evidence; the appellant must give the evidence.
1.7 It is very useful when counsel submits an updated statement from the appellant prior to the hearing. Ideally this will be put chronologically. While many appellants will have previously given statements, often soon after their arrival, it can be enormously helpful for the RSAA to have a statement, broken into numbered paragraphs, setting out the appellant's 'updated' position. The effluxion of time between the giving of an earlier statement and the RSAA hearing can mean that this is useful because, new evidence may have come to light since the earlier statement. Sometimes too, there have been various statements made in a case, and one comprehensive statement is therefore useful.
1.8 Counsel should carefully consider the content of statements to be filed. if 'new' evidence comes to light during a hearing which has not ever been previously revealed, then this can give rise to an accusation that an appellant is embellishing his or her account; thus it is important to have all the relevant information already available before the Authority prior to the hearing, as far as possible. Counsel should also appreciate, however, that because the appellant's oral evidence is very likely to be tested against any such written statements and accounts, an appellant who is not very articulate may experience difficulty in recalling the detail of an extremely comprehensive written statement. The point to be made here is that counsel should endeavor to provide a full account, covering all relevant matters, in a way which is consistent with the evidence which is likely to be given by the appellant at the hearing.
1.9 Of course any statement should be properly confirmed by the appellant, with the services of an interpreter where relevant, and signed by the appellant prior to it being submitted. Counsel can do a grave disservice to a client's case where statements (and other documents) are submitted without being properly checked (and, where appropriate, translated).
1.10 Counsel must be alert to the fact that many refugee status claimants have difficulties in articulating their accounts for many reasons, and need time given to them by their Counsel when instructions are being taken, to enable this to be done properly. Some claimants need to appreciate the independence of their counsel (from the "system") and build up a rapport before they will disclose their account. Counsel should be prepared to 'put the time in' and should not be doing the work, frankly, unless they are prepared to do so.
1.11 It is often helpful to include in your submissions a copy of a map of the places relevant to the appellant's case (even though the Authority obviously has access to maps).
1.12 Meet the time restrictions for filing submissions both before the hearing (three clear days) and after the hearing - where the filing of written submissions is allowed. In the event that an extension is sought (where good reasons exist), seek the extension before the deadline for filing submissions.
1.13 The Memorandum of submissions filed on behalf of an appellant should be filed in triplicate.
1.14 Prepare your client for the hearing - the experience of appearing before the Authority is likely to be a stressful one for appellants and you can assist yours by preparing them for it. Give them a realistic idea of what to expect including the likely length of the hearing. It is helpful to tell your client that the Authority is likely to ask them many questions about a number of matters, relating to issues which they are likely to have already covered in previous statements and interviews. This happens in all hearings, as the Authority needs to understand the case as best it can and also to test credibility, which is an important part of its determination. An RSAA hearing is likely to be the most thorough enquiry to which a refugee status claimant will be subjected. The appellant will also be given an opportunity at the end of the hearing to add anything that s/he considers is relevant but which has not been covered.
1.15 While the appellant should be advised that material credibility concerns which the Authority has will be put to him or her for comment, on the other hand appellants appearing before the RSAA are not to be regarded as 'sitting an examination' and should be advised to simply answer questions in a full and frank manner. It would also be helpful to advise your client, too, that if they do not know the answer to a question asked they should simply say so, and if they do not understand what is being asked they should say so immediately, so that the matter can be gone over again.
1.16 Appellants may seek to have a support person/s present at the RSAA hearing (unless that person is a witness), with the permission of the Chairperson of the hearing.
1.17 You should stress to appellants that everything about the case is confidential.
1.18 Interpreters - the RSAA has available to it suitably qualified interpreters. Interpreters will be arranged for hearings by the Secretariat of the RSAA. Interpreters are neutral, they neither 'favour' the appellant nor the RSAA. They are bound by the confidentiality obligation. They are obliged to interpret everything that is said. Appellants should not seek advice from an interpreter, but from their representative, if need be.
1.19 As counsel if you find there is some legitimate need to use the services of the interpreter during the hearing (and this would only be in a very unusual situation) you should raise the issue with the Authority and ask whether the interpreter can be made available for that purpose.
1.20 You should advise the RSAA well in advance of the hearing as to any special requirements in terms of interpreters, of which you are aware. For example, you may know your client will not understand a Mandarin or Cantonese speaking interpreter but needs a Tai Shan speaking interpreter, or you may consider that your client (say, a woman) will not disclose intimate and relevant details of her case unless she has a female interpreter present. Appropriate arrangements can and will be made wherever possible. Frequently hearings are delayed because of such matters being raised only on the day of hearing or with little notice, when this could easily have been avoided.
1.21 Make up of Authority panel - just as counsel can appropriately suggest to the Secretariat that a male or female interpreter be used, similarly it can be appropriately suggested that (a) female or male member/s hear the case itself. Some hearings involve appellants who, because of the nature of their claim will find it easier to disclose details of the case if the panel is male, or female.
1.22 There will be occasions when related appellants (usually related familially) will be appearing before the Authority in respect of their own individual appeals. The Authority will aim to have related appeals dealt with by the same panel of members as far as practicable. Counsel can assist by notifying the Authority when he or she is aware of such a situation.
1.23 Corroborative evidence - counsel should be alert to the issue of corroborative evidence which might be available to support a client's account of past treatment or events. This could include medical/dental records or x-rays, letters, newspaper articles of particular events, copies of arrest warrants/court documents and so on. On occasion, such evidence is lacking where it could have easily been obtained because counsel has not ever considered the issue. The fact that such evidence has not been obtained in circumstances where it might have been expected could even, prima facie, actually detract from the case. In other words, where counsel does not pursue the issue of corroborative evidence in an obvious situation, this can not only mean missing an opportunity to assist the case, it is also potentially harming the case (though it is likely that the Authority will raise the issue during the hearing to ascertain why it is the case). It is not helpful when the Authority asks of an appellant why, for example, they have not brought with them or ever produced some potentially valuable piece of information, to be told that no-one ever asked them about the matter before.
1.24 It can also be helpful where attempts to obtain corroborative evidence have not produced any results, to outline such attempts, as the fact that some effort has been made in this regard may, in itself, be corroborative (depending on the case).
1.25 However, some 'corroborative' evidence is not as helpful as it might be, eg, medical reports which outline in detail what the doctor understands the appellant's whole case to be about (which is not within her or her domain) rather than focusing on the medical issues (which are within his/her domain). Counsel would be advised to ask that outside professionals assist by confining themselves to their field of expertise. It is helpful for the doctor to provide a description of the relevant physical condition of the appellant, for example, say, a scar and then give an opinion as to whether that scar is consistent with, for example, a liquid acid being poured over skin (where that is the appellant's claim).
1.26 In some instances having a competently prepared psychological (and/or psychiatric) assessment available can also be useful to an appellant's case. There is a tendency by some representatives, however, to indiscriminately use such evidence on behalf of appellants. By all means submit such evidence if it has relevance, for example, where past trauma has impacted on an appellant such that his or her demeanour and presentation might otherwise be possibly viewed as vague or evasive but can, rather, be attributed to indicate that past trauma. You should ensure that any report you submit sets out the sources of information used by the psychologist/psychiatrist, and clearly indicates over what period of time any assessment has been conducted.
1.27 Any evidence produced which is not in English should be accompanied by a translation. The translation should be carried out by an independent professional translator who then certifies that document accordingly. However if this is not possible, any competent translation will be acceptable, but the details of the translator should be clear.
1.28 You should ensure that your client brings with him or her to the hearing all relevant documents and papers (originals, where possible). Passports, particularly, should always be brought to any hearing where they are available.
1.29 Witnesses can in some cases give the best corroborative evidence, though often they can be overlooked. Counsel should check whether, say a wife or sibling who might be here in New Zealand is available in an appropriate case, to give evidence. In some instances the Authority itself has inquired into such matters and has even come across cases where a spouse whom counsel had overlooked actually had a stronger case than the originating applicant. It is up to counsel to consider these issues, take instructions, and to make available the witnesses who are potentially relevant. It may be that during the hearing itself that the Authority will give an indication as to the appropriateness of having the witnesses called, but it is important that counsel is prepared accordingly. Briefs of evidence for any witnesses to be called should be available.
applications - adjournments are unlikely to be granted unless there are
compelling reasons. The fact that a grant of legal aid has not been
confirmed is not regarded as a solely acceptable reason for an adjournment.
Where medical grounds exist, medical certificates must be presented, specifying:
See Minute of the Authority
in Refugee Appeal No. 2561/95 (10 April 1996); RSAA Practice Note
1/99 paras 10.12.
2.2 An appellant has a de novo hearing before the Authority and does not need to prove that the RSB decision to decline the appellant's case was wrong. The Authority determines for itself whether the appellant is or is not a refugee, as at the date of determination. The Authority is inquisitorial in its function, rather than adversarial - in fact in the vast majority of cases, one of the parties, the RSB, does not appear. However, it should be appreciated that there is an onus on the refugee claimant to prove his/her case (see Refugee Appeal No. 523/92 Re RS (17 March 1995)).
2.3 A brief overview or summary of your client's case can be useful by way of an opening, however most points should have already been covered in written submissions and it is not generally helpful to go over what has already been put forward, especially in any detail.
2.4 You should refrain from giving the RSAA your opinion as to how credible you find your client to be. That is not relevant, nor appropriate. However, counsel is able to draw the Authority's attention to matters which in counsel's submission, may tend to advance the appellant's case in terms of credibility.
2.5 The Authority members attempt to maintain a verbatim record of the appellant's evidence and counsel is well advised to do likewise. This is useful, for example, for when you are re-examining the appellant, preparing submissions, or in case there is an issue as to what has been said (noting however, that a tape recording of the proceedings is also made - generally unavailable except for the purposes of proceedings for Judicial Review).
2.6 You should refrain from interrupting the hearing while it is in progress unless it is some important point of clarification or something of a similar nature. Many matters are more appropriately dealt with at re-examination, in any event.
2.7 Re-examination - when re-examining your client after the Authority member/s have finished their questions, ask the question of your client in the first person, not in the third person through the interpreter, eg, "What made you leave your house that day?" rather than (to the interpreter) "Can you ask him what made him leave his house that day."
not ask leading questions - apart from anything else the amount of weight
which can be given to an answer following a leading question will often
be far less than if the question was an open ended question, eg, "Did you
feel scared when you heard the authorities had visited your home?" (leading)
as opposed to "What thoughts did you have when you learnt that the authorities
had visited your home?" (open ended question). Similarly questions
which are overly speculative do not tend to be very helpful "What do you
think your mother would have been thinking when she wrote you that letter?"
I would like to acknowledge the valuable input of my RSAA colleagues in terms of this paper, and also some useful material sent to me by David Ryken, Barrister.