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 2002
This is the third annual 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.
It has been a busy year for the Refugee Status Appeals Authority (the Authority) in which it received an increase in the number of appeals, following an increase in the number of decisions made at first instance by the Refugee Status Branch. 651 hearings were completed and 637 decisions published. A substantial number of appeals were found to be ‘manifestly unfounded and/or clearly abusive’, the majority of which were part of a well-orchestrated scam perpetrated against the refugee determination process.
The Authority ended the financial year with a large number of outstanding appeals but had developed a strategy to address this backlog in the upcoming year. This strategy includes proposals to the Department of Labour for increased resources to address the backlog.
FUNCTIONS AND PROCEDURES
The Authority operates as an independent decision-making body of review. Pursuant to Schedule 3C of the Immigration Act 1987 (the Act), 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”.
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 10 days of notification of that decision. The Authority can also hear and determine applications by refugee status officers as to whether: the Refugee Convention has ceased to apply; 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 a refugee should be excluded under Articles 1D, 1E or 1F of the Convention where refugee status was granted in the past but 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 and include reasons. Predominantly, the Authority sits with one member, but additional members can be directed to hear an appeal at the discretion of the Chairperson. Where relevant, the decision of the majority of members will prevail. If members are evenly divided, the matter will be determined in favour of the appellant.
At 30 June 2002, the Authority had received a total of 1,277 appeals, twice the number received in the previous financial year. In only one previous year, 1992/1993, has the number of appeals exceeded this total. In that year, 1,339 appeals were lodged. While the high number of appeals is due, in part, to the increased number of decisions made by the RSB, it is also in part due to the receipt of 304 appeals from Thai nationals. Of those determined by year’s end (284), all were found to be manifestly unfounded or clearly abusive. Included in this number were 239 almost identical appeals lodged through a small number of agents on behalf of Thai nationals. All appeals were without merit and all were clearly part of a scam perpetrated against the refugee determination process. Whilst these appeals were found to be manifestly unfounded, thereby obviating the need for the Authority to offer an interview, this group of appeals had a significant impact on the workload on both the Secretariat and Authority members, particularly because, at my direction, these appeals were given some priority. This was to minimise any benefits occurring to individuals from lodging meritless appeals in the hope of extending their unlawful stay in New Zealand.
At year’s end, the Authority had received 46 second or third appeals from members of the same group of Thai nationals. These were either determined as manifestly unfounded and dealt with expeditiously or are expected to be dealt with as such in the new financial year. It is to be hoped that the NZIS will act promptly to remove from New Zealand the persons participating in this or other similar scams.
The Authority heard and determined appeals lodged by nationals from 67 different countries. Thai nationals generated the highest percentage of appeals (23.9%), followed by Indian nationals (14.6%), Czech nationals (9%), Iranian nationals (6.6%), Sri Lankan nationals (6%) and Chinese nationals (4.9%). The remaining 35% were from nationals of 61 different countries. The wide range of country conditions considered by the Authority, and the increasing complexity of some appeals, made for an extremely busy year for members, the Secretariat, and the librarians in the Refugee Library who continue to provide an excellent service through the sourcing and provision of country information at the request of members, refugee status officers and lawyers.
The Authority completed 651 appeal hearings and published 637 decisions (including 303 manifestly unfounded claims). Of these, 51 were grants and 586 were declines. There was a significant increase in the number of appellants who were detained either in a remand prison or at the Mangere Detention Centre. The Authority gives priority to the hearing of such appeals. This, coupled with the complexity of many of the claims made by those in custody, impacted on the number of appeals the Authority could determine in this financial year. Notwithstanding that, the volume of decision-making represented a real commitment and effort on the part of Authority members and the Secretariat staff, given other projects in which the Authority was involved in the financial year and the changes in membership composition over that year. Specific breakdowns of the appeals determined are to be found in Appendix A-F.
Since the Authority was established in 1991, it has finalised 5,944 decisions. Of these, 842 were granted and the balance declined or withdrawn.
Because of the increase in appeals, the decrease in the number of members over the past two years and the inability of the Authority to recruit the member full-time equivalents (FTEs) required over the past several years, 770 undetermined appeals were carried forward. By year’s end the Authority had developed a strategy for dealing with this backlog and the flow of appeals anticipated in the next financial year. This strategy relies to a considerable extent on the recruitment of more members, a corresponding increase in Secretariat staff and an increase in office space. Without the successful recruitment of a significant number of new members in the next financial year, it is highly unlikely that the Authority will be in a position to determine all appeals received during the upcoming financial year and even some of the appeals from the backlog. As noted in the previous Annual Report, the Authority has long identified the need to increase the fees paid to members to enable it to recruit sufficient suitably qualified members. Without such increase occurring in the upcoming financial year, I consider it highly unlikely that the Authority will be able to recruit the members necessary to meaningfully address the accumulated appeals in a timely fashion, or even retain its existing membership.
The budgets for both the Authority’s Secretariat and the Authority members were underspent. The expenditure of the Authority membership was 73% of the budgeted figure; the expenditure of the Secretariat 92%.
The past Chair of the Authority, Allan Mackey, resigned with effect from 5 October 2001 to take up a position on the United Kingdom Immigration Appeal Tribunal. I was appointed Chair from 1 November 2001. Rodger Haines QC remains as Deputy Chair (currently a part-time position).
Two members did not seek to renew their warrants which expired in June 2002. Shelley Sage concluded her service to the Authority, having been appointed since 1993. Jonathon Moses chose not to renew his warrant as he remains instead as senior prosecuting counsel to the War Crimes Tribunal in Rwanda.
The Authority was fortunate to recruit four new members during the course of the year. Andrew Molloy was appointed as a full-time member; Ruth Buddicom, Michael Hodgen and Bronwen Klippel were appointed as part-time members. For a full list of members, their warrant expiry dates, fees paid and commitment to the Authority, refer to Appendix G & H.
The four new members were appointed (totalling 2 FTEs) following a recruitment drive in September/October. Three FTEs had been sought. This was not achieved due to the lack of suitably qualified applicants. As in past years (and noted in the Annual Report of June 2001), the Authority has identified a number of issues that could improve recruitment. Of these, the fee paid, particularly to part-time members, is regarded as a significant impediment to attracting competent experienced lawyers who satisfy the requirements of S129N of the Act and who are qualified to undertake the difficult task of refugee determination. With significant input from the Department of Labour, some progress was made in advancing the issue of fees payable to members of the Authority and it is to be hoped that this issue will be resolved in a satisfactory manner in the course the upcoming financial year.
The Authority was fortunate to retain a number of now highly skilled members who were able to deal fairly and efficiently with a wide range of cases, often under considerable pressure. One of the priorities for the next financial year is to retain this experienced membership and to train and mentor new members.
As Chair I have been fortunate to have had the support of all members and Rodger Haines, QC, the Deputy Chair, who has provided invaluable advice and support since my appointment.
During the year, one formal complaint was received. This was investigated and satisfactorily resolved.
Four Judicial Review applications were lodged in the High Court during the year. Two were withdrawn and one discontinued. The only case that proceeded was dismissed. The absence of any successful judicial review proceedings is a positive reflection of the calibre of the Authority’s decision-makers. Since the Authority was established in 1991, only seven of the 63 Judicial Review proceedings brought have been successful.
During the first five months of the financial year, two senior members of the Authority spent eight to 10 weeks in South Africa, and another senior member 16 weeks, assisting with the establishment of a refugee determination system in that country. The Authority acknowledges the support of the Minister of Immigration in this project. From the ongoing professional relationship between the RSAA and the South African Refugee Appeals Board (RAB) it is evident that the RAB has implemented a number of initiatives instigated by the members. The ability to participate in the development of the South African refugee determination project enhanced the skills of the three senior members of the Authority who participated by undertaking the training of lawyers and decision-makers, and stream-lining the administration of the determination process. Each was reinforced in his or her own view that New Zealand is fortunate in having an efficient, fair and jurisprudentially-sound refugee determination process.
During the financial year, the Authority and Secretariat (together with the NZIS) developed the Authority’s website. On 21 June 2002, the site was launched (http://www.nzrefugeeappeals.govt.nz) and offers a searchable database of all the Authority decisions published since 1 January 1997, together with a selection of decisions published prior to that date. In addition to the Authority’s decisions, the site contains information about the Authority, its Annual Reports and Practice Notes. The purpose is to assist Authority members, counsel and refugee status officers in the refugee determination process in New Zealand and to make available our jurisprudence to the international community. While the development of the site was considerably more complicated than first envisaged, and involved a significant amount of member input, it was a worthwhile project and one which will be monitored and updated as appropriate.
The Authority is hosting the International Association of Refugee Law Judges’ bi-annual conference in Wellington in October 2002. The programme was well advanced during the financial year with an impressive range of speakers. Up to 100 delegates from over 35 countries are expected to attend the four-day programme. The conference will be preceded by an Advanced Refugee Law Workshop being held in Auckland over two days under the direction of Professor James Hathaway of the University of Michigan. All Authority members and the Secretariat have been involved in the conference and workshop projects.
DEPARTMENT OF LABOUR AND AUTHORITY SECRETARIAT
Since my appointment as Chair, I have met and worked with the Secretary of Labour, the General Manager of the NZIS and senior officials within the Department of Labour and the New Zealand Immigration Service. I am grateful to them for their support of the Chair and of the Authority as a whole. I also take this opportunity to acknowledge the support of the Minister of Immigration, Lianne Dalziel.
Finally, I wish to acknowledge the support of the Authority Secretariat. The Authority is fortunate to have a small but efficient and hardworking team who have coped under considerable pressures throughout the financial year to deliver high quality service to the Authority. 1,277 appeals were received by the Secretariat, 651 hearings completed and 637 decisions published. The Secretariat has also contributed to the projects undertaken by the Authority over and above the hearing and determining of appeals. Brian Lewis, Registrar of the Authority, has led this team in an exemplary manner and has provided the incoming Chair with unstinting support, advice and energy.
2001/2002 FISCAL YEAR ACTIVITIES
Appendix A Nationality statistics
Appendix B Female appellants by country
Appendix C Male appellants by country
Appendix D Minors/Children by country
Appendix E Exclusion decisions - Article 1F
Appendix F Statistics since establishment of the Authority (1991 - 2002)
Appendix G Membership
Appendix H Disclosure
Note: Appendix A to Appendix E contain statistical information regarding all appeals decided within the financial year
Breakdown of Appeals Decided by Country of Origin
1 July 2001 to 30 June 2002
Country Jul Aug Sept Oct Nov Dec Jan Feb Mar Apr May Jun Total Afghanistan 1 1 Albania 3 3 Algeria 1 1 1 4 1 1 1 10 Bangladesh 1 2 5 3 11 Bolivia 2 1 1 4 Cambodia 6 1 1 8 Chile 4 4 China 1 5 5 5 2 6 2 3 3 4 6 1 43 Colombia 1 1 Czech Republic 1 9 2 1 1 4 10 28 Fiji 4 1 4 1 4 1 6 21 Ghana 1 1 India 4 4 4 3 3 8 7 11 11 6 8 9 78 Indonesia 1 2 3 2 2 1 11 Iran 1 4 1 1 3 9 19 Iraq 1 1 1 3 Jordan 1 1 Kenya 1 1 Liberia 3 1 4 Libya 1 1 Lithuania 2 2 Malaysia 2 2 4 Mali 1 1 Moldova 1 1 Nigeria 2 2 1 1 1 3 1 11 Pakistan 1 1 1 1 1 1 6 Philippines 1 1 2 1 4 3 2 4 18 Poland
3 3 Russian Federation 1 1 2 Sierra Leone 2 4 6 Slovak Republic 1 1 Solomon Islands
1 1 Somalia 1 1 South Africa 1 1 2 Sri Lanka 2 1 9 4 16 Tanzania
1 1 Thailand 15 10 8 92 42 13 11 15 14 30 34 284 Turkey 4 4 Vietnam 1 1 2 1 1 3 9 Yemen 1 1 Yugoslavia 4 4 Zimbabwe
5 1 6 Appeals Decided 8 43 49 25 109 72 28 35 51 41 93 83 637
1 July 2001 to 30 June 2002
Country Number Allowed Dismissed MU Appls Non- appearances 2nd Appls 3rd Appls
Albania 2 2
Algeria 1 1
Bangladesh 3 3
Bolivia 1 1
Cambodia 3 3 Chile 2 2 China 8 8 1 4 Czech Republic 11 4 7 1 Fiji 8 8 2 India 8 8 Indonesia 4 4 2 1 Iran 2 2 Iraq 1 1 Kenya 1 1 Lithuania 2 2 1 Malaysia 2 2 Nigeria 1 1 1 Philippines 5 5 3
Poland 2 2
Russian Federation 1 1
Sierra Leone 2 1 1
Slovak Republic 1 1
Solomon Islands 1 1
Sri Lanka 7 2 5 Tanzania 1 1
Thailand 116 116 113 2 6 1 Turkey 3 3 Vietnam 2 2 1 Yugoslavia 2 2 Zimbabwe 5 4 1
Total 208 17 191 123 8 7 1
1 July 2001 to 30 June 2002
Country Total Allowed Dismissed MU Appeals Non- appearances 2nd Appeals 3rd Appeals
Afghanistan 1 1
Albania 1 1 Algeria 9 1 8 Bangladesh 8 8 Bolivia 3 1 2 Cambodia 5 5 Chile 2 2 China 35 4 31 1 2 Colombia 1 1 Czech Republic 17 3 14 3 Fiji 13 13 6 Ghana 1 1 India 70 3 67 1 10 3 Indonesia 7 7 4 Iran 17 8 9 2 Iraq 2 1 1 Jordan 1 1 Liberia 4 1 3
Libya 1 1
Malaysia 2 2 Mali 1 1 Moldova 1 1 Nigeria 10 10 Pakistan 6 2 4 2 Philippines 13 13 8 Poland 1 1 Russian Federation 1 1 Sierra Leone 4 3 1 Somalia 1 1 1 South Africa 2 2 1 Sri Lanka 9 3 6 Thailand 168 168 160 5 18 1 Turkey 1 1 Vietnam 7 7 3 Yemen 1 1 Yugoslavia 2 2 Zimbabwe 1 1 Total Male appellants 429 34 395 183 22 25 1 Grand Total (Male plus female appellants) 637 51 586 306 30 32 2
1 July 2001 to 30 June 2002
Country Number Allowed Dismissed Male Female
Albania 1 1 1 Algeria 2 2 2 Bangladesh 2 2 2 Cambodia 3 3 2 1 Chile 2 2 1 1 Czech Republic 10 3 7 6 4 Fiji 3 3 2 1 India 2 2 1 1 Indonesia 2 2 1 1 Iran 1 1 1 Philippines 1 1 1 Poland 1 1 1 Sierra Leone 2 2 2 Sri Lanka 5 2 3 3 2 Thailand 7 7 4 3 Turkey 2 2 2 Yugoslavia 2 2 1 1 Zimbabwe 2 2 1 1 Total Minors/Children 50 13 37 26 24
Exclusion Decisions* - Article 1F
1 July 2001 to 30 June 2002
Country Number Allowed Dismissed Male Female Pakistan 1 1 1 Thailand 2 2 2
Totals 3 1 2 3 0
* Being cases where the application of the Exclusion Articles of the Refugee Convention was considered.
Statistics Since Establishment in 1991 (as at 30 June 2002)
Appeals/Registered Withdrawn/Out of Time Other Determinations Decisions Published 6,727 1,154 12 (historic) 4,791
Appeals Allowed Appeals Declined Determinations Outstanding 842 3,949 770
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
18 days 30 June 2003 Peter Andrew 2-3 days 30 June 2005 Jo Baddeley Full-time 5 September 2004 Ruth Buddicom 8-10 days 28 February 2003 Anna Fitzgibbon 2-3 days 30 June 2005 Rodger Haines QC
12-14 days 30 September 2003 Michael Hodgen 8-10 days 28 February 2003 Sharyn Joe* 8-10 days 30 June 2003 Bronwen Klippel 8-10 days 28 February 2003 Judge Allan Lawson 8 days 30 June 2004 Allan Mackey 15 days Resigned from 5 October 2001 Paul Millar* 18 days 30 June 2003 Andrew Molloy Full-time 28 February 2003 David Plunkett* 16 days 30 June 2003 Gerard McCoy 3 days 31 December 2004 Jonathan Moses One year's leave of absence granted 30 June 2002 Margaret Robins 3-4 days 5 September 2003 Martha Roche 16 days 5 September 2005 Shelley Sage* 4-5 days 30 June 2002 Virginia Shaw* 12 days 30 June 2003 Prue Tamatekapua As available 5 September 2005 Charles Martin Treadwell* 16 days 30 June 2003 Lisa Tremewan* 12-14 days 30 June 2003
* Also serve on immigration Appeal Authorities.
In accordance with Cabinet Office Circulars: CO (01) 8 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 2001/02 fiscal year were:
Member Fees paid Benefits* received Elizabeth Aitken (Chair) $141,460 $279 Peter Andrew $18,147
Jo Baddeley $109,200 $398 Ruth Buddicom $11,750
Anna Fitzgibbon $13,375
Rodger Haines QC (Deputy Chair) $189,237
Michael Hodgen $9,661
Sharyn Joe $66,066 $391 Brownen Klippel $4,160
Judge Allan Lawson $47,500
Allan Mackey $31,850
Paul Millar $78,468 $467 Andrew Molloy $13,653
David Plunkett $69,236 $249 Gerard McCoy $4,000
Jonathan Moses Nil
Margaret Robins $34,000
Martha Roche $43,810
Shelley Sage $13,125
Virginia Shaw $71,875
Prue Tamatekapua Nil
Charles Martin Treadwell $84,084
Lisa Tremewan $58,053 $514
* Benefits consist of telephone rental for fax/email communication.