REFUGEE STATUS APPEALS
PRACTICE NOTE 1/99
1 MARCH 1999
THIS PRACTICE NOTE HAS BEEN SUPERSEDED BY
NOTE 2/99 (1 OCTOBER 1999). THE TEXT OF THE NEW PRACTICE
CAN BE ACCESSED BY CLICKING HERE]
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 NATURE OF APPEAL
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.
2.2.1 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:
interpreter provided by the Authority's secretariat;
of the RSB/Crown attending hearings;
of the Authority.
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.
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 www.refugee.org.nz.
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.
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.
Hearings before the Authority
will, unless otherwise authorised by the Chairperson of the hearing, be
conducted in an investigative or inquisitorial manner.
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).
Authority hearings held in private.
However the following allowances are made:
An appellant, may with the leave
of the presiding member, have a friend or relative attend the hearing and
observe, but take no part in the proceedings;
An observer representing the
appellant's counsel or representative may attend with the leave of the
presiding member and make notes, but shall not otherwise take part in the
From time to time other persons
(e.g. new Authority members, Members/Judges from similar overseas authorities,
staff undergoing training, students) may be invited to observe a hearing.
In these cases the presiding member will ask the appellant if he or she
has any objection to having the observer attend the hearing;
A UNHCR representative(s) may
attend to observe any hearing at any time after giving a prior request
to the presiding member;
In all cases, observers will
respect the confidentiality and complete a simple observer attendance form/consent
with which be provided by the Registrar and produced to the appellant for
approval if necessary.
Notice of appeal is not required
on any particular form but it must be in writing and delivered within the
prescribed time limits.
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
Subject to any over-riding ruling
of the Chairperson of the hearing:
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
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.
factual evidence includes:
details of the appellant's family,
including details of all family members in New Zealand and their current
status and whereabouts;
facts relevant to the legal
ORDER OF HEARING
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.
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.
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:
opening introduction and explanations
opening submissions may then
be presented by counsel, a representative or the appellant personally;
the appellant will then be questioned
by the members of the Authority;
any witnesses will then be questioned
at the discretion and direction of the Chairperson of the hearing;
after questioning, the appellant's
counsel/representative will be offered the opportunity to re-examine the
appellant or witness to clarify any matters arising from the members' questions;
the appellant and/or counsel/representatives
will then have the opportunity to make final submissions on the appeal;
the appellant or counsel/representative
may request the Authority, or be requested by the Chairperson, to present
additional submissions where relevant;
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.
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.
SPECIAL NEEDS OF APPELLANTS/COUNSEL/REPRESENTATIVES
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.
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.
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.
APPLICATIONS FOR LEAVE TO APPEAL OUT OF TIME
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.
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:
the illness or disability of
the expected duration of the
illness or disability;
the reason why, in the opinion
of the registered medical practitioner, the appellant is unable to attend
the scheduled hearing; and
the medical practitioner's professional
opinion as to when the appellant will be fit to attend a hearing.
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.
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.
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
may be represented by counsel either at their own expense or, if they so
qualify, by the assistance of legal aid.
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
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
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 www.refugee.org.nz.
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.
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.
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:
It relates only to the fact
that the person complaining did not receive a favourable decision; or
The investigation of the complaint
will involve an interference with the independent decision-making function
of a member; or
The complainant has a right
of access to a more appropriate complaint or review proceedings; or
The complaint is frivolous or
It is made by a person who is
not affected by the behaviour complained of. (A parent, guardian,
counsel or representative or other person having a legitimate interest
in the welfare of the person affected by the behaviour complained of is
a person affected by that behaviour).
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.
"A R Mackey"
Chairperson, Refugee Status