REFUGEE STATUS
APPEALS AUTHORITY
PRACTICE NOTE
1/2008
11 September 2008
This
Practice Note consolidates and supersedes all previous Practice Notes
and is effective from 11 September 2008. It is to be read subject to
the Immigration Act 1987 and the Immigration (Refugee Processing)
Regulations 1999 (SR1999/285).
INDEX
INTRODUCTION
PROCEDURE ON APPEAL
Responsibility to
establish claim
Hearing de novo
Confidentiality
Hearings Informal
Hearings Primarily
Inquisitorial
Interpreters
Observers
Notice of Appeal
Address for Correspondence
PROVISION OF DOL 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
APPELLANTS WHO ARE IN CUSTODY
ADJOURNMENTS
Medical Grounds
APPLICATIONS FOR
LEAVE TO APPEAL OUT OF TIME
WITHDRAWAL OF APPEAL
APPEAL AGAINST
DETERMINATIONS INVOLVING LOSS OF REFUGEE STATUS AND OTHER MATTERS
APPLICATIONS
CONCERNING LOSS OF REFUGEE STATUS
REPRESENTATION
PUBLICATION ENQUIRIES
PUBLICATION OF DECISIONS
RETURN OF DOCUMENTS
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:
(a) 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
(b) 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] 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.
[1.5] The word “appellant” used in this practice note includes a
respondent to an application to cancel refugee status (refer [30.1] –
[30.5]) as context requires.
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.
Confidentiality
[4.1] As provided by s 129T of the Act, proceedings before the
Authority are confidential except to the extent provided by New Zealand
law. This statutory obligation of confidentiality applies to all
information given in support of the refugee application. This
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 presiding member at the hearing.
The presiding member will ascertain the views of the appellant before
any decision is made. (See also para 8.1 below.)
[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. (See further para 33.3 below.)
[4.4] All Authority hearings are recorded. A copy of the
recording 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 Chairperson of the
Authority.
Hearings
Informal
[5.1] Authority hearings are procedurally informal. The Authority may
be addressed as “the Authority”. Individual members may be addressed as
sir, madam, or 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.
Interpreters
[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.
Observers
[8.1] Hearings are held in private. However the following allowances
are made:
(a) Custody officers escorting an appellant in custody will be expected
to be present during the hearing but will not be allowed to take part
in the proceedings;
(b) An appellant may, with the leave of the presiding member, have a
friend or relative attend the hearing to observe. Such person will not,
without leave, be allowed to take part in the proceedings;
(c) A UNHCR representative may attend to observe any hearing at any
time;
(d) A refugee status officer or other officers of the Department of
Labour who wish to observe a hearing may do so with the leave of the
presiding member. Such person will not, without leave, be allowed to
take part in the proceedings; and
(e) From time to time other persons (e.g., Judges or tribunal members
from similar overseas tribunals, staff undergoing training, law
students) may be invited to observe a hearing. In these cases the
appellant’s consent will be sought prior to the commencement of the
hearing. Such persons will not be allowed to take part in the
proceedings.
[8.2] In all cases, attendees are bound by the obligation of
confidentiality as per para 4.1 and will be required to give a written
undertaking to that effect. The presiding member may withdraw leave for
an observer at any time.
Notice
of Appeal
[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, Victoria Street West, Auckland 1142), or filed at its street
address (Level 22, 120 Albert Street, Auckland).
Address
for Correspondence
[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 in writing of any change of
address or email address and of any change to their 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 Department of Labour
(“DOL”) 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 DOL file under the Official Information Act 1982 and/or the Privacy
Act 1993 will be forwarded to the DOL for action, together with the DOL
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 overriding 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; and
(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
for adoption at the hearing.
[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.
Oaths and Affirmations
[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.
Supporting Evidence
[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, email communications,
audiotape, videotape and dvd recordings, affidavits, court
documentation and country information from recognised sources.
[15.2] Any material sourced from the Internet must
have a complete and accurate URL and must indicate:
(a) the date the material was accessed; and
(b) the name of the website from which it was
obtained.
Post-Hearing Evidence
[16.1] While the primary objective of the Authority is always, in the
interests of fairness, to deal with all relevant evidence and issues
during the oral interview when the appellant is present, the Authority
will receive new evidence at any time prior to the date of notification
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 supported 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.
OPPORTUNITY
TO ATTEND AN INTERVIEW
[18.1]
Save as provided in [18.2] and [18.3], the Authority will provide
appellants with an opportunity to attend an interview in accord with
Reg 15 and Reg 19 of the Immigration (Refugee Processing) Regulations
1999.
[18.2] 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.
[18.3] 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 (apart from cancellation appeals and
applications), when conducted by interview, will proceed as follows:
(a) opening introduction and explanation by presiding member;
(b) opening submissions by counsel, a representative or the appellant
personally;
(c) the appellant will then be heard and questioned by the members of
the Authority;
(d) the appellant's counsel or representative will be offered the
opportunity to re-examine the appellant;
(e) any witnesses will then be heard and questioned;
(f) the appellant and/or counsel or representative will have the
opportunity to make final submissions on the appeal;
(g) the appellant or counsel/representative may make a request to the
Authority, or be requested by the presiding member, to present
additional submissions where relevant and appropriate; and
(h) the Authority will reserve its decision and deliver a written
decision with reasons as soon as practicable. The decision will advise
whether refugee status is granted or declined.
[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
presiding member 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 where
possible.
[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 where
possible that that appellants are heard by a panel of Authority members
comprising at least one of the same gender as the appellant.
[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
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.
SPECIAL
NEEDS OF APPELLANTS
[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.
APPELLANTS
WHO ARE IN CUSTODY
[24.1] Where an appellant who is held in custody by the Department of
Corrections is brought before the Authority he/she remains in the
custody and control of the Department of Corrections at all
times. For the purpose of this practice note, such appellants
will be referred to as “custody appellants”.
[24.2] A custody appellant is brought before the Authority solely for
the purpose of his/her appeal and is brought to the Authority offices
under restricted security conditions outlined in [24.3] – [24.7] below.
[24.3] Custody appellants shall not communicate, in person, by
telephone or by any other means, with anyone while attending any
hearing before the Authority, including friends, family and witnesses,
with the exception of the following persons:
(a) Members of the Authority;
(b) Staff members of the Authority’s secretariat;
(c) Department of Corrections escort officers;
(d) The appellant’s representative;
(e) The Authority’s interpreter, strictly in accordance with the rules
set down in [7.1] and [7.2];
(f) A professional interpreter engaged by the appellant’s
representative for the purpose of taking instructions and giving
advice; and
(g) Any other person with whom the Authority directs the appellant may
communicate.
[24.4] Custody appellants shall not receive any item or items
whatsoever from any person with the exception of items/material
relevant to their appeal or other legal matters provided by:
(a) Members of the Authority;
(b) Staff members of the Authority’s secretariat;
(c) The appellant’s representative; and
(d) Any other person whom the Authority directs may provide
items/material to the appellant.
[24.5] To the greatest extent possible, but subject to security
requirements determined by the Department of Corrections escort
officers, a custody appellant will be able to communicate in private
with his/her representative. A room, known as the “counsel room”, will
be available for this purpose and if practicable can also be used as a
prayer room.
[24.6] Generally, when not participating in his/her hearing, or
communicating with his/her representative in the counsel room, a
custody appellant shall remain in a room set aside for custody
appellants and Department of Corrections escort officers, known as the
custody room.
[24.7] The secretariat of the Authority will ensure that custody
appellants and the Department of Corrections escort officers are
provided with lunch and refreshments. The Department of
Corrections shall advise the secretariat of any dietary, medical or
religious considerations relevant to the provision of lunch and
refreshments.
[24.8] In the event of building evacuation custody appellants and their
escorts will act on the directions of the fire warden however
responsibility for the security of an appellant will remain the
preserve of the Corrections escort officers at all times.
[24.9] Appellants who are detained at the Mangere Accommodation Centre
are in the custody of the Department of Labour (DOL). For the purpose
of this practice note , such appellants will be referred to as “Mangere
detainees”.
[24.10] A Mangere detainee is brought before the Authority solely for
the purpose of his/her appeal and is brought to the Authority under
restricted security conditions outlined in [24.11] – [24.14] below.
[24.11] The ability of a Mangere detainee to communicate with any
person, other than those persons listed at [24.3] (a), (b), (d), (e)
and (f) shall be at the discretion of his/her DOL escort officer. The
ability of a Mangere detainee to receive any item or items other than
items/material relevant to their appeal or other legal matters provided
by those persons listed at [24.4] shall be at the discretion of his/her
DOL escort officer.
[24.12] To the greatest extent possible, but subject to security
requirements determined by the Department of Labour (“DOL”) escort
officer(s), a Mangere detainee will be able to communicate in private
with his/her representative. A room, known as the “counsel room”, will
be available for this purpose and if practicable can also be used as a
prayer room.
[24.13] The secretariat of the Authority will ensure that Mangere
detainees and the DOL escort officer(s) is provided with lunch and
refreshments. The DOL shall advise the secretariat of any
dietary, medical or religious considerations relevant to the provision
of lunch and refreshments.
[24.14] In the event of building evacuation, Mangere detainees and
their escort(s) will act on the directions of the fire warden however
responsibility for the security of an appellant will remain the
preserve of the DOL escort officer(s) at all times.
[25.1]
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. Applications for adjournments should be
supported by relevant evidence. Should an application for an
adjournment be granted, the setting of a new fixture date shall be at
the Authority’s discretion.
[25.2] A hearing will not be adjourned solely on the grounds that a
legal aid application has not been determined.
Medical Grounds
[26.1] 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:
(a) the illness or disability of the appellant;
(b) the expected duration of the illness or disability;
(c) the reason why, in the opinion of the registered medical
practitioner, the appellant is unable to attend the scheduled hearing;
and
(d) the medical practitioner's professional opinion as to when the
appellant will be fit to attend a hearing.
APPLICATIONS FOR
LEAVE TO APPEAL OUT OF TIME
[27.1]
Appeals must be lodged within the prescribed time limits as set out in
s129O(3) of the Immigration Act 1987. The Authority has jurisdiction
under s129O(4) of the Act to extend the time for lodging an appeal
where it is satisfied that special circumstances warrant such an
extension.
[27.2] Where an intended appeal has been received out of time, the
intending appellant will be given five working days within which to
file a formal application for leave to appeal out of time.
[27.3] 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.
[27.4] 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.
[28.1] If
an appellant leaves New Zealand, s 129V of the Act requires that his or
her appeal is to be treated as withdrawn.
[28.2] 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.
APPEAL AGAINST
DETERMINATIONS INVOLVING LOSS OF REFUGEE STATUS AND OTHER MATTERS
[29.1] 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).
[29.2] Upon receipt of any such appeal, the Authority will set the
matter down for a hearing and give directions for the purpose of
ensuring that the appeal is determined in a fair and expeditious
manner.
[29.3] It is anticipated that, in respect of any such appeal, the
Refugee Status Branch will be represented at the hearing before the
Authority.
APPLICATIONS
CONCERNING LOSS OF REFUGEE STATUS
[30.1] 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.
[30.2] 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.
[30.3] Where the application for loss of refugee status is accepted for
consideration under Reg 17, the Authority will serve a copy of the
application on the person to whom it relates together with all other
information and material required by Reg 18 of the Immigration (Refugee
Processing) Regulations 1999.
[30.4] 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).
[30.5] Where such request is made, the Authority will set the matter
down for hearing and give directions for the purpose of ensuring that
the application for loss of refugee status is determined in a fair and
expeditious manner.
[30.6] It is anticipated that on any application the refugee status
officer will appear in person or through counsel to present the
application.
[31.1]
Until 4 May 2009, appellants may be represented by a lawyer or other
representative either at their own expense or, if they so qualify, on
legal aid. From 4 May 2009 onward, appellants may be represented
by a lawyer, a licensed immigration adviser in accord with s6 of the
Immigration Advisers Licensing Act 2007 (“IAA Act”), or a person exempt
from the requirement to hold a license pursuant to s11 of the IAA Act.
[31.2] 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.
[32.1]
>From time to time, appellants, representatives and the Department of
Labour (“DOL”) approach the Secretariat, Chairperson or other members
with an enquiry as to the likely date of publication of a decision.
[32.2] For reasons of confidentiality, only the appellant, the
representative and the DOL will be given a response to such requests.
[32.3] 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.
[32.4] If the enquiry includes a request for urgency, reasons why
urgency is reuested should be included.
[32.5] 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, including where appropriate by email, and will not be by
telephone.
[32.6] The response to an enquiry will, in all cases, be sent to both
the DOL and to the appellant at the same time.
[32.7] The response will be a “best estimate only”, and it is expected
that only one such request will be made for each appeal.
[32.8] No indication whatsoever of the likely outcome of the appeal
will be given.
[32.9] 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.
[33.1] Section 129T of the Immigration Act 1987 applies to the
publication of decisions.
[33.2] A confidential, personalised version of each decision will be
published to the appellant through his or her representative (if any)
and to the DOL.
[33.3] 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. Representing that a depersonalised research copy of
an Authority decisions relates to a specific individual appellant may
breach s129T of the Immigration Act 1987.
[33.4] The published research copy decisions and/or abstracts will be
available for research purposes on the Authority's website
http:\\www.nzrefugeeappeals.govt.nz, and may be available at the
Refugee Research and Information Branch Library, and the Auckland
District Law Society Library, and at the Davis Law Library of the
Faculty of Law, University of Auckland.
[34.1]
When the Authority has determined an appeal or application before it,
the Department of Labour (“DOL”) file is returned to the DOL. Any
original documents held on that file accompany the file. An appellant
seeking the return of original documents submitted to the DOL should
address such requests to the DOL, not the Authority.
[35.1] Any person who wishes to make a complaint against any member of
the Authority may do so in writing to the Chairperson of the Authority.
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 of the Authority should be addressed to the Deputy
Chairperson of the Authority or Minister of Immigration.
[35.2] 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.
[36.1] 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
11th day
of
September
2008
....................................................
A R Mackey
Chairperson
Refugee Status Appeals Authority