This Practice Note consolidates and supersedes all previous Practice Notes and is effective from 1 October 1999.  It is to be read subject to the Immigration Act 1987 and the Immigration (Refugee Processing) Regulations 1999 (SR1999/285).
 

PROCEDURE ON APPEAL
Onus of proof
Hearing de novo
Confidentiality
Hearings Informal
Hearings Primarily Inquisitorial
Interpreters
Observers
Notice of Appeal
Address for Correspondence

PROVISION OF NZIS FILE

SUBMISSIONS

POWER TO ISSUE A SUMMONS

EVIDENCE
Oaths and Affirmations
Corroborative Evidence
Post-Hearing Evidence

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

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, 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 recognize 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).

[1.3]  Schedule 3C, cl 8(1) 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.
 

Onus of proof

[2.1]  As provided by s 129P(1) and (2) 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]  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.  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 Secretariat.

[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.
 
[4.3]  Except in rare circumstances, a depersonalised research copy of each Authority decision is published in addition to the confidential, personalised version of the decision released to the appellant.  The published decision is prepared solely for research purposes.  It will not contain the name of the appellant or other identifiers.  These published decisions and/or abstracts of all decisions are available for research purposes at the Nicholson Refugee Status Library, the Auckland District Law Society Library, the Davis Law Library at the Faculty of Law, University of Auckland and on the RefNZ web-site www.refugee.org.nz.
 
[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 does not normally provide a transcript.

Hearings Informal
 
[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.
 
Interpreters
 
[7.1]  Independent interpreters, will be provided solely for the purpose of the hearing.  Representatives or 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.  The Secretariat will use its best endeavours to meet those needs.

Observers

[8.1]  Hearings are held in private.  However the following allowances are made:

• Prison guards 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;

•  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;

• A UNHCR representative may attend to observe any hearing at any time;

• A refugee status officer or other officers of the Department of Labour may, with the leave of the presiding member, attend to observe a hearing.  Such person will not, without leave, be allowed to take part in the proceedings;

• From time to time other persons (eg, Judges or tribunal members from similar overseas tribunals, staff undergoing training, law 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 the observer attending the hearing.

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, Auckland), or filed at its street address (3rd Floor, Waverley Building, 11-13 Waverley Street, Auckland).
 
Address for Correspondence
 
[10.1]  In accordance with s 129P(3) of the Act and r 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.

[10.3]  An appellant who fails to notify the Authority of a change of address may not receive important correspondence from the Authority.  This could prejudice the proper presentation of the claim to refugee status.
 

[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 transferred to the NZIS for action, together with their file.

[11.3]  It should be noted that the Authority, in relation to its judicial function, is not subject to the requirements of the Official Information Act 1982 or of the Privacy Act 1993.
 

Subject to any over-riding ruling of the presiding member of the hearing:
 
[12.1]  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 working days before the hearing date;

[12.2]  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 working days before the hearing date;
 
[12.3]  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 by a suitably qualified translator at least three working days prior to the hearing date;
 
[12.4]  Submissions presented by the appellant or his/her representative shall address both the legal and the factual matters relating to the appellant’s claim;
 
[12.5]  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.
 

[13.1]  The Authority has power under s 4D of the Commissions of Inquiry Act 1908 to issue a summons requiring any person to attend a hearing and to give evidence, and to produce any papers, documents, records or things that are relevant to the appeal.  An application for the issue of a summons must provide the full name, address and other relevant details of the person sought to be summoned.

[13.2]  Where it is intended that the witness produce any papers, documents, records or things that are relevant to the appeal, appropriate particulars of the papers, documents, records or things must also be given.
 

[14.1]  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

[15.1]  Appellants and witnesses will be required to make an affirmation, or if preferred, to take an oath, before giving evidence before the Authority.

[15.2]  Interpreters will also be required to make an affirmation, or if preferred to take an oath, before interpreting before the Authority.

Corroborative Evidence
 
[16.1]  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.

Post-Hearing Evidence

[17.1]  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) that the decision of the Authority is final once notified to the appellant.
 

[18.1]  It is provided by s 129P of the Act 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.

[19.1]  In general, all hearings, when conducted by interview, will proceed as follows:

• opening introduction and explanation by Chairperson;
• opening submissions by counsel, a representative or the appellant personally;
• the appellant will then be heard and questioned by the members of the Authority;
• the appellant’s counsel or representative will be offered the opportunity to re-examine the appellant;
• any witnesses will then be heard and questioned;
• the appellant’s counsel or representative will be offered the opportunity to re-examine the witness;
• the appellant and/or counsel or representative will 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 and appropriate;
• 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 Chairperson or Secretariat.  A short break will usually be taken at 11.30am and 3.30pm to allow appropriate rest for appellants and interpreters.
 

[21.1]  As far as is practicable:  

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

[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 are requested to 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.
 
[22.3]  Before hearing the evidence of a child, the Authority will determine whether the child understands his or her obligations to tell the truth and whether the child 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.
 
Medical Grounds
 
[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:

• the illness or disability of the appellant;
• 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.

[26.1]  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, his or her claim or appeal is required by s 129V of the Act to be treated as withdrawn.

[27.2]  An appellant may withdraw an appeal at any time by giving notice in writing to the Authority.
 

[28.1]  Appellants may be represented by a lawyer either at their own expense or, if they so qualify, on legal aid.
 
[28.2]  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.
 

[29.1]  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.
 
[29.2]  For reasons of confidentiality, only the appellant, the representative and the NZIS will be given a response to such requests.
 
[29.3]  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.
 
[29.4]  If the enquiry includes a request for urgency, reasons why urgency is requested should be included.
 
[29.5]  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.
 
[29.6]  The response to an enquiry by the NZIS will, in all cases, be sent to both the NZIS and to the appellant at the same time.

[29.7]  The response will be a “best estimate only”, and it is expected that only one such request will be made for each appeal.
 
[29.8]  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.
 
[29.9]  No indication whatsoever of the likely outcome of the appeal will be given.

[29.10]  No enquiries from the media or representatives 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 confirm that an appeal has been received.
 

[30.1]  A confidential, personalised version of each decision will be published to the appellant, his or her representative, the NZIS and to the UNHCR.

[30.2]  Except in rare circumstances, a depersonalised research copy of each Authority decision is published in addition to the confidential, personalised version of the decision released to the appellant.  The published decision is prepared solely for research purposes.  It will not contain the name of the appellant or other identifiers.  These published decisions and/or abstracts of all decisions are available for research purposes at the Nicholson Refugee Status Library, the Auckland District Law Society Library, the Davis Law Library at the Faculty of Law, University of Auckland and on the RefNZ web-site www.refugee.org.nz.
 

[31.1]  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.

[31.2]  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 Authority will not deal with an anonymous complaint.
 

[32.1]  Pursuant to Schedule 3(C) of the Act, the Chairperson of the Authority will provide in each financial year, an annual report to the Minister of Immigration on the exercise of its functions in respect of the financial year ending in that year.
 
 

Dated this 1st day of October 1999
 
 
 
"A R Mackey"
.....................................................
[A R Mackey]
Chairperson
Refugee Status Appeals Authority