RSAA Annual Report to 30 June 2006

ANNUAL REPORT TO 30 JUNE 2006

This is the seventh 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.

OVERVIEW

In this financial year the Refugee Status Appeals Authority (the Authority) determined 435 appeals and effectively eliminated the backlog of appeals “sealed” on 1 October 2002.

At the commencement of the year, there were 344 undecided appeals. That number had been reduced to 165 by the end of the year.

Two hundred and fifty-six new appeals were received. This continued the downward trend in appeal numbers since 2001/2002.

There were changes to the Authority membership, including the appointment of Pamela Andrews to the High Court and Anna Johns to the District Court.

Overall, the Authority had a productive year determining a range of relatively complex appeals, and a number of requests to cancel grants of refugee status previously conferred.

FUNCTIONS AND PROCEDURES

The Authority operates as an independent appellate body with wide-ranging powers of inquiry. It is serviced by employees of the Department of Labour who cannot consider applications for immigration permits or act as refugee status officers within the Department.1 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 Chairperson is “responsible for making such arrangements as are necessary or desirable to ensure the orderly and expeditious discharge of the functions of the Authority”.2

The Authority has jurisdiction to hear and determine any appeal by a person who has been declined refugee status by a refugee status officer. The Authority can also determine an application made to it, or an appeal against a decision by a refugee status officer, to cancel refugee status on the grounds the Refugee Convention has ceased to apply or that a person should cease to be recognised as a refugee, having obtained refugee status by forgery, false or misleading information, or the concealment of relevant information.

CASEFLOW MANAGEMENT

Consistent with worldwide trends, the number of refugee applications lodged in New Zealand, and therefore the number of appeals lodged with the Authority, continued to track down in this financial year.

The Refugee Status Branch received 317 applications compared with 395 applications in 2004/2005 and 713 applications in 2003/2004. The Authority received 256 new appeals in this financial year, compared with 360 appeals in 04/05, and 550 appeals in 03/04.

In 2001, asylum numbers globally reached a peak. By the end of 2005, applications for asylum in European and non-European industrialised countries had halved. In Australasia, asylum levels had dropped by 75% at the end of 2005.3

While over the same period there has been a significant increase in the numbers of persons internally displaced (IDPs), these people cannot apply for protection under the Refugee Convention as they are not outside their country of nationality and do not therefore impact on asylum processes worldwide.

Having carried over 344 appeals from the previous financial year, the Authority finally determined 435 appeals, with 165 carried over into the 06/07 financial year. Of the 435 appeals finalised, 40 were withdrawn, resulting in 395 published decisions. Eighty-five of those persons were granted refugee status (22%) and 310 declined (78%). In the 2004/05 financial year the percentages were 25% and 75% respectively.

Fifty-eight of the 395 decisions published related to minors, all of whom were accompanied by at least one parent.

Since the Authority was established in 1991, it has received a total of 8,563 appeals and published 6,895 decisions (the balance being appeals awaiting determination and those withdrawn (1,491) or otherwise disposed of (12)). Of the total decisions published by the Authority since 1991, 1,225 have been granted and the balance, 5,670, have been dismissed. The average percentage of appeals allowed since the Authority was established is 17.75%. However, the past two financial years have seen a grant rate above that average due primarily to the steady decrease over these past years in the number of manifestly unfounded appeals (which are inevitably declined).

The Authority heard and determined appeals lodged by nationals of 47 countries, and two stateless appellants. Nationals of India generated the highest percentage of appeals determined (15%), followed by nationals of Iran (14.7%), Sri Lanka (8.6%), Bangladesh (7.8%), Czech Republic (5.3%) and Nepal (4.3%). Details of appeals determined, including statistics by country and gender, are contained in Appendices A to C.

On 1 October 2002, the Authority sealed a backlog of 512 appeals. Funding allocated by the Department of Labour over the ensuing three years saw the backlog eliminated by 30 June 2006, with the exception of two appeals. Of the 510 backlog appeals determined by the end of this financial year, 114 were granted (22%), 285 were declined, and 111 appeals were withdrawn.

Given that appeals in the backlog were lodged before 1 October 2002, there were obviously significant delays in determining these cases. However, the average age of appeals in flow continued to trend down from previous years. At 30 June 2006, the average age of all appeals on hand was 3.19 months. The average age of appeals at the date of decision was 5.53 months, compared to 7.9 months in the previous financial year. The ability of the RSAA to hear and determine complex appeals in less than six months while maintaining high standards of fairness reflects well on both good processes and professional decision-making skills.

This efficiency was achieved notwithstanding that, for the third consecutive year, the number of manifestly unfounded and/or clearly abusive claims determined by the Authority declined. Twenty-five manifestly unfounded appeals were determined in this financial year, compared with 63 during the last financial year. These appeals are fast-tracked by the Authority to ensure they are heard (on the papers) and determined as expeditiously as practicable. For a breakdown of manifestly unfounded claims by country and outcome, see Appendix B.

During the course of the financial year, eight applications for judicial review of Authority decisions were lodged in the High Court. At the end of the last financial year, five judicial review applications were pending. In the course of the year, 13 applications were determined by the High Court. Of these, four were dismissed, two were allowed, four discontinued and three remitted back to the Authority by consent.

Cancellation proceedings continue to be brought before the Authority, and are likely to become a substantive part of the workload in the foreseeable future. Cancellation proceedings are brought where the Refugee Status Branch (RSB) has evidence that a grant of refugee status (by the RSB or the Authority) “may have been procured by fraud, forgery, false or misleading representation, or concealment of relevant information...” (ss129L1(f)(2) and 129R, Immigration Act 1987). If the Authority is satisfied the grant “may have been” so procured, then it must go on and consider whether the individual is still a refugee on the true facts as found.

Twenty-two cancellation cases were carried over from the previous financial year and, during the course of this financial year, the Authority received 17 further cases. Of these, 11 were appeals against decisions of the RSB cancelling its own earlier decisions; six were applications to the Authority to cancel its earlier decisions.

Fifteen cancellation decisions were made, two cases were withdrawn and there were 22 cases pending at the end of the financial year. Of the 15 cancellation cases determined, the Authority was satisfied that, in all but two cases, the grant of refugee status may have been procured by fraud and that the individual was no longer a refugee. Accordingly, refugee status was cancelled in respect of these individuals (being 86% of cases determined).

In general, and consistent with the previous financial year, most appeals heard by the Authority raised complex evidential and legal issues. The Authority was assisted in its determination in some cases by utilising its powers to enquire and to seek information through the office of the Chief Executive of the Department of Labour. It continues to have access to the excellent research and library facilities provided by the Refugee Status (Nicholson) Library and by the Authority’s own Legal Associates. The ability to obtain relevant, reliable and country- specific information remains pivotal to the discharge of the Authority’s functions.

BUDGET

The expenditure for both the Authority’s secretariat and its members was well within appropriation. The budget included resources for dealing with the third and final year of the Authority’s backlog which was sealed on 1 October 2002. As noted, by year’s end the backlog had been effectively eliminated and the Authority able to return surplus funds of $750,000 to the Crown.

AUTHORITY MEMBERSHIP

While there were 24 warranted members during this financial year, 12 were either inactive (for personal or professional reasons) or part-time members. With the decline in appeal numbers, few part-time members were still called upon to undertake the Authority’s work by year’s end.

Two members resigned their warrants to take up judicial appointments: Pamela Andrews on her appointment to the High Court and Anna Johns on her appointment to the District Court.

A number of member warrants expire in June 2007. If the decrease in appeals continues, many of these warrants are unlikely to be renewed. Some members of the Authority hold warrants on one or both of the immigration tribunals: the Removal Review Authority (RRA) and the Residence Review Board (RRB). Given that those tribunals had substantial backlogs at the start of the financial year, member capacity was shifted from the RSAA to them. This assisted all three tribunals in managing current work flows. Cross-appointments and part-time membership have proved essential mechanisms for managing what is, of its nature, an unpredictable flow of work to the RSAA.

For a full list of members as at 30 June 2006, and their remuneration, see Appendices D and E.

AUTHORITY ACTIVITIES

This year permitted the opportunity to focus on developing two useful Codes.

With the lack of tenure and the opportunity for part-time work, together with the desire of some members to lead full community lives, there is the potential for issues of conflict to arise. A member Code of Conduct was therefore developed and is intended to provide guidance to members. It has been promulgated to them and was well received.

I have referred in many previous reports to the pivotal role played by interpreters in the work of the RSAA. A review of interpreter services was completed during this financial year and a database of interpreters established. Also completed was an interpreter Code of Ethics, designed to assist interpreters in dealing with their difficult but crucial role, often while wishing to remain active in their own ethnic communities.

With the increasing complexity of refugee claims, including legal issues raised, member training included a presentation from a UNHCR representative with extensive experience of dealing with Iranian asylum claims, and a presentation on the rights contained in the International Covenant of Economic, Cultural and Social Rights 1966 by Paul Hunt, the UN Special Rapporteur on Health. As part of the Legal Associate training, two legal academics conducted a two-day workshop on international human rights law, also attended by many of the Authority’s members. I welcome and encourage opportunities for members to learn from both New Zealand and international experts in the various fields which impact upon our work.

In November 2005 Rodger Haines QC (Deputy Chair) was the principal lecturer at a training course in refugee law organised jointly by the Office of the United Nations High Commissioner for Refugees (UNHCR) and the European Council on Refugees and Exiles held at the Faculty of Law, St Petersburg State University, St Petersburg, Russia. In December 2005 he conducted a training course on refugee law and refugee decision-making for Fiji officials drawn from several Fiji government departments, and in April 2006 he was a member of the teaching faculty at the Cuenca Colloquium on International Refugee Law held at Cuenca, Spain.

The Authority continued its association with the Programme in Refugee and Asylum Law at the University of Michigan Law School, Ann Arbor, directed by Professor James C Hathaway by hosting a graduate law student from the University of Michigan who had been awarded a Michigan Fellowship to study the practical implementation of international refugee law in New Zealand. The Authority has actively fostered the development of links with international scholars and institutions, thereby enhancing the development of refugee jurisprudence in New Zealand.

THE AUTHORITY'S SECRETARIAT

The Authority’s small, dedicated secretariat continued to serve it well during the financial year. While there have been some changes in staffing over the years, the secretariat has retained a core staff for several years who contribute significantly to the Authority’s smooth running and reflect well on both the individuals and the Authority’s Registrar. Members and staff continue to enjoy excellent working relationships.

As in previous years, I wish to extend my thanks to Brian Lewis, the Registrar, and Gail Powell, the Senior Registrar, for their ongoing support and commitment to me as Chair and to the work of the RSAA.

CONCLUSION

Over the past financial year, the Authority has continued to receive the support of the Office of the Minister of Immigration. It is support which the Authority both values and appreciates.

Finally, I extend my thanks to the Deputy Chair of the Authority, Rodger Haines, QC for his consistent and valuable input into the work of the Authority, and to the Authority members for their continued commitment to a sound, fair and efficient appeals process.

…………………………………………………
Ema Aitken
Chair
Refugee Status Appeals Authority

APPENDICES TO ANNUAL REPORT 2006

Appendix A All decisions by nationality and gender, including minors

Appendix B All decisions by type and nationality, including minors

Appendix C All decisions for minors by nationality

Appendix D Membership (as at 30 June 2006)

Appendix E Financial disclosure

APPENDIX A

ALL DECISIONS BY NATIONALITY AND GENDER, INCLUDING MINORS

1 July 2005 to 30 June 2006

Nationality	Female	Male	FY Total	Percentage
Afghanistan	2	3	5
Algeria		1	1
Angola	1		1
Bangladesh	4	27	31	7.1%
Belarus	1		1
Brazil		1	1
Bulgaria		1	1
Chile	8	5	13	4.6%
China	2	8	10
Colombia	1	1	2
Congo	1	3	4
Czech Republic	12	9	21	5.7%
El Salvador	1	2	3
Eritrea		1	1
Ethiopia	2	3	5
Fiji	2	2	4
Hungary	3	3	6
India	14	45	59	14.25%
Iran	19	39	58	13.8%
Iraq	3	8	11
Israel	2	3	5
Jordan	3	5	8
Kuwait		1	1
Laos		2	2
Lebanon		2	2
Malaysia	4	3	7
Myanmar	3	2	5
Nepal	1	16	17	4.37%
Nigeria	1	6	7
Pakistan	2	11	13
Peru		1	1
Poland		1	1
Republic of Georgia		1	1
Romania		1	1
Russia	1	3	4
Serbia & Montenegro	3	1	4
Somalia	1	3	4
South Africa	3	1	4
Sri Lanka	12	22	34	8%
Stateless	1	1	2
Sudan	6	3	9
Syria	1	3	4
Turkey		1	1
Uganda	1	1	2
Uzbekistan	1		1
Vietnam		3	3
Yugoslavia	1	1	2
Zimbabwe	5	6	11
Grand Total	128	267	395

APPENDIX B

ALL DECISIONS BY TYPE AND NATIONALITY, INCLUDING MINORS

1 July 2005 to 30 June 2006

Nationality	Grant	Dismissal	Manifestly Unfounded	Withdrawals	FY Totals	%
Afghanistan		5		1	6
Albania				1	1
Algeria		1			1
Angola	1				1
Bangladesh		29	2		31	7.1
Belarus	1				1
Brazil		1			1
Bulgaria	1				1
Chile		12	1	7	20	4.6
China	4	5	1	2	12
Colombia		2			2
Congo		4			4
Czech Republic	8	13		4	25	5.7
El Salvador		3			3
Eritrea	1				1
Ethiopia	2	3			5
Fiji		2	2	9	13
Hungary		6			6
India		54	5	3	62	14.25
Iran	20	38		2	60	13.8
Iraq	5	6		1	12
Israel	1	2	2		5
Italy				1	1
Jordan	6	2			8
Kuwait	1				1
Laos		1	1		2
Lebanon	2				2
Malaysia	2		5		7
Myanmar	1	4			5
Nepal	4	13		2	19	4.37
Nigeria		7		1	8
Pakistan	3	10		2	15	3.45
Peru		1			1
Poland		1			1
Republic of Georgia	1				1
Romania			1		1
Russia		2	2		4
Serbia & Montenegro	4				4
Somalia	2	2		1	5
South Africa		4		1	5
Sri Lanka	2	31	1	1	35	8
Stateless	1	1			2
Sudan	1	8			9
Syria	2	2			4
Thailand			1		1
Turkey	1				1
Uganda		2			2
Uzbekistan		1			1
Vietnam		2	1		3
Yugoslavia		2			2
Zimbabwe	8	3		1	12
Grand Total	85	285	25	40	435

APPENDIX C

ALL DECISIONS FOR MINORS BY NATIONALITY

1 July 2005 to 30 June 2006

Nationality	Grant	Dismissal	Manifestly Unfounded	Withdrawals	FY Totals
Bangladesh		4			4
Chile		6		5	11
Czech Republic	2	7		1	10
El Savador		1			1
Fiji				4	4
Hungary		2			2
India		4	1		5
Iran	3	5			8
Iraq		1			1
Jordan	3				3
Pakistan		1			1
Russia			1		1
Serbia & Montenegro	1				1





Somalia	1				1
South Africa		1			1
Sri Lanka		9			9
Sudan		4			4
Zimbabwe	1				1
Grand Total	11	45	2	10	68

APPENDIX D

MEMBERSHIP (as at 30 June 2006)

Name	Expiry Date of Present Term
Aitken, Elizabeth Margaret	30.06.07
Andrew, Peter John	06.06.06
Baddeley, Josephine Gail (Dr)	05.09.08
Buddicom, Ruth Mary	28.02.07
Burson, Bruce Llewellyn	30.06.07
Dingle, Bridget Anne	31.01.09
Haines QC, Rodger	30.09.07
Hodgen, Michael Jonathan Crozier	28.02.07
Joe, Sharyn	30.06.07
Johns, Anna Jane	30.06.07
Millar, Paul James	30.06.07
Molloy, Andrew Nesbit	28.02.07
Murphy, Sarah Louise	30.06.07
Pearson, Grant Douglas	30.06.07
Plunkett, David James	30.06.07
Robins, Margaret Lesley	05.09.07
Roche, Martha Anne	30.06.10
Schaaf, Amelia	30.06.07
Shaw, Virginia Jane	30.06.07
Towle, Richard John	31.06.07
Treadwell, Charles Martin	30.06.07
Whata, Christian Nathanial	30.06.07

APPENDIX E

FINANCIAL DISCLOSURE

Fees received by each Member of the Refugee Status Appeals Authority for the period 1 July 2005 to 30 June 2006.

Member	Fees Paid ($)	Other Benefits ($)
Aitken, EM	169,509	1,206
Andrew, PJ	26,250
Andrews, PJ	51,875
Baddeley, JG Dr	118,515	109
Buddicom, RM	5,625
Burson, BL	115,876
Dingle, BA	109,040
Haines, RPG QC	152,525
Hastie, KBF	5,625
Hodgen, MJC	35,075
Joe, S	Nil
Millar, PJ	879
Molloy, AN	115,527
Murphy, SL	99,051
Pearson, GD	21,562
Plunkett, DJ	Nil
Robins, ML	25,937
Roche, MA	115,271	184
Schaaf, A	3,437
Shaw, VJ	89,638	1,044
Towle, RJ	103,445
Treadwell, CM	71,151
Whata, C	1,604