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 Authority23 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 8 60 4 25 362 Aug-00 362 40 120 92 72 9 64 8 22 321 Sep-00 321 43 114 91 79 6 75 4 25 279 Oct-00 279 51 84 64 55 8 49 6 14 267 Nov-00 267 38 82 61 75 10 71 4 10 220 Dec-00 220 45 48 31 40 5 36 4 7 219 Jan-01 219 32 32 29 55 5 50 5 7 191 Feb-01 191 41 60 47 59 8 57 2 14 165 Mar-01 165 43 42 27 42 9 41 1 10 157 Apr-01 157 29 43 38 19 4 18 1 9 163 May-01 163 47 53 44 34 2 30 4 6 174 Jun-01 174 114 65 34 48 2 39 9 7 236 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 8 10 5 6 2 9 10 8 2 6 76 Indonesia 23 18 22 13 19 5 2 3 1 1 2 1 110 Iran 5 4 2 2 2 2 2 2 3 2 26 Iraq 1 1 Kazakhstan 1 1 Laos 1 1 Liberia 1 1 Libya 1 1 Macedonia 3 3 Malaysia 5 3 4 2 3 2 2 1 1 5 2 30 Morocco 1 2 3 Myanmar 2 2 Nepal 1 1 Nigeria 1 2 1 1 5 Pakistan 2 3 1 1 1 1 9 Romania 1 1 Russian Federation 1 1 2 Sierra Leone 1 1 1 3 Singapore 1 1 Somalia 1 2 3 South Africa 1 1 2 Sri Lanka 1 1 1 5 5 2 1 1 1 4 22 Thailand 1 2 1 9 11 6 16 9 5 6 15 81 Tonga 4 4 Tunisia 1 1 Turkey 1 1 2 Tuvalu 12 4 16 Ukraine 1 1 1 1 4 Vietnam 1 5 2 1 3 2 3 2 2 2 23 Zambia 1 1 Undisclosed /unknown 1 1 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 3 2 Czech Republic 3 3 1 Fiji 3 3 1 India 3 3 Indonesia 54 54 1 22 Iran 6 5 1 Laos 1 1 1 Liberia 1 1 Macedonia 3 3 3 Malaysia 12 12 9 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
/Unknown3 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.