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 1999 This is an unofficial report presented to the Minister of Immigration along the lines required under Schedule 3C of the Immigration Act 1987, as introduced by Section 129N(8) of the Immigration Amendment Act 1999. The first official report will be required for the fiscal year ending 30 June 2000.
OVERVIEW The Authority has operated, since it was established in 1991, pursuant to Terms of Reference set out by Cabinet for the purposes of determination of refugee status in New Zealand. Those Terms of Reference did not call for an annual report to be prepared.
It is pleasing to the Authority membership that a legislative basis of refugee determination has now been statutorily established, to come into force from 1 October 1999. This includes the formal establishment of this Authority. The sixth Schedule to the Immigration Amendment Act 1999 sets out the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
Appeals Numbers
In the first half of the past fiscal year, the number of appeals being received by the Authority was historically quite low at approximately 40 per month. This allowed the Authority to reduce the total number of appeals awaiting determination from an opening figure of 193 to 167 as at 1 January 1999. Subsequent to the employment of a considerable number of additional refugee status determination officers by the Refugee Status Branch of the New Zealand Immigration Service in 1998, the level of their decision making has increased sharply from early 1999. This has resulted in the level of appeals received by the Authority rising to approximately 60 per month. The necessary time requirements for the setting down of hearings and then their determination by members is a period of between three and six months on average. This has meant that the total number of decisions outstanding for determination as at 30 June 1999 has risen to 333.
A total number of 578 appeals were received within the year. The Authority heard either by way of interview or on the papers, 459 appeals and decided 405 of these. Appeals were withdrawn by 25 appellants.
Since the Authority was established in 1991, it has finalised some 3,900 decisions. Of those, 665 have been granted refugee status, with the balance being declined or withdrawn appeals.
In the past fiscal year, 42 appeals have been allowed and 363 declined. At the motion of the RSB, the Authority has also dealt with two applications for revocation of refugee status. One of these applications was upheld.
During the past year, there were 98 cases found to be manifestly unfounded or clearly abusive. The level of such cases was particularly high in the first six months, but has dropped over recent months to approximately five per month. No trend can be taken from these figures, however, as the appeals that come to the Authority obviously merely reflect the mix of appellants processed by the Refugee Status Branch in the period immediately beforehand.
Membership
In 1998 the Authority was made aware of the increase in refugee status determination officers, that some 3,000 first instance decisions are still required to be made by the Refugee Status Branch, and of a continuing flow of new applications. Accordingly, after negotiations with the Minister of Immigration and Department of Labour for necessary resources, the Authority undertook an open advertising, merit appointment project to recruit additional members in order that the increased work flow could be handled without the Authority going into substantial back-log.
A reasonable number of applicants expressed interest in the work. From these, the Authority was able to identify five people who were considered would meet the criteria for the work (two full time and three part time). Unfortunately, this is less than the number of appointments that had been aimed for. The Authority is thus looking to keep a register open for potential applicants for Authority membership which can be viewed from time to time in order to obtain a sufficient number of members of the right calibre and experience.
The recommendations for the new appointments have been placed before the Minister of Immigration and it is hoped that the results of this will be available within one or two months.
With the exception of the Chair and Deputy Chairs, the terms of all members of the Authority expired on 30 June 1999. They were all re-appointed from 1 July 1999 for the terms set out below. The terms and conditions of appointment have yet to be finalised.
General Comments
Of particular significance over recent months has been the increased number of appeals lodged by appellants in custody. These have increased from approximately one per month in previous years to a level of more than one per week. Significant additional resources and processing by the secretariat and members are required to deal with these appeals promptly (recognising that if the appellants are refugees, then they should be held in custody no longer than is absolutely necessary).
Also noted in the past six months has been an awareness of a growing breadth in the countries of origin from which the appellants come to this country.
The Authority updated its Practice Notes in early 1999 and these are set out in full in Practice Note 1/99 which is available from the secretariat for all interested parties.
FUNCTIONS AND PROCEDURES The Authority operates as an independent decision-making body of review. Pursuant to the Cabinet Rules and Schedule 3C of the Immigration Act recently introduced, the Authority is serviced by employees of the Department of Labour (DOL), not being employees who are currently 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 Schedule 3C, recently introduced, the Authority will operate as a Commission of Inquiry under the Commissions of Inquiry Act 1908 as from 1 October 1999.
Current Rules for determination and the new Section 1290 set out that a person who has been declined refugee status by a refugee status officer within the New Zealand Immigration Service may appeal to this Authority against the officer's decision. In addition to the hearing of appeals, the Authority also has the function of determining applications made by refugee status officer as to whether the Refugee Convention has ceased to apply in terms of Article 1C of the Convention, or a person should cease to be recognised as a refugee where the earlier recognition by the Authority may have been procured by fraud, forgery, false or misleading representation or the concealment of relevant information. Also the Authority may consider whether any of the Articles 1D, 1E or 1F of the Convention should be applied to exclude a person from the protection of the Convention, where refugee status was recognised by the Authority in the past and matters may not have been properly considered by the Authority for any reason, including 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. The decision of the Authority, once notified to an appellant, is final..
1998/1999 FISCAL YEAR ACTIVITIES Appeals Received and Processed
Full details of the Authority' s statistics are set out the Schedules to this report.
Membership
No new members were appointed to the Authority during the fiscal year. As stated, recommendations for a small number of new members are being processed. With the exception of the Chairperson and two Deputy Chairpersons, all other members were re-appointed from 1 July 1999. Details of all membership is set out in the Schedule below.
Members Days per month on Authority Work (approximate) Expiry Date of Warrant Elizabeth Aitken* 7-8 days 1 July 2003 Rodger Haines QC (Deputy Chairperson) 10-12 days 1 October 2003 Sharyn Joe* 16 days 1 July 2003 Judge Allan Lawson 8 days 1 January 2001 Allan Robert Mackey* (Chairperson) 12 days 1 January 2000 Gerard McCoy - Christchurch 2-3 days 1 July 2002 Paul Millar* 16 days 1 July 2003 Carol Parker* 16 days 1 July 2003 David Plunkett* 16 days 1 July 2003 John Priestley QC (Deputy Chairperson) 8 days 1 October 2003 Jonathan Moses 3-4 days 1 July 2002 Shelley Sage* 8 days 1 July 2002 Virginia Shaw* 15-16 days 1 July 2003 Charles Martin Treadwell* 16 days 1 July 2003 Lisa Tremewan* 16 days 1 July 2003 * Also serve on other immigration/refugee Appeal Authorities.
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.
Status Since Establishment in 1991
Appeals/Registered Withdrawn/Out of Time Other Determinations Decisions Published 4,236 902 6 3,001
Appeals Allowed Appeals Declined Determinations Outstanding 665 2,330 333 Alan Mackey
Chairperson
Refugee Status Appeals Authority
Schedule 1 Appeals Received and Determined
Month Opening Stock Appeals Received Appeals Actually Heard Appeals Decided Appeals Withdrawn /OOT Declined Approved CA/MU Closing Stock July-98 185 41 41 32 1 29 3 10 193 Aug-98 193 22 60 70 1 65 5 34 144 Sep-98 144 19 43 43 2 43 0 11 118 Oct-98 118 41 28 16 0 12 4 2 143 Nov-98 143 60 35 39 4 36 3 5 160 Dec-98 160 49 28 48 3 41 7 7 158 Jan-99 158 25 25 15 1 15 0 6 167 Feb-99 167 69 42 24 3 23 1 7 209 Mar-99 209 77 38 32 2 28 4 6 252 Apr-99 252 70 23 32 3 27 5 4 287 May-99 287 48 50 24 1 21 3 6 310 Jun-99 310 57 46 30 4 23 7 0 333 Total for Year 578 459 405 25 363 42 98 OOT - Out of Time
CA/MU - clearly abusive or manifestly unfounded.
Schedule 2 Breakdown of Appeals by Country of Origin From July 1998 to June 1999
Country Jul Aug Sept Oct Nov Dec Jan Feb Mar Apr May Jun Total Algeria 1 1 2 1 1 6 Bangladesh 2 1 3 Bulgaria 3 3 Cambodia 2 1 3 China 7 15 13 2 12 15 3 4 7 7 7 10 102 Czech Republic 1 3 4 Ethiopia 1 1 2 Fiji 4 15 6 1 2 2 30 Ghana 1 1 2 Hong Kong 3 1 4 India 5 12 8 5 4 6 1 4 3 7 2 5 62 Indonesia 2 1 1 4 3 3 1 15 Iran 2 5 1 2 2 3 2 5 3 1 4 30 Iraq 1 1 Japan 1 1 2 4 Kazakhstan 1 1 4 1 7 Liberia 1 2 1 4 Morocco 1 1 2 Malaysia 1 2 3 Nepal 1 2 1 1 5 Nigeria 1 2 2 1 1 7 Pakistan 1 1 1 3 Peru 3 1 4 Poland 1 1 Romania 1 1 Russian Federation 4 1 5 1 1 1 1 14 Sierra Leone 1 1 Somalia 1 1 1 3 South Africa 1 1 2 South Korea 6 8 4 4 8 6 6 42 Sri Lanka 3 1 2 6 Taiwan 2 1 3 Thailand 1 1 2 1 1 6 Tonga 2 2 Ukraine 1 1 1 3 Vietnam 1 1 3 2 2 3 12 Yemen 1 1 unknown 1 1 Appeals Decided 32 70 43 16 38 49 15 25 35 33 22 26 404
Schedule 3 Article 1F Exclusion Decisions
Country Number Male Female India* 1 1 Thailand* 1 1 South Africa* 1 1 Total 3 2 1 * Unsuccessful for other reasons also
Schedule 4 Female Appellants July 1998 to June 1999
Country Number Allowed Dismissed Non-appearance Manifestly Unfounded Cambodia 1 1 China 25 2 23 1 4 Czech Republic 1 1 Fiji 10 10 7 Hong Kong 2 2 India 1 1 Indonesia 2 2 Iran 6 3 3 Japan 3 3 3 Kazakhstan 2 2 Malaysia 2 2 1 Peru 1 1 Russian Federation 3 3 South Korea 24 24 3 10 Taiwan 2 2 1 2 Thailand 3 3 2 Tonga 1 1 1 Unknown 1 1 Total 90 9 81 5 30 Schedule 4 continued Male Appellants July 1998 to June 1999
Country Number Allowed Dismissed Non-appearance Manifestly Unfounded Algeria 6 3 3 Bangladesh 4 1 3 Bulgaria 3 3 Cambodia 2 2 1 China 76 4 72 9 18 Czech Republic 4 4 1 Ethiopia 2 1 1 Fiji 21 21 2 16 Ghana 2 2 Hong Kong 2 2 1 India 61 9 52 2 9 Indonesia 13 13 3 Iran 21 9 12 Iraq 1 1 Japan 1 1 1 Kazakhstan 5 5 Liberia 4 4 3 Malaysia 1 1 Morocco 2 2 Nepal 4 4 1 Nigeria 7 7 1 Pakistan 3 3 1 1 Poland 2 2 Peru 3 3 Romania 1 1 Russian Federation 12 4 8 2 Sierra Leone 1 1 Somalia 3 2 1 1 South Africa 2 2 South Korea 19 19 6 8 Sri Lanka 6 6 Taiwan 1 1 1 Thailand 3 3 2 1 Tonga 1 1 1 Ukraine 3 1 2 Vietnam 12 1 11 6 2 Yemen 1 1 Total 315 36 279 35 65 Schedule 5 Minors/Children July 1998 to June 1999
Country Allowed Declined Male Female Russia 2 0 0 2 Total 2 0 0 2 Schedule 6 JUDICIAL REVIEWS
Judicial Reviews (Applications filed with High Court) 5 (all in 1998) Allowed 0 Dismissed 1 Settled 2* Struck out 1 Outstanding 2 * One JR settled related to an ICOR decision (ie Interdepartment Committee on Refugees which determined status prior to the RSAA establishment in 1991).
There have been 43 judicial reviews filed since the RSAA was established.