This Practice Note consolidates
and supersedes all previous Practice Notes and is effective from 23 February
2004. It is to be read subject to the Immigration Act 1987 and the
Immigration (Refugee Processing) Regulations 1999 (SR1999/285).
INTRODUCTION
PROCEDURE ON APPEAL
Responsibility to establish claim
Hearing
de novo
Confidentiality
Hearings
Informal
Hearings Primarily Inquisitorial
Interpreters
Observers
Notice
of Appeal
Address of Correspondence
PROVISION OF NZIS FILE
SUBMISSIONS
EVIDENCE
Oaths and Affirmations
Supporting
Evidence
Post-Hearing
Evidence
POWER TO ISSUE A SUMMONS
OPPORTUNITY TO ATTEND AN INTERVIEW
ORDER OF HEARING
SITTING HOURS
GENDER ISSUES
FAMILY ISSUES
SPECIAL NEEDS OF APPELLANTS
ADJOURNMENTS
Medical
Grounds
APPLICATIONS FOR LEAVE
TO APPEAL OUT OF TIME
WITHDRAWAL OF APPEAL
APPEALS AGAINST DETERMINATIONS
INVOLVING LOSS OF REFUGEE STATUS
APPLICATIONS CONCERNING
LOSS OF REFUGEE STATUS
REPRESENTATION
PUBLICATION ENQUIRIES
PUBLICATION OF DECISIONS
COMPLAINTS
ANNUAL REPORT
[1.1]
The Refugee Status Appeals Authority (“the Authority”) is an independent
Tribunal and is established under the Immigration Act 1987 (“the Act”), s
129N. The main functions of the Authority are:
(1) To hear appeals brought under s 129O of the Act from determinations by refugee status officers not to recognise a claimant as a refugee; and
(2) To make determinations in relation to a person's refugee status on applications made by refugee status officers under s 129L(1)(f) of the Act.
[1.2] Pursuant to Schedule 3C, cl 7 of the Immigration Act 1987, the Authority has the powers of a Commission of Inquiry under the Commissions of Inquiry Act 1908 within the scope of its jurisdiction, and, subject to Part VIA of the Immigration Act 1987 and any regulations made under it, all the provisions of the Commissions of Inquiry Act 1908, except ss 11 and 12 (which relate to costs) apply to the Authority as if it were a Commission of Inquiry.
[1.3] Schedule 3C, cl 8(1) of the Immigration Act 1987 further provides that the procedure of the Authority is to be such as the Authority thinks fit.
[1.4]
The following information on the practice and procedure adopted by the Authority
is designed to provide guidance to members of the legal profession, consultants,
appellants appearing in person and to refugee status officers.
Responsibility to Establish Claim
[2.1] As provided by s 129P(1) of the Act, it is the responsibility of an appellant to establish the claim to refugee status, and the appellant must also ensure that all information, evidence, and submissions that the appellant wishes to have considered in support of the appeal are provided to the Authority (in the English language) before it makes its decision on the appeal.
[2.2] Pursuant to s129P(2) of the Act, the Authority may seek information from any source, but is not obliged to seek any information, evidence or submissions further to that provided by the appellant and may determine the appeal on the basis of the information, evidence and submissions provided by the appellant.
Hearing de novo
[3.1] All appeals before the Authority proceed by
way of hearing (either by interview or on the papers) de novo, and all issues
of law, fact and credibility are at large. The Authority will make
a decision on the facts as they stand as at the date of determination of
the appeal and is not confined to the facts as they stood (or as they were
presented) at the initial hearing before the refugee status officer.
[4.1] As provided by s 129T of the Act, proceedings before the Authority are confidential. The statutory obligation of confidentiality applies to all information given in support of the refugee application. The obligation of confidentiality extends to all those attending the hearing and those involved in the administration of the Immigration Act 1987.
[4.2] No persons other than the appellant, his or her representative and the interpreter will be entitled to be present at any hearing without the express permission of the Chairperson presiding at the hearing. The Chairperson will ascertain the views of the appellant before any decision is made. (See also para. 8.1)
[4.3] Except in rare circumstances, a depersonalised research copy of each Authority decision will be published in addition to the confidential, personalised version of the decision released to the appellant. The research copy will be prepared solely for research purposes. It will not contain the name of the appellant or other identifiers. The published research copy decisions and/or abstracts will be available for research purposes on the Authority's website http:\\www.nzrefugeeappeals.govt.nz, at the Refugee Status Library, at the Auckland District Law Society Library, and at the Davis Law Library of the Faculty of Law, University of Auckland.
[4.4] All Authority hearings conducted by interview are recorded. A copy of the audio-tape can be obtained, at the appropriate charge, from the Secretariat by parties who have a right to them. The Authority is not required to provide a written transcript of the hearing, and will not do so except at the express direction of the Chair.
[5.1] Authority hearings are procedurally informal. The Authority may be addressed as “Mr Chairman/Madam Chair and members of the Authority”. Individual members may be addressed by name. Appellants, witnesses and representatives are requested to remain seated while addressing the Authority.
Hearings Primarily Inquisitorial
[6.1] Hearings before the Authority will, unless otherwise authorised by the presiding member, be conducted in an investigative or inquisitorial manner.
[7.1] Independent interpreters will be provided solely for the purpose of the hearing. Representatives and the appellant must ensure, at the time of receiving notice of a hearing, that the Secretariat is advised of the appellant's interpreting needs, including language, dialect and where appropriate, gender and age. The Secretariat will use its best endeavours to meet those needs.
[7.2] Appellants shall not make direct or indirect contact with the interpreter used in their appeal hearing at any time outside the hearing except with the express consent of the presiding member.
[8.1]
Hearings are held in private. However the following allowances are
made:
[8.2] In all cases, attendees are bound by the obligation of confidentiality and will be required to give a written undertaking to that effect.
[9.1] The notice of appeal is not required to be in any particular form but it must be in writing and delivered within the time limits prescribed by s 129O of the Act. The notice of appeal must also comply with the Immigration (Refugee Processing) Regulations 1999 (SR1999/285), Reg 14. In particular, the notice of appeal must be lodged with the Authority at the Authority's address (being PO Box 90251, Auckland Mail Centre, Auckland), or filed at its street address (Level 22, 120 Albert Street, Auckland).
[10.1] In accordance with s 129P(3) of the Act and Reg 14(3) of the Immigration (Refugee Processing) Regulations 1999, a notice of appeal must contain a current address in New Zealand to which communications relating to the appeal may be sent. This may be the address of the appellant's representative, and must include the representative's facsimile number where appropriate. The notice must also include the appellant's current residential address.
[10.2] Appellants must advise the Authority of any change of address and of any change to the facsimile number, where appropriate. The Authority is entitled to rely on the most recent address provided to it by the appellant.
[11.1] The Secretariat will release a copy of the New Zealand Immigration Service (“NZIS”) file to the appellant as made available to the Authority at least five working days in advance of the scheduled hearing date. See further the Immigration (Refugee Processing) Regulations 1999, Reg 15.
[11.2] Any formal request received by the Secretariat for release of the NZIS file under the Official Information Act 1982 and/or the Privacy Act 1993 will be forwarded to the NZIS for action, together with their file.
[11.3]
It should be noted that the Authority, in relation to its judicial functions,
is not subject to the requirements of the Official Information Act 1982 or
of the Privacy Act 1993. See s 2(6)(b) of the Official Information
Act 1982 and the definition of “agency” in s 2(1) of the Privacy Act
1993, para (b)(viii).
[12.1]
Subject to any over-riding ruling of the presiding member at any hearing:
(a) Submissions, supporting evidence and any new evidence relating to the appellant's appeal are to be filed (three copies) with the Authority at least three clear working days before the hearing date;
(b) If the appellant, or his or her representative, wishes to call witnesses at the hearing to give oral evidence, a written statement or outline of the proposed evidence must also be filed with the Authority (three copies) at least three clear working days before the hearing date;
(c) All written material intended to be produced at the hearing which is not in the English language must be provided (three copies) in the original language together with a translation (three copies) by a suitably qualified translator at least three clear working days prior to the hearing date;
(d) The Authority shall also be given details of the appellant's family, including details of all family members in New Zealand and their current status and whereabouts;
(e) Submissions presented by the appellant or his/her representative may address both the relevant legal issues, and the facts giving rise to the claim. However, such submissions should not include evidence which should instead be tendered in the form of a statement.
[13.1] Schedule 3C, cl 9(1) of the Act provides that the Authority is not bound by any rules of evidence, but may inform itself in such a manner as it thinks fit.
[14.1] Appellants and witnesses will be required to make an affirmation, or if preferred, to take an oath, before giving evidence before the Authority.
[14.2] Interpreters will also be required to make an affirmation, or if preferred to take an oath, before interpreting before the Authority.
[15.1] The appellant, or his or her representative, should tender all available evidence in support of the appellant's claim. This may include personal documentation, family letters, affidavits, court documentation and country information from recognised sources.
[16.1]
The Authority will receive new evidence at any time prior to the date
of publication of the Authority's decision. However, it is stipulated
by s 129Q(5) of the Immigration Act 1987 that the decision of the Authority
is final once notified to the appellant.
[17.1] The Authority has power under Schedule 3C, cl 7 of the Immigration Act 1987 and s 4D of the Commissions of Inquiry Act 1908 either of its own motion, or on application, to issue in writing a summons requiring any person to attend at the time and place specified in the summons and to give evidence, and to produce any papers, documents, records or things in that person's possession or under that person's control that are relevant to the subject of the inquiry before the Authority.
[17.2] The effect of s 8(2) of the Commissions of Inquiry Act 1908 is that the person requiring the evidence of the witness is liable for payment of the witness's fees, allowances and expenses calculated in accordance with the Witnesses and Interpreters Fees Regulations 1974 (SR1974/124). On making application for the issue of a witness summons, the person requiring the evidence of the witness must deposit with the Authority such sums as the Authority thinks sufficient.
[17.3] To enable the Authority to properly exercise its discretion under s 4D of the Commissions of Inquiry Act 1908 an application for the issue of a witness summons must be in writing and, unless the Authority otherwise directs, be filed no less than 20 clear working days before the scheduled hearing date, supported by submissions and evidence establishing the nature of the intended evidence to be given by the witness, the relevance of that evidence, the correspondence or other communications which have passed between the intended witness and the person requiring the evidence of the witness, including the grounds of the refusal to attend (if any). The Authority must also be provided with the full name, residential and work address and other relevant details of the person sought to be summoned. Where it is intended that the witness produce any papers, documents, records or things in that person's possession or under that person's control that are relevant to the subject of the inquiry before the Authority, full particulars of the papers, documents, records or things must also be given.
[17.4]
The application must also be support by:
(a) Information sufficient to allow an accurate calculation of the witness's fees, allowances and travelling expenses. That information should include whether the witness is attending as an expert, the length of time the witness is likely to be absent from his or her usual place of residence or business, whether the witness will suffer a loss of earnings and the fees, allowances and travelling expenses calculated in accordance with Parts A, B and C of the Schedule to the Witnesses and Interpreters Fees Regulations 1974.
(b) Submissions on the amount to be fixed under s 7(2) of the Commissions of Inquiry Act 1908 and on the sum to be deposited with the Authority under s 8(2)(b) of the Act.
[17.5] As the Authority is under a duty to act fairly, it may, in appropriate cases, direct that the intended witness be heard on the application for the witness summons.
[17.6] As the Authority has both a duty and a power to prevent an abuse of its own processes it will set aside a summons where it is satisfied that it is proper to do so. Without limiting the circumstances in which this power will be exercised, the Authority will consider setting aside a summons where the intended witness is unable to give any relevant and admissible evidence; where there has been an abuse of process; where the summons was irregularly obtained or issued; where the summons has been taken out for a collateral motive or is oppressive.
[17.7]
Where a witness summons has been set aside by the Authority but it later
becomes apparent that the evidence of the intended witness is in fact required,
further application for the issue of a summons may be made.
[18.1]
Section 129P of the Immigration Act 1987 provides that the Authority may
dispense with an interview of the appellant only if both:
(a) The appellant has been interviewed by a refugee status officer at first instance or, having been given an opportunity to be interviewed, has failed to take that opportunity; and
(b) The Authority considers that the appeal or other contention of the person affected is prima facie manifestly unfounded or clearly abusive.
[18.2]
However, the Authority may also determine the appeal without an interview
if the appellant fails without reasonable excuse to attend or participate
in a notified interview with the Authority.
[19.1]
In general, all hearings, when conducted by interview, will proceed as follows:
[20.1]
The sitting hours of the Authority will normally be from 10.00am until 1.00pm
and from 2.00pm until 5.00pm, subject to adjustment by the Chairperson or
Secretariat. A short break will usually be taken at 11.30am and at
3.30pm to allow appropriate rest for appellants and interpreters.
[21.1] The appellant, counsel or representative should alert the Authority well in advance of the hearing to any specific gender-related factors so that appropriate arrangements can be made.
[21.2] An interpreter of the appropriate gender will, where possible, be used at a hearing where a claim involves allegations of sexual violence or abuse or similarly sensitive issues.
[21.3]
When requested, the Authority will endeavour to ensure that women appellants
are heard by a panel of Authority members comprising at least one woman member.
[22.1] Where refugee claims have been lodged contemporaneously by more than one family member, or closely associated claimants, the Authority will, in most situations, endeavour to hear all of the appeals together, where it is practicable to do so.
[22.2] Appellants and representatives should advise the Authority where several family members have refugee applications or appeals pending, or where they represent appellants whose refugee claims are based on the same or substantially similar grounds, and advise the Authority of any objections they may have to the appeals being heard together.
[22.3] Where a minor (being a dependent child under 17 years of age and being unmarried) appeals to the Authority together with one or both of that child's parents, s 141B(1) and (2) of the Immigration Act 1987 require that the minor's interests are to be represented by any such parent and the parent is the responsible adult for the minor for the purposes of that section. In all other circumstances, the Authority will nominate a responsible adult in accordance with the provisions of s 141B of the Act.
[22.4] The Authority will, as far as practicable, offer an opportunity to the minor to express his or her view either personally or through the responsible adult, and place such weight on those views as it deems appropriate, having regard to the maturity and understanding of the minor.
[22.5]
Before hearing the evidence of a minor, the Authority will determine whether
the minor understands his or her obligations to tell the truth and whether
the minor is capable of communicating evidence.
[23.1]
The Authority endeavours to be sensitive to special needs of particular appellants
and expects to be assisted by advance notice of any such special needs.
[24.1] The granting of an adjournment of a fixed hearing is a matter involving the exercise of the Authority's discretion. An adjournment will rarely be granted without strong and cogently presented grounds. As much notice as possible of a request for an adjournment must be given in writing to the Secretariat, along with the earliest possible suggested alternative fixture date.
[25.1]
A medical certificate presented as the basis for an adjournment request must
meet minimum requirements before it will be considered as the basis for the
granting of an adjournment. In particular, the certificate must specify:
[26.1] Appeals must be lodged within the prescribed time limits as set out in s 129O(3) of the Immigration Act 1987. The Authority has jurisdiction under s 129O(4) of the Act to extend the time for lodging an appeal where it is satisfied that special circumstances warrant such an extension.
[26.2] Where an intended appeal has been received out of time, the intending appellant will be given seven days within which to file a formal application for leave to appeal out of time.
[26.3] The application for leave to appeal out of time must be supported by an affidavit by the intending appellant setting out the circumstances as to why the time limit was not complied with and identifying the special circumstances relied upon. The submissions and affidavit should also set out the facts of the intending appellant's refugee claim and the reason why it is considered that the intending appellant has a bona fide claim to refugee status.
[26.4] Applications for leave to appeal out of time may be dealt with by the Authority either on the papers or by setting the matter down for an oral hearing to consider the application for leave. Where the matter is set down, the Authority will usually hear the application for leave and then, if appropriate, proceed immediately with the hearing of the appeal itself. Intending appellants and their representatives should therefore be ready to proceed with the hearing of the full appeal immediately after the hearing of the leave application.
[27.1] If an appellant leaves New Zealand, s 129V of the Act requires that his or her appeal is to be treated as withdrawn.
[27.2]
As provided in Reg 21 of the Immigration (Refugee Processing) Regulations
1999, an appellant may at any time withdraw an appeal by giving written notice
to the Authority. That notice should be signed by the appellant.
[28.1] The Authority has jurisdiction pursuant to s 129O(2) of the Act to hear an appeal against a determination by a refugee status officer involving the loss of refugee status under s 129L(1)(a) to (c) of the Act as well as appeals against determinations of the kind described in s 129L(1)(d) and (e).
[28.2] Upon receipt of any such appeal, the Authority will, at a first or subsequent hearing, issue directions for the purpose of ensuring that the appeal is determined in a fair and expeditious manner.
[28.3]
It is anticipated that, in respect of any such appeal, the Refugee Status
Branch will be represented at the hearing before the Authority.
[29.1]
The Authority has jurisdiction under s 129R of the Act to determine applications
made by refugee status officers under s 129L(1)(f) as to whether:
(a) The Refugee Convention has ceased to apply, in terms of Article 1C, to a person who has previously been recognised as a refugee by the Authority;
(b) The Authority should cease to recognise a person as a refugee in any case where the earlier recognition by the Authority of the person as a refugee may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information;
(c) Any of Articles 1D, 1E and 1F of the Convention should be applied to exclude a person from the protection of the Convention, in any case where the Authority has recognised the person as a refugee and the matters dealt with in those Articles may not have been able to be properly considered by the Authority for any reason, including by reason of fraud, forgery, false or misleading representation, or concealment of relevant information.
[29.2] Any such application is required by the Immigration (Refugee Processing) Regulations 1999, Reg 16 to be made by a refugee status officer in a form approved by the Minister of Immigration and should include particulars and evidence in support of the application.
[29.3] Where the application for loss of refugee status is accepted for consideration under Reg 17, the Authority will serve on the person to whom the application relates a notice under Reg 18, which notice will give advice of the first hearing date.
[29.4] The person to whom the application relates (the refugee respondent) has the right to request and be granted an interview and to provide written submissions in relation to the determination of the application. See the Immigration (Refugee Processing) Regulations 1999, Reg 18(2)(b)(iii).
[29.5] Where such a request is made, the request must set out the response to the application, including a statement of the grounds of the opposition to the application and be supported by the evidence upon which the refugee respondent will rely.
[29.6]
Where such request is made, the Authority will, at the first or subsequent
hearing, give directions for the purpose of ensuring that the application
for loss of refugee status is determined in a fair and expeditious manner.
Such directions may include (but are not limited to):
(a) Setting a timetable for the filing by the refugee respondent of a further written response to the application including a statement of the grounds of opposition to the application and for the filing by that person of evidence;
(b) The filing by the refugee status officer of a reply, including evidence in reply;
(c) The filing of written submissions;
(d) Setting a date for the hearing of the application.
[29.7] It is anticipated that on any such application the refugee status officer will appear in person or through counsel to present the application.
[29.8]
In summary, where an application seeking loss of refugee status is accepted
by the Authority for consideration, the application will be given an initial
date of hearing (the first call date). At the first call date the Authority
will determine:
(a) Whether the terms of Reg 18 of the Immigration (Refugee Processing) Regulations 1999 have been complied with;
(b) Whether the person to whom the application relates has requested an interview and an opportunity to provide written submissions in relation to the determination of the application;
(c) Whether directions should be given for the purpose of ensuring that the application for loss of refugee status is determined in a fair and expeditious manner.
[30.1] Appellants may be represented by a lawyer or other representative either at their own expense or, if they so qualify, on legal aid.
[30.2]
Appellants who have applied for legal aid but whose applications have not
been granted, stand in the same position as all other appellants before the
Authority. A hearing will not be delayed solely on the grounds that
a legal aid application has not been determined.
[31.1] >From time to time, appellants, representatives and the New Zealand Immigration Service (“NZIS”) approach the Secretariat, Chairperson or other members with an enquiry as to the likely date of publication of a decision.
[31.2] For reasons of confidentiality, only the appellant, the representative and the NZIS will be given a response to such requests.
[31.3] All requests must be in writing, addressed to the Registrar and must set out the appellant's name, number of the appeal and hearing date, plus the names (if known) of the members of the Authority who heard the appeal.
[31.4] If the enquiry includes a request for urgency, reasons why urgency is requested should be included.
[31.5] The Registrar, following consultation with the Authority member(s) involved, will endeavour to respond to the enquiry within two working days from the time of receipt of the request. Responses will be in writing and will not be by telephone.
[31.6] The response to an enquiry will, in all cases, be sent to both the NZIS and to the appellant at the same time.
[31.7] The response will be a “best estimate only”, and it is expected that only one such request will be made for each appeal.
[31.8] No indication whatsoever of the likely outcome of the appeal will be given.
[31.9]
No enquiries from the media or representatives not on the record as representing
an appellant will be responded to, beyond an acknowledgement stating that
all appeals are confidential and the Authority cannot confirm that an appeal
has been received.
[32.1] A confidential, personalised version of each decision will be published to the appellant through his or her representative (if any) and to the NZIS.
[32.2]
Except in rare circumstances, a depersonalised research copy of each Authority
decision will be published in addition to the confidential, personalised
version of the decision released to the appellant. (See further para.
4.3 above)
[33.1] Any person who wishes to make a complaint against any member of the Authority may do so in writing to the Chairperson. The complaint should give details of the matter complained of and provide the name and address of the person making it. The Authority will not deal with an anonymous complaint. Complaints against the Chairperson should be addressed to the Deputy Chairperson or Minister of Immigration.
[33.2]
Any person who wishes to make a complaint against any officer of the Secretariat
of the Authority may do so in writing to the Registrar. The complaint
should give details of the matter complained of and provide the name and
address of the person making it. The Registrar will not deal with an
anonymous complaint.
[34.1] Pursuant to Schedule 3C, cl 11 of the Immigration Act 1987, at the conclusion of each financial year the Chairperson of the Authority will provide an annual report to the Minister of Immigration on the exercise of its functions in respect of that financial year.
Dated this 23rd day of
February 2004
”DJ Plunkett”
....................................................
[D J Plunkett]
Acting Chairperson
Refugee Status Appeals Authority