Refugee Status Appeals Authority
 
PO Box 90251, Auckland Mail Centre, Auckland 1, New Zealand
3rd Floor, 13 Waverley Street, Auckland, New Zealand
Telephone (09) 914 4299 Facsimile (09) 914 5263
 
 
ANNUAL REPORT TO 30 JUNE 2001

This is the second official report presented to the Minister of Immigration pursuant to Schedule 3C of the Immigration Act 1987, as introduced by Section 129N(8) of the Immigration Amendment Act 1999.
 

OVERVIEW

The past year has been a successful one from the viewpoint of performance.  The Authority was able to complete decisions in 24% more appeals than in the 1999-2000 year.  The number of hearings scheduled, at 816, was approximately the same as for the previous year.  The number of appeals lodged followed a similar pattern to previous years where the Authority received considerable appeal numbers in July and then June of the following year.  There was a marked fall off during the middle of the fiscal year.  This would appear to result from Refugee Status Branch completing considerable numbers of their decisions in the last two months of the fiscal year, rather than a smooth flow of decisions month on month.  As the flow of appeals to the Authority is obviously totally dependent on the first instance decisions of the RSB, this pattern does not assist the smooth planning and resourcing of the Appeal Authority.  It is to be hoped that, with the considerable increase in the number of determination officers at the RSB, who have recently been appointed, a smoother pattern of decision-making can be achieved month on month, in the future.

Appeal Numbers

As stated, there was not a smooth flow of appeals coming to the Authority.  By way of comparison, in July 2000, there were 117 lodged and 114 in June 2001, whereas in all other months of the year, the number of appeals was in the vicinity of 35 per month.  The total appeals for the year was 640 (11% above the 575 figure in 1999/2000).  Some 816 hearings were scheduled during the past year, which was 1% down on the previous year.  However, the Authority was able to complete decisions in 642 appeals, as opposed to 517 in the previous year (a 24% increase).

If the level of decision-making at RSB continues at similar levels to those achieved by the RSB in June and July 2001, it is possible the Authority will be faced with a significant lift in the number of appeals to be heard and determined.  Accordingly, serious consideration is now being given to the need for additional membership.

Since the Authority was established in 1991, it has finalised 5,201 decisions.  Of these, 791 have been granted refugee status, with the balance being declined or withdrawn appeals.

In the past fiscal year, 52 appeals have been allowed and 590 declined.

Budgets

The budgets for both the Authority’s Secretariat and the Authority members were underspent.  The combined expenditure of the Authority membership and Secretariat was 91% of the budgeted figure.

Membership

During the past year, no new members were appointed.  However, one former member, Gerard McCoy QC (HK), was re-appointed in late 2001.  Three members retired from the Authority (one full-time, two part-time) and one part-time member has been granted one year’s leave of absence.  Current planning indicates that there will be need for additional members.  It is likely that open advertising, followed by merit appointment, will be undertaken within the next few months.

It is sincerely hoped that prior to advertising for additional members, significant membership issues relating to fees, tenure and career paths for members can be progressed.  For the past seven or eight years, efforts have been made to address systemic problems with these issues.  The resultant, and most serious, issue for the Authority is that the daily fee paid to part-time members ($500) has never been increased since 1992.  Whilst there have been some minor adjustments in fees paid to full-time members, tenure and career path issues remain unaddressed.  The last round of negotiations, which commenced more than a year ago, are still proceeding but are, as yet, unresolved.  It is my view as Chairperson that unless satisfactory resolution is promptly achieved, the Authority will face serious  issues of retention and future recruitment of appropriately skilled members.  The most significant problem is, in the view of the membership, that the Authority does not come under the auspices of the Higher Salaries Commission but remains, quite inappropriately, under the Fees and Allowances Act, along with predominantly part-time tribunals and statutory boards.  Clearly these boards are not comparable to the operations of this full-time, “Court-like” final appellate Authority, charged with making extremely serious decisions which, if wrong, can expose appellants to serious harm or even death.

Authority/Membership Recognition

We were honoured during the past year to have a Deputy Chairperson, John Priestley QC, appointed as a High Court judge.  Justice Priestley was a foundation member of the Authority and contributed significantly to the Authority’s development and its jurisprudence.  His forensic skills, high quality decision-making and guidance to newer members will be greatly missed.  Jonathon Moses was appointed during the year to be a senior prosecutor with the War Crimes Tribunal in Rwanda, a significant honour for a skilled and senior counsel.  He has taken two years’ leave of absence from the Authority.  Carol Parker also resigned from the Authority during the year to return to the UK.  She has been appointed as a part-time adjudicator on the United Kingdom Immigration Appellate Authority.

The international reputation of Deputy Chairperson, Rodger Haines, QC, has again been recognised as a leading academic in the field of refugee law.  Mr Haines will, at the invitation and cost of UNHCR, in September 2001, at San Remo, be a major presenter at the Global Consultations Roundtable, conducted by the UNHCR.  The consultations are a major part of the 50th anniversary re-assessment of the Convention.  He will be the principal speaker on the issue of gender in refugee determination.

At an earlier Global Consultation Roundtable in Portugal in May 2001, Virginia Shaw was invited by the UNHCR to be a panellist on international discussions on the issues of exclusion and cessation under the Refugee Convention.

After considerable negotiation between the International Association of Refugee Law Judges (IARLJ) and UNHCR, three members of the Authority, Virginia Shaw, Martin Treadwell and Paul Millar, are now involved, at two locations in South Africa, in guiding and establishing an appellate refugee determination system.  This project, to which the New Zealand Government has given generous support, is taking place over a period of five months from June to November 2001.  The New Zealand members are part of an international team which is establishing a viable appellate system in South Africa to deal with a backlog of some 12,000 appeals.  New Zealand was one of the first countries called on to assist the UNHCR with this project because of the respect the UNHCR holds for the quality and credibility of the New Zealand refugee determination system and our jurisprudence.

New Zealand has also been chosen for the next venue for the world conference of the IARLJ to be held in October 2002.  The IARLJ has some 400 members from 70 different countries around the world.  The conference will be jointly hosted by the New Zealand judiciary and the RSAA.  Assistance is to be provided for this conference by the Department of Labour and the Department for Courts.

Finally, I had the privilege of being appointed Vice President of the IARLJ in October 2002.

I consider it fair to say that the Authority now has an excellent team of well-trained, well-regarded,  experienced members.  A special thanks must also go to the first class Secretariat who have provided excellent service to the Authority members in the past year.
 

FUNCTIONS AND PROCEDURES
 
The Authority operates as an independent decision-making body of review.  Pursuant to Section 3C of the Immigration Act 1987, recently introduced, the Authority is serviced by employees of the Department of Labour (DOL), who are not employed to consider applications for permits under the Immigration Act or designated as refugee status officers within the Department.  The Department of Labour is directed to provide such resources as may be necessary to enable the Authority to carry out its functions under the Act.  The Act provides for the Chairperson to be “responsible for making such arrangements as are necessary or desirable to ensure the orderly and expeditious discharge of the functions of the Authority”.

Pursuant to the provisions of the Section 3C, the Authority operates as a Commission of Inquiry under the Commissions of Inquiry Act 1908.
 
Section 129O of the Act provides that a person who has been declined refugee status by a refugee status officer may appeal to the Authority against that officer’s decision, within a 10 day time limit, in most situations.  The Authority also has other powers to determine applications by refugee status officers as to whether: the Refugee Convention has ceased to apply (Article 1C of the Convention); a person should cease to be recognised as a refugee, following earlier recognition which may have been procured by fraud, forgery, false or misleading representation or the concealment of relevant information; or possible exclusion under Articles 1D, 1E or 1F of the Convention where refugee status was recognised in the past and matters may not have been properly considered by the Authority for reasons of fraud, forgery, false or misleading representation or the concealment of relevant information.

All decisions of the Authority must be given in writing, including reasons and, where relevant, the decision of the majority of members will prevail or, if evenly divided, the matter will be determined in favour of the appellant.  Predominantly, the Authority sits with one member, but additional members can be brought on to a panel at the discretion and direction of the Chairperson. 
 

2000/2001 FISCAL YEAR ACTIVITIES

Appeals Received and Processed

Full details of the Authority' s statistics are set out the Schedules to this report.

Membership

Four members have left the Authority and one has been re-appointed during the past year.  Details of membership, during the current financial year, is set out in the Schedule below.
 
 

Members Days per month on Authority Work (approximate) Expiry Date of Warrant
Elizabeth Aitken* 
(Deputy Chairperson)
18 days 30 June 2003
Peter Andrew 2-3 days 30 June 2005
Jo Baddeley Full-time 5 September 2004
Richard Donald Warrant expired 5 September 2000
Anna Fitzgibbon 2-3 days 30 June 2005
Rodger Haines QC  
(Deputy Chairperson)
12-14 days 30 September 2003
Sharyn Joe* 8-10 days 30 June 2003
Prue Tamatekapua As available 5 September 2001
Judge Allan Lawson 8 days 30 June 2004
Allan Robert Mackey* (Chairperson) 15 days 31 December 2003
Paul Millar* 18 days 30 June 2003
Carol Parker* Resigned June 2001
David Plunkett* 16 days 30 June 2003
John Priestley QC  Resigned when appointed High Court judge in November 2000
Gerard McCoy QC SC(HK) 3 days 31 December 2004
Jonathan Moses One year's leave of absence granted (warrant of expiry date 30 June 2002)
Margaret Robins 3-4 days 5 September 2003
Martha Roche 6 days 5 September 2001
Shelley Sage* 4-5 days 30 June 2002
Virginia Shaw* 12 days 30 June 2003
Charles Martin Treadwell* 16 days 30 June 2003
Lisa Tremewan* 6 days 30 June 2003
 
* Also serve on immigration Appeal Authorities.
 

Disclosure

In accordance with Cabinet Office Circulars: CO (01) 8, which states:

"57.    In respect of each individual member or former member of the body, the fees and other benefits received by that member or former member from the body during the reporting period should be published in the body's annual report [STR (99) M 23/2 refers]."
Members' fees for this Authority in the 2000/01 fiscal year were:
 
 
Member Fees paid Benefits* received
Elizabeth Aitken $98,345.60
Peter Andrew $24,349.21
Jo Baddeley $100,100.00
Richard Donald $6,064.04
Anna Fitzgibbon $23,086.64
Rodger Haines QC   $164,004.32**
Sharyn Joe $85,995.00 $480
Prue Tamatekapua $1,082.45
Judge Allan Lawson $53,860.00
Allan Robert Mackey $101,399.98 $480
Paul Millar $76,230.00 $480
Carol Parker $34,925.24 $480
David Plunkett $76,440.00
John Priestley QC  $24,447.44
Gerard McCoy QC SC(HK)
Jonathan Moses $18,750.00
Margaret Robins $56,000.00
Martha Roche $33,250.00
Shelley Sage $25,929.86
Virginia Shaw $71,874.00 $480
Charles Martin Treadwell $80,262.00
Lisa Tremewan $44,532.00 $480
 
* Benefits consist of telephone rental for fax/email communication.
** Includes an adjustment backdated to 1/10/1999 ($44,136).
 

Judicial Reviews of Authority Decisions

Schedule 6 below sets out the number of Judicial Reviews lodged in the past fiscal year and their current status.

Statistics Since Establishment in 1991 (as at 30 June 2001)
 
 

Appeals/Registered
Withdrawn/Out of Time
Other Determinations
Decisions Published
5,450
1,048
9
4,154
 
 
Appeals Allowed
Appeals Declined
Determinations Outstanding
791
3,363
236
 
 

Alan Mackey
Chairperson
Refugee Status Appeals Authority

23 August 2001

 

 

Schedule 1
 
Appeals Received and Determined
From 1 July 2000 to 30 June 2001
 
 
Month
Opening
Appeals Received
Hearings Scheduled
Appeals Actually Heard
Appeals Decided
Appeals Withdrawn /OOT
Declined
Approved
CA/MU
Closing
 July-00
317 
117 
91 
76 
64 
60 
25 
362 
 Aug-00
362 
40 
120 
92 
72 
64 
22 
321 
Sep-00 
321 
43 
114 
91 
79 
75 
25 
279 
Oct-00 
279 
51 
84 
64 
55 
49 
14 
267 
Nov-00 
267 
38 
82 
61 
75 
10 
71 
10 
220 
Dec-00 
220 
45 
48 
31 
40 
36 
219 
Jan-01 
219 
32 
32 
29 
55 
50 
191 
Feb-01 
191 
41 
60 
47 
59 
57 
14 
165 
Mar-01 
165 
43 
42 
27 
42 
41 
10 
157 
Apr-01 
157 
29 
43 
38 
19 
18 
163 
May-01 
163 
47 
53 
44 
34 
30 
174 
Jun-01 
174 
114 
65 
34 
48 
39 
236 
Total for Year 
 
640 
834 
634 
642 
76 
590 
52 
156 
 
 

OOT - Out of Time

CA/MU - clearly abusive or manifestly unfounded; numbers reflected in appeals decided and hearings scheduled.
 

 

Schedule 2
 
Breakdown of Appeals by Country of Origin
1 July 2000 to 30 June 2001
 
 
Country
Jul
Aug
Sept
Oct
Nov
Dec
Jan
Feb
Mar
Apr
May
Jun
Total
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Afghanistan
 
 
 
 
 
1 
1 
 
1 
 
 
 
 3 
Albania
 
 
 
 
 
 
 
 
 
 1
 
 
 1
Algeria
 
 1
 
 
 
 
1
 
 
 
 
 
2
Bangladesh
 1
 2
 
 1
 1
1 
1 
2 
1 
 
 
 1
 11 
Burundi
 
 
 1
 
 
 
 
 
 
 
 
 
  1
Cambodia
 
 
 
 
 
 
 
 
 1
1 
 
 
 2
Chile
 
 
 
 
 
 
 
 
 
 
 4
 
 4
China
 15
9 
 20
 20
 18
11 
16 
17 
11 
3 
8 
9 
157 
Congo
 
 
 
 
 
 1
 
 
 
 
 
 
 1
Czech Republic 
 
 
 
 
 
 
 
 
 1
 
 
  3
 4
Egypt
 
 
 
 
 1
 
 
 
 
 
 
 1
 2 
Ethiopia 
 
 
 
 
 
 
 
 
 
 
 
 1
 1 
Fiji 
 
 
 
 
 
 1
 5
 2
 2
 1
 2
 
13 
India 
 10
10 
10 
 
76 
Indonesia
 23
18 
22 
13 
19 
110 
Iran 
 
 
26 
Iraq 
 
 
 
 
 
 
 
 
 
 
 
Kazakhstan 
 
 
 
 
 
 
 
 
 
 
 
Laos 
 
 
 
 
 
 
 
 
 1
 
 
 
Liberia
 
 
 
 
 1
 
 
 
 
 
 
 
 1
Libya 
 
 
 
 
 
 1
 
 
 
 
 
 
 1
Macedonia 
 
 
 
 
 3
 
 
 
 
 
 
 
 3
Malaysia 
 5
 
30 
Morocco 
 1
 
 
 
 
 
 
 
 
 
 
 3
Myanmar 
 
 
 
 
 
 
 
 
 
 
 
 2
 2
Nepal
 
 
 
 
 1
 
 
 
 
 
 
 
 1
Nigeria 
 
 
 
 
 
 
 
 
Pakistan 
 
 
 
 
 
 
Romania 
 
 1
 
 
 
 
 
 
 
 
 
 
 1
Russian Federation 
 
 
 1
 
 
 
 
 
 
 
 
 2
Sierra Leone 
 
 
 
 
 1
 
 
 
 1
 
 
Singapore
 
 
 
 
 
 
 
 
 
 
 
 1
 1
Somalia 
 
 
 
 
 
 
 
 
 
 
 3
South Africa 
 
 1
 
 1
 
 
 
 
 
 
 
 
 2
Sri Lanka 
 
 
22 
Thailand
 
11 
16 
15 
81 
Tonga 
 
 
 4
 
 
 
 
 
 
 
 
 
 4
Tunisia 
 
 
 
 
 
 
 
 
 
 
 1
 
Turkey 
 
 
 
 1
 
 
 
 
 
 
 
Tuvalu 
 
 12
 
 4
 
 
 
 
 
 
 
 
 16
Ukraine
 1
1 
 1 
 
 
 
 
 
 
 
 
 4
Vietnam 
 1
 
 
23 
Zambia 
 
 
 
 
 
 
 
 1
 
 
 
 
 1
Undisclosed /unknown
 
 
 
 
 1
 
 
 
 
 
 3
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Appeals Decided 
63 
72 
78 
55 
75 
44 
51 
59 
42 
19 
34 
48 
640 
 
 
Schedule 3
 
Article 1F Exclusion Decisions
1 July 2000 to 30 June 2001
 
 
Country
Total
Male
Female
Allowed
Dismissed
 
 
 
 
 
 
Nepal
1
1
 
1
 
Sri Lanka
1
1
 
 
1 
Turkey
1
1
 
1 
 
 
 
 
 
 
Total Exclusions
3
3
0
2
1
 
 
Schedule 4
 
Female Appellants
1 July 2000 to 30 June 2001
 
 
 
Country
Total
Allowed
Dismissed
Wthdrwn
Non- appearances
MU Appls
2nd Appls
3rd Appls
 
 
 
 
 
 
 
 
Cambodia
1
 
1
 
 
 
 
 
Chile
1
 
1
 
 
1 
 
 
China
27
2
25
 
 
2
 
Czech Republic
3
 
3 
1 
 
 
 
 
Fiji
3
 
3
 
 
 1
 
 
India
3
 
 
 
 
 
 
Indonesia
54
 
54
 
22 
 
 
Iran
6
5
1
 
 
 
 
 
Laos
1
 
1
 
 
1
 
 
Liberia
1
 
1
 
 
 
 
 
Macedonia
3
 
3
 
 
3 
 
 
Malaysia
12
 
12
 
 
 
 
Myanmar
1
1
 
 
 
 
 
 
Nigeria
2
 
2 
 
 
 
 
 
Sri Lanka
5
1 
4
 
 
 
 
 
Thailand
31
 
31 
 
9 
21 
 
 
Tonga
1
 
1
 
 
1 
 
 
Tuvalu
7
 
7
 
 
7 
1 
 
Vietnam
5
 
5
 
 
2 
 
 
 
 
 
 
 
 
 
 
 
Total 
167
9
158
2
9
71
3
0
 
 
 
 
Schedule 4 continued
 
Male Appellants
1 July 2000 to 30 June 2001
 
 
 
Country
Total
Allowed
Dismissed
Wthdrwn
Non- appearances
MU Appls
2nd Appls
3rd Appls
Afghanistan
3
 
3 
 
 
 
 
 
Albania
1
1
 
 
 
 
 
 
Algeria
2
 1 
1
 
 
 
 
 
Bangladesh
11
 
11
1
2
 
1
 
Burundi
1
 
1 
 
 
 
 
 
Cambodia
1
 
1
 
 
2 
 
 
Chile
3
 
3 
 
 
3 
 
 
China
130
10 
120
1 
17 
7 
1 
 
Congo
1
1
 
 
 
 
 
 
Czech Republic
1
 
1
 
 
 
 
 
Egypt
2
 
2
 
 
 
 
 
Ethiopia
1
1
 
 
 
 
 
 
Fiji
10
 
10
 
 
 
 
 
India
73
1
72
 
4 
4 
2 
 
Indonesia
56
 
56 
 
 
23 
1 
 
Iran
20
10 
10
 
 
 
2 
 
Iraq
1
1
 
 
 
 
 
 
Kazakhstan
1
 
1
 
 
 
 
 
Malaysia
18
 
18
1 
 
13 
 
 
Morocco
3
2 
1
 
 
 
 
 
Myanmar
1
 
1
 
 
 
1 
 
Nepal
1
1 
 
 
 
 
 
 
Nigeria
3
1 
2
 
 
 
 
1 
Pakistan
9
1 
8
1 
2 
 
1 
 
Romania
1
 
1
 
 
 
 
 
Russian Federation
 2
 
2 
 
 
 
 
 
Sierra Leone
3
 
3
 
1 
 
 
 
Singapore
1
 
1
 
 
 
 
 
Somalia
3
1 
2
 
 
 
 
 
South Africa
2
 
2
 
 
 
 
 
Sri Lanka
17
5 
12 
 
2 
 
 
 
Thailand
50
 
50 
 
16 
30 
 
 
Tonga
3
 
3 
 
 
3 
 
 
Tunisia
1
1 
 
 
 
 
 
 
Turkey
2
1
1 
 
 
 
 
 
Tuvalu
9
 
9 
 
 
9 
 
 
Ukraine
4
 
4 
 
 
1 
1 
 
Vietnam
18
3 
15 
 
3 
2 
 
 
Zambia
1
 
1 
 
 
 
 
 
Undisclosed 
/Unknown
3
1 
2 
 
 
 
1 
 
 
 
 
 
 
 
 
 
 
Total Male appellants
473
43
430
4
47
97
11
1
 
 
 
 
 
 
 
 
 
Total Female appellants
167
9
158
2
9
71
3
0
 
 
 
 
 
 
 
 
 
Grand Total 
640
52
588
6
56
168
14
1
 
 
Schedule 5
 
Minors/Child Appellants
1 July 2000 to 30 June 2001
 
 
Country
Total
Male
Female
Allowed
Dismissed
Chile
2
 1
1
0
2
Indonesia
3
 2
1
0
3
Malaysia
3
 1
2
0
3
Sri Lanka
3
 3
0
3
0
Tuvalu
2
 0
2
0
2
Total Minors/Child Appellants
13
 7
6
3
10
 
 
Schedule 6
 
JUDICIAL REVIEWS
 
 
Judicial Reviews (Applications filed with High Court) 10
Allowed 2
Dismissed 6
Settled 0
Struck out 0
Outstanding 1
 

There have been 59 judicial reviews filed since the RSAA was established, of which 7 have been remitted back to the Authority.