Refugee Status Appeals Authority

PO Box 90251, Auckland, New Zealand
Telephone (09) 914 4299 Facsimile (09) 914 5263
 
 

ANNUAL REPORT TO 30 JUNE 2004

This is the fifth 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) issued 569 decisions and reduced its “managed backlog”, being appeals lodged before 1 October 2002, from 395 to 205.

The Authority started the financial year with 741 undecided appeals carried over from the previous financial year and ended the year with 625 such appeals.

550 new appeals were received, 561 appeals heard and 569 decisions published.  Including withdrawn appeals and the one appeal which the Authority refused to consider, 666 appeals were finalised.  Sixteen percent of the decisions upheld the appeal and granted refugee status.

Warrants were conferred on eight new members, both part time and full time, during the last financial year.  These members received comprehensive training and most made a significant contribution to the work of the Authority over the financial year.

On 26 March 2004 the new premises of the Authority were formally opened by the United Nations High Commissioner for Refugees, His Excellency Ruud Lubbers and the Honourable Paul Swain, Minister of Immigration.  This was a welcome event given the previously cramped and unsatisfactory premises at Waverly Street.

The work of the Authority has been more in the public arena this year than previous years.  Its processes and location within the Department of Labour were the subject of discussion by the Law Commission in its report on all state-based adjudicative bodies in New Zealand.  The Authority’s work was also the subject of media publicity and public comment, both positive and adverse.

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 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

Although the number of decisions published in this financial year is similar to the total of the previous financial year, the total this year includes a significantly higher number of substantive determinations relative to those determined through the more streamlined manifestly unfounded procedure.  This was due not only to the increased expertise of the membership but to a change in caseflow management put in place by the secretariat at my direction.

On my appointment as Chair, I assumed the active role in caseflow management of my predecessor.  It became apparent, however, that it was not appropriate for the Chair to have such a high level of operational involvement and the appointment of Natasha Narayan as Service Leader of Operations, who brought with her particular skills in case management, provided the opportunity to refocus our approach to hearings.  By year’s end, all members had a more manageable flow of work which enabled them to better manage their time and the Authority was scheduling appeals up to three months in advance, providing certainty for counsel and appellants as well as the Authority.  The Service Leader of Operations continues to actively manage the hearing schedule.

Of the 569 appeals decided in this financial year, 91 appellants were granted refugee status (16% of all appeals decided) and 478 appeals were declined (84%).

Since the Authority was established in 1991, it has received a total of 7947 appeals and made 5930 decisions (1380 appeals were withdrawn).  Of the 5930 decisions published, 997 appeals have been allowed and 4933 have been dismissed. The average percentage of allowed appeals over that time is 16.8%, similar to the 16% allowed this reporting year.

There was a significant decrease in the number of manifestly unfounded claims determined during this financial year.  Such claims had a minimal impact on the hearing programme of the Authority as our procedures are refined and strike an appropriate balance between fairness and efficiency.

The Authority dealt with 68 second or subsequent appeals including seven from appellants held in custody.  Seven of these appeals were withdrawn and the Authority refused to consider one appeal.  Of the 60 remaining appeals, four were approved.  In general terms,   such appeals do not presently have a significant impact on the hearing programme.  The statutory criteria which must be satisfied before a second appeal is competent are strict3 and the Authority remains watchful for abuse.

Overall, the Authority heard and determined appeals lodged by nationals from 64 countries.  Nationals of Thailand generated the highest percentage of appeals determined (11.7%), followed by nationals of India (11.4%), Iran (10%), Sri Lanka (6.1%) and the Czech Republic (5.8%).  59 other nationalities accounted for the remaining 55% of decisions.  Details of appeals determined, including statistics by country and gender, are contained in Appendices A-C.

During the year the Authority received three cases involving decisions taken by the Refugee Status Branch (RSB) cancelling the grants of refugee status to members of one family and one application by the RSB to cancel the grant of refugee status by this Authority, involving another member of the same family.  In reissuing its Practice Note early in 2004, the Authority included in it directions for dealing with revocation/cancellation cases.  While the Authority has received only a small number of such cases since its inception, they are an important part of our work as they provide a process to challenge decisions made by either the RSB or the Authority where new and material evidence becomes available.  The integrity of the refugee determination process can only be enhanced by the vigorous pursuit of cases where evidence exists that the grant of refugee status may have been obtained fraudulently.

During the course of the financial year, 15 decisions of the Authority were subject to judicial review.  Of these, one was allowed, three were withdrawn or discontinued, eight were dismissed, and three unresolved at year’s end.

The Immigration Service continued to detain a significant number of appellants, in either New Zealand prisons or the Mangere Accommodation Centre and to release others from these institutions into the community on conditions.  A total of 87 appeals from claimants either in detention or on conditional release were received during this financial year.  70 such appeals were determined.  These appeals are given priority in the Authority’s hearing schedule.  As in previous years, the claims of this group of appellants tended to raise complex credibility and country condition assessments.

There has been, in general terms, a perceptible change in appeals presented to the Authority, with appellants in general raising more complex issues than in previous years, for a variety of reasons.  Further, the events of the past 24 months have highlighted on the international stage the need for accurate information from reliable sources in determining issues relating to the background and status of claimants, as the ability of the Authority to accurately determine particularly complex appeals relates not only to the competence and training of its members, but to the quality and range of information available to it.

In terms of access to relevant country information, the Authority is well-served by the Refugee Status Library (Nicholson Library) which is staffed by four highly qualified research librarians led by Pamela Dentice.  Their skill in accessing relevant, current and reliable country information is pivotal to the Authority’s ability to deliver quality decisions in a timely manner.  The Authority is further assisted by its four legal associates who provide members with legal and other research.

On occasion the Authority received from New Zealand agencies information specific to an individual appellant.  The Authority is restricted by the principles of natural justice to receiving only information which can be disclosed to appellants, as our obligation of fairness requires they be given an opportunity to comment on any adverse evidence.  Whether a wider range of relevant information can be made available to the Authority in future is a matter worthy of consideration, given that refugee status determination plays a not insignificant role in New Zealand’s wider border security and control.

BUDGET

The expenditure for both the Authority’s secretariat and its members was well controlled within appropriation.  The budget included resources for dealing with the backlog which was sealed on 1 October 2002.  As noted, by year’s end the backlog had been further reduced by 190 appeals. This rate of progress is well in advance of predictions and the Authority is confident of its ability to eliminate the backlog within the three year funding period while at the same time ensuring that newly lodged appeals are being heard and determined within an acceptable timeframe.

AUTHORITY MEMBERSHIP

It was a pleasure to recommend the appointment of David Plunkett to the position of full-time Deputy Chair of the Authority.  His appointment took effect from 1 November 2003.  While Rodger Haines, QC has been a Deputy Chair since 1994 he is a part-time member and his role as Deputy is primarily in training and the development of our jurisprudence.

I regard it as desirable that the Chair retain a caseload of appeals, but it became apparent the administrative and other functions of the Chair were jeopardising my ability to do this.  The appointment of a full-time Deputy Chair allows me to share the burden of administration, and the Authority as a whole to benefit from the skills he brings to the job.  It also enabled me to take an extended period of leave during which David Plunkett served as Acting Chair.

Jo Baddeley was appointed as a senior member of the RSAA, having joined the Authority in 1999.

All senior members handled a heavy workload of complex cases, often under tight timeframes.  They also played a significant role in the mentoring and training of new members.  I gratefully acknowledge their efforts and their commitment to maintaining the high professional standards of the Authority’s decision-makers.

In March 2004 Rodger Haines QC (Deputy Chair) chaired the Third Colloquium on Challenges in International Refugee Law convened by the Programme in Refugee and Asylum Law, University of Michigan Law School, Ann Arbor.  The Colloquium brought together nine invited refugee law experts to consider the question whether there is a subjective aspect to the “well-founded fear” element of the refugee definition.  In answering this question in the negative, the panel of experts implicitly endorsed the Authority’s longstanding jurisprudence on this point.

For the second successive year the Authority hosted 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 seconding of Fellows to the Authority was instigated by Professor James C Hathaway, one of the pre-eminent refugee scholars in the world today and director of the Programme in Refugee and Asylum Law at the University of Michigan Law School.  The Authority welcomes and appreciates the growing international interest in our refugee jurisprudence and the fostering of significant links with international scholars and institutions.

The Authority recruited eight new members at the end of the last financial year.  Regrettably, some new members did not deliver on their promised commitment to the Authority work, and some existing full-time and part-time members reduced their time commitment.  With the resulting overall decrease in dedicated FTEs (full time equivalents) for the Authority’s decision-making work, it was necessary to commence the recruitment of two full-time members.

For a full list of members as at 30 June 2004, and their remuneration, see Appendices D and E.

AUTHORITY ACTIVITIES

The year saw the move of the Authority premises from Waverly to Albert Street in Auckland.  This was a welcomed development, as the Authority had outgrown the space available to it at Waverly Street.  In late March we celebrated the formal opening of the new premises with the United Nations High Commissioner for Refugees, Ruud Lubbers, the Minister of Immigration, the Honourable Paul Swain, and a number of other guests.  The new premises are a substantial improvement on previous accommodation, being more conveniently situated for all parties to the appeal process, and comprising five hearing rooms and more appropriate space for the membership and secretariat.  The complicated move was ably managed by the Registrar, Brian Lewis who, with his characteristic organisational ability and attention to detail, ensured that it occurred with no significant interruption to the work of the Authority.

As in past years, members of the Authority continued their involvement with the International Association of Refugee Law Judges (IARLJ), some of us attending the Australasian Chapter meeting in Sydney in June.  Involvement with the IARLJ offers members a unique opportunity to exchange views with other refugee decision-makers around the world and is therefore an important development opportunity for them.

At the invitation (and expense) of the United Nations High Commission for Refugees (UNHCR), one member, Paul Millar, spent eight weeks working with UNHCR in its Kuala Lumpur office reviewing decisions made by UNHCR decision-makers.  This provided a useful opportunity for the member to work in a different environment and with asylum seekers from a different range of countries than those normally seeking asylum in New Zealand.

The Authority maintains a close relationship with the UNHCR through liaison with its Canberra office.  Our experienced membership is now well-placed to assist UNHCR in a variety of ways, in particular the training of new participants in refugee determination processes in the Pacific.

The year saw a change in the Minister of Immigration with the resignation of the Honourable Leanne Dalziel in early 2004.  The Authority had benefited from the support of Ms Dalziel who brought hard work, passion and commitment to refugee issues.  She was replaced by the Honourable Paul Swain who has already demonstrated his support for maintaining and improving the refugee determination process.  I look forward to working with him in the forthcoming year.

In March 2004, following its review of the structure and operation of all state-based adjudicative bodies in New Zealand, the Law Commission published its report ‘Delivering Justice for All: A Vision of New Zealand Courts & Tribunals’.  It recommended that the work of New Zealand’s tribunals, including this Authority, be integrated within a unified tribunal framework, administered by the Ministry of Justice to ensure the independence of tribunals both exists and is seen to exist.

On the issue of independence, the Law Commission made specific mention of the Authority (together with the two immigration tribunals, the Residence Review Board and the Removal Review Authority).  In observing that we are housed, resourced and administered by the Department of Labour (being the state agency affected by our decisions) the Commission opined that there is a risk that we may not “enjoy the full confidence of those whose appeals we hear” as we may be seen as “another tier” of the Department of Labour.

While I am confident that the decisions made by the members of the Authority are entirely independent of the Department (and the government generally) I share this concern in terms of public perception.  I endorse the Law Commission’s (effective) recommendation that the Authority be transferred to the Ministry of Justice.

Without expressing a view on the recommendation of a unified tribunal structure, I consider there is scope for some integration of refugee and immigration appellate processes which would result in more efficient final determination of the status of foreign nationals in New Zealand without compromising the standards and integrity of the refugee determination process.

The past financial year was unique in my experience for the volume and range of public comment, including some from politicians and lawyers, about the decisions of the Authority and, on occasion, its membership.  These comments have been wide-ranging and often inaccurate.

The Authority acknowledges legitimate public interest in our processes.  However, ill-informed or misleading criticism may have the effect of undermining the integrity of the Authority and the credibility of the refugee determination process generally, which is both fair and robust.  The Authority is an independent and impartial tribunal which takes no sides in any appeal but determines each case on the evidence available to it, and in accordance with the rules of natural justice and the legal criteria for refugee status.  It must apply the highest standards of fairness in its procedures4 and extend to each appellant the benefit of any reasonable doubt.

CONFIDENTIALITY

Every aspect of the refugee determination process is confidential5 and should remain so even when the final determination is to decline refugee status.  Parliament has specifically enacted Section 129T to ensure that refugee appellants can make full disclosure, and decisions are reached on consideration of all relevant facts.  Public comment about any individual which includes his or her name or other identifying details not only breaches the confidentiality of the individual and/or family members but can put at risk members of the appellant’s family in their home country.

Section 129T serves another important function.  Public comment identifying a refugee claimant (including one whose claim to refugee status has failed) can create in that person’s home country a real chance of persecution for one of the reasons listed in the Refugee Convention 1951.  In such circumstances, the Authority is obliged to recognise the person as a refugee, irrespective of how groundless the original claim might have been.  In prohibiting public disclosure of identifying details, Section 129T protects New Zealand from those who seek to undermine the integrity of the refugee determination process in such a way.

THE AUTHORITY'S SECRETARIAT

This financial year saw a number of changes within the secretariat but, thanks to the good management of the Senior Registrar, Gail Powell, the Registrar, Brian Lewis and the Service Leader, the work of the membership was largely unaffected.  The hearing schedule was tightly managed, and the work produced within the secretariat was of its usual high standard.  At all relevant levels, however, there appears to be a recognition that the perception of independence will be enhanced if the Authority is serviced by a department other than the Department of Labour.

CONCLUSION

It has been a varied but productive year for the Authority.  Publicity has highlighted the need for more public awareness about the nature of refugee status determination, and international awareness has emphasised the need for the continued provision of relevant information to refugee decision-makers.  A long-standing constitutional issue, highlighted by the Law Commission, is our perceived lack of independence which I am hopeful will be addressed this financial year.  I remain confident that the public is well-served by the membership and secretariat of the Authority and that we, in turn, enjoy its confidence in undertaking this demanding but important function.




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



APPENDICES TO ANNUAL REPORT 2004 

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 2004)

Appendix E  Financial disclosure


APPENDIX A

ALL DECISIONS BY NATIONALITY AND GENDER, INCLUDING MINORS


Nationality
Female
Male
FY Total
Afghanistan
0
6
6
Albania
1
2
3
Algeria
0
6
6
Argentina
0
2
2
Azerbaijan
0
1
1
Bangladesh
2
15
17
Brazil
2
2
4
Bulgaria
1
1
2
Cambodia
0
2
2
Cameroon
0
1
1
Chile
12
6
18
China
9
22
31
Colombia
1
2
3
Congo
8
5
13
Cuba
0
2
2
Czech Republic
19
20
39
Ecuador
2
2
4
Egypt
1
5
6
Eritrea
2
1
3
Ethiopia
1
2
3
Fiji
2
6
8
Ghana
0
2
2
Great Britain
0
1
1
Guinea
0
1
1
Hungary
12
14
26
India
11
65
76
Indonesia
2
3
5
Iran
11
56
67
Iraq
3
21
24
Israel
1
5
6
Jordan
0
1
1
Kuwait
0
4
4
Kyrgyzstan
1
0
1
Latvia
0
1
1
Lebanon
1
1
2
Liberia
0
2
2
Malaysia
8
15
23
Morocco
0
3
3
Myanmar
0
5
5
Nepal
1
12
13
Nigeria
3
7
10
Pakistan
2
20
22
Papua New Guinea
0
1
1
Peru
2
2
4
Russia
0
2
2
Saudi Arabia
0
1
1
Sierra Leone
0
4
4
Singapore
0
1
1
Solomon Islands
1
2
3
Somalia
0
1
1
South Africa
2
4
6
Sri Lanka
10
31
41
Sudan
0
2
2
Syria
0
2
2
Taiwan
1
0
1
Thailand
30
48
78
Togo
1
1
2
Turkey
3
7
10
Ukraine
0
2
2
Uruguay
0
1
1
USA
1
0
1
Vietnam
1
4
5
Yugoslavia
0
1
1
Zimbabwe
7
21
28
Grand Total
178
488
666


APPENDIX B

ALL DECISIONS BY TYPE AND NATIONALITY, INCLUDING MINORS


Nationality
Grant
Dismissal
Excluded
Dismissal
Manifestly
Unfounded
 Withdrawals
FY Totals
Afghanistan

3
1

2
6
Albania

3



3
Algeria
4
2



6
Argentina

1


1
2
Azerbaijan

1



1
Bangladesh

14


3
17
Brazil

1

3

4
Bulgaria

2



2
Cambodia

1

1

2
Cameroon




1
1
Chile

10

1
7
18
China
1
17

10
3
31
Colombia
2
1



3
Congo
5
5


3
13
Cuba
2




2
Czech Republic
13
19


7
39
Ecuador

4



4
Egypt
1
5



6
Eritrea

3



3
Ethiopia
2
1



3
Fiji

2

4
2
8
Ghana

2



2
Great Britain



1

1
Guinea
1




1
Hungary
1
17


8
26
India

57

4
15
76
Indonesia

2

2
1
5
Iran
25
41


1
67
Iraq
5
18


1
24
Israel

1

3
2
6
Jordan




1
1
Kuwait

3


1
4
Kyrgyzstan
1




1
Latvia

1



1
Lebanon

2



2
Liberia

1


1
2
Malaysia

5

15
3
23
Morocco

2


1
3
Myanmar
3
2



5
Nepal
2
10


1
13
Nigeria

9


1
10
Pakistan

16

1
5
22
Papua New Guinea

1



1
Peru

4



4
Russia




2
2
Saudi Arabia

1



1
Sierra Leone

3


1
4
Singapore



1

1
Solomon Islands

3



3
Somalia
1




1
South Africa

3


3
6
Sri Lanka
1
37


3
41
Sudan
2




2
Syria
2




2
Taiwan



1

1
Thailand

5

65
8
78
Togo

2



2
Turkey
1
8


1
10
Ukraine
1
1



2
Uruguay




1
1
USA



1

1
Vietnam

4


1
5
Yugoslavia




1
1
Zimbabwe
15
8


5
28
Grand Total
91
364
1
113
97
666


APPENDIX C

ALL DECISIONS FOR MINORS BY NATIONALITY

Nationality
Grant
Dismissal
Excluded
Dismissal
Manifestly
Unfounded
Withdrawals
FY Total
Bangladesh

1



1
Chile

5


4
9
Congo
2
2



4
Czech Republic
2
7


1
10
Ecuador

2



2
Egypt

2



2
Eritrea

2



2
Hungary

2


1
3
India

5

2

7
Indonesia

1



1
Iran

5



5
Iraq

2



2
Israel



1

1
Malaysia

1



1
Nigeria

1



1
Pakistan

3



3
Peru

1



1
Solomon Islands

1



1
South Africa

1


1
2
Sri Lanka

5



5
Togo

2



2
Grand Total
4
51

3
7
65


APPENDIX D

MEMBERSHIP (as at 30 June 2004)

Name
Expiry Date of Present Term
Aitken, Elizabeth Margaret
30.06.07
Andrew, Peter John
06.06.05
Andrews, Pamela Jean
30.06.07
Baddeley, Josephine Gail (Dr)
05.09.04
Buddicom, Ruth Mary
28.02.07
Burson, Bruce Llewellyn
30.06.07
Fitzgibbon, Anna Mary
06.06.05
Haines QC, Rodger
30.09.07
Hastie, Kim Bernadette Frances
30.06.07
Hodgen, Michael Jonathan Crozier
28.02.07
Joe, Sharyn
30.06.07
Johns, Anna Jane
30.06.07
Klippel, Bronwen Louise
28.02.07
McCoy, Gerard John Xavier
31.12.04
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
05.09.05
Schaaf, Amelia
30.06.07
Shaw, Virginia Jane
30.06.07
Tamatekapua, Prudence Jane
05.09.05
Treadwell, Charles Martin
30.06.07
Tremewan, Lisa
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 2003 to 30 June 2004.


Member
Fees Paid ($)
Other Benefits ($)
Aitken, EM
151,916

Andrew, PJ
61,562

Andrews, P
48,953

Baddeley, JG Dr
118,645
380
Buddicom, RM
28,750

Burson, B
91,437

Fitzgibbon, AM
2,656

Haines, R QC
183,919

Hastie, K
75,258

Hodgen, MJC
73,303

Joe, S
50,701

Johns, A
11,875

Klippel, BL
18,881

Lawson, AB Judge
31,250

McCoy, GJX
0

Millar, P
78,692

Molloy, AN
113,822

Murphy, S
83,371

Pearson, GD
59,688

Plunkett, DJ
145,923

Robins, ML
60,134

Roche, MA
102,691
Includes $6,720 parental leave
paid relating to previous year.
Schaaf, A
32,813

Shaw, VJ
105,492

Tamatekapua, PJ
1,216

Treadwell, CM
102,542

Tremewan, L
97,718

Whata, C
10,625




1  Clause 5, Schedule 3C Immigration Act 1987
2  Clause 2, Schedule 3C Immigration Act 1987
3  S129J & s129P(9) Immigration Act 1987
4  Khalon v Attorney General [1996] 1 NZLR 458
5  s129T Immigration Act 1987