1 MARCH 1999


This Practice Note consolidates and supersedes all previously issued Practice Notes and is effective from 1 March 1999.
The current Rules for the Determination of Refugee Status in New Zealand came into effect on 30 April 1998.  Presently, legislation is before the Parliament which will legislate the system of refugee determination in New Zealand.  When the legislation is enacted, amendment may be required to these Practice Notes.
The following information on practice and procedure adopted by members of the Authority is designed to provide guidance to members of the legal profession practising in this field, to consultants acting as representatives of appellants, appellants appearing in person and to counsel and staff appearing on behalf of the Refugee Status Branch (RSB) of the New Zealand Immigration Service.

          2.1    Hearing de novo

All appeals before the Refugee Status Appeals Authority (the Authority) are conducted 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 first instance hearing before the RSB.
          2.2    Confidentiality
2.2.1  All appeal proceedings conducted by members of the Authority are confidential.  This confidentiality applies to any information given in support of the appellant's refugee application and extends to:

2.2.2    No persons 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 granting any permission to attend.

2.2.3    Except in rare circumstances, a depersonalised, research copy of each Authority decision is published.  The published decision is prepared solely for research and not identification purposes.  It will not contain any names or unnecessary identifiers.  These published decisions and/or abstracts of all decisions are available for research purposes at the Nicholson Refugee Status Library, Auckland District Law Society Library, Davis Law Library at the University of Auckland and some on the RefNZ web-site

2.2.4    All Authority hearings conducted by interview are recorded.  At the Authority's discretion copies of transcripts can be obtained, at the appropriate charge, from the secretariat by parties who have a right to them.

2.3    Hearings Informal

Authority hearings are procedurally informal. The RSAA may be addressed as "Mr/Ms Chairperson 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.

2.4    Hearings Primarily Inquisitorial

Hearings before the Authority will, unless otherwise authorised by the Chairperson of the hearing, be conducted in an investigative or inquisitorial manner.

2.5    Interpreters

Independent interpreters, will be provided solely for the purpose of the hearing. Counsel, representatives or the appellant will ensure, at the time of receiving notice of a hearing, that the secretariat is advised of the appellant's interpreting needs, including appropriate language(s) and dialect(s).

2.6    Observers

Authority hearings held in private.  However the following allowances are made:

2.7    Notice of Appeal

Notice of appeal is not required on any particular form but it must be in writing and delivered within the prescribed time limits.

2.8    Address for Correspondence

A notice of appeal must include an address to which documents relating to the appeal may be sent to the appellant/counsel/representative.  A copy of the RSB file (once provided by the RSB to the Authority) will be sent to the appellant, counsel or representative in each appeal.  Appellants must advise the Authority of any changes of address or any change in their counsel/representative.  It should be noted that documents are properly served on the appellant if posted to the last residential address or address for service provided by the appellant, counsel or representative.  An appellant who fails to notify the Authority of a change of address may not receive important correspondence from the Authority and may lose the opportunity to give evidence.
Subject to any over-riding ruling of the Chairperson of the hearing:

3.1    submissions, supporting evidence, and any new evidence relating to the appellant's appeal, are to be filed (three copies) at the Authority, at least three working days before the hearing date;

3.2    if the appellant, or his or her representative, wishes to produce 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 working days before the hearing date;

3.3    all written material intended to be produced at the Authority hearing, which is not in the English language, must be provided in the original language and a translation from a suitably qualified interpreter must be provided to the Authority (three copies) at least three working days prior to the hearing date;

3.4    submissions presented by the appellant or his/her representative shall address both legal and factual matters relating to the appellant's claim, although any new factual matters raised on appeal should be adduced in the form of a signed statement from the appellant or witness.

3.5    relevant factual evidence includes:

4.       EVIDENCE
The Authority is not bound by New Zealand's laws of evidence.  This allows for a more informal, fair and timely refugee determination, taking into account the realities of flight from the fear of persecution.  The investigative nature of the Authority permits members to make their own enquiries to supplement the evidence presented by the appellant or the RSB where considered appropriate by the member.

4.1    Appellants and witnesses are not required to swear or affirm evidence, but the necessity to tell the truth will always be presumed as a fundamental requirement.

4.2    Corroborative Evidence

The appellant, or representative, should submit 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.

In general, all hearings, when conducted by interview, will take the following order:

The sitting hours of the Authority will normally be 10.00am until 1.00pm and 2.00pm until 5.00pm, subject to adjustment by the Chairperson or secretariat.  A short break will usually be taken at 11.30am and 3.30pm to allow appropriate rest for interpreters.
As far as is practicable:

7.1    the Authority will endeavour to ensure that women appellants are heard by a panel of Authority members comprising at least one woman member;

7.2    an interpreter of the appropriate gender will, where possible, be used at a hearing where a claim involves allegations of sexual violence or abuse;

7.3    the appellant, counsel or representative should alert the Authority in advance of the hearing to any specific gender-related factors.
8.1    Where refugee claims have been lodged by more than one family member, or closely associated claimants contemporaneously, the Authority will, in most situations, endeavour to list hearings of all the family members appeals together where it comes to the Authority's knowledge and it is practicable to do so.

8.2    Appellants, counsel or representatives are requested to advise the Authority where several family members have appeals pending, or where they represent appellants whose refugee claim is based on the same or substantially similar grounds.

8.3    Before hearing the evidence of a child, the Authority will determine whether the child understands his or her obligations to tell the truth and if the child is capable of communicating evidence.
The Authority endeavours to be sensitive to special needs and expects to be assisted by advance notice of any special needs from the appellant, counsel or representatives.
10.1    The granting of an adjournment of a fixed hearing is a matter involving the exercise of the Authority's discretion.  They will rarely be granted without strong and cogently presented reasons.  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.

10.2    Medical Grounds

Medical certificates presented as the basis for an adjournment request must meet the minimum requirements before they will be acceptable as the basis for the granting of an adjournment.  In particular, the certificate must specify:

11.1    The Authority considers that, in closely defined circumstances, it may grant leave to accept an appeal outside the time limits imposed by the Rules.

11.2    Formal application must be made in each case, requesting the Authority to exercise its discretion, coupled with submissions and an affidavit from the appellant setting out strong and cogent reasons for the failure to lodge the appeal within time and why leave should be granted.  The submissions and affidavit(s) should set out the appellant's refugee claim and the reason why it is considered the appellant has an arguable case.

11.3    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 a viva voce hearing to consider the application for leave.  Where the matter is set down, the Authority will normally issue its decision on whether leave is granted immediately after hearing the application.  If successful, the Authority will then proceed with the hearing of the appeal itself.  Appellants, counsel and/or representatives should therefore be ready to proceed with the hearing of the full appeal immediately after consideration of the leave application.
12.1    Appellants may be represented by counsel either at their own expense or, if they so qualify, by the assistance of legal aid.

12.2    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 yet to be determined.
From time to time, appellants, their counsel, consultants, the NZIS/RSB or their counsel, approach the secretariat, Chairperson or other members, making enquiries as to the likely date of publication of Authority decisions.

13.1    For the reasons of confidentiality, only interested persons (including NZIS/RSB) or their counsel/consultant on the record, will be given a response to such requests.

13.2    All requests must be in writing, addressed to the Registrar and will set out the appellant's name, number of the appeal and hearing date, plus the names (if known) of members involved, if possible.

13.3    If the enquiry includes a request for urgency, reasons why the urgency is requested should be included.

13.4    The Registrar, on the direction of the member(s) involved, will endeavour to respond to the enquiry within one day from the time of receipt of the request. Responses will be in writing and will not be by telephone.

13.5    The response to the enquiry will, in all cases, be sent to both parties (the RSB and the appellant) at the same time.

13.6    The response will be a "best estimate only", and it is expected that only one such request will be made for each appeal.

13.7    If it transpires that the approximate date given could be delayed or advanced, the Registrar will endeavour to communicate that to the parties, as soon as reasonably possible.

13.8    No indication whatsoever of the likely outcome of the appeal will be given.

13.9    The confidential, personalised versions of each decision are published only to the appellant, their counsel/consultant, the RSB/Minister of Immigration and the UNHCR
(on request).

13.10    Legal research copies of depersonalised decisions are made available to the Nicholson Library, Auckland District Law Society Library, Davis Law Library at the University of Auckland and the editor of the web-site  Relevant Minutes and Practice Notes are also published to the above libraries.

13.11    No enquiries from the media, persons not on the record, or counsel or consultants not on the record as representing an appellant, will be responded to, beyond an acknowledgment stating that all appeals are confidential and the Authority cannot even confirm that an appeal has been received.
Any person who wishes to make a complaint against any member or officer of the Secretariat of the Authority may do so by writing to the Registrar or Chairperson.  A complaint should give details of the matter complained of and must give the name and address of the person making it.  The Authority will not deal with anonymous complaints.

The Registrar or his/her delegates will acknowledge receipt of the complaint as soon as practicable.

If the subject of the complaint is an officer of the Secretariat, the Registrar will deal with the complaint in accordance with the Secretariat's complaints handling mechanism.

If the subject of the complaint is a member of the Authority, the Registrar will refer the matter to the Chairperson. The Chairperson will investigate the complaint and take appropriate action in relation to it unless, in the opinion of the Chairperson:

A person making a complaint will be notified as soon as practicable of a decision made not to investigate the complaint and the reason for that decision.

Where a decision is made to investigate a complaint, the Chairperson or his/her delegate shall, as soon as practicable, advise the person making the complaint of the result of the investigation of the complaint and any action taken unless, in the opinion of the Chairperson, to do so would adversely affect the ability of any member to perform his/her functions and duties or would otherwise prejudice the effective operations of the Authority.
The Authority expects adherence to the above Practice Notes and will, at all times, endeavour to give prompt and meaningful responses on all other practice issues raised.
"A R Mackey"
Chairperson, Refugee Status Appeals Authority