ANNUAL REPORT TO 30 JUNE 2007

This is the eighth 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) resolved 226 appeals. At the commencement of the year, there were 165 undecided appeals. That number had been reduced to 110 by the end of the year. One hundred and seventy-one new appeals were received, the lowest number of appeals received in any financial year since the inception of the Authority.

There were changes to the Authority membership, including the appointment of the Chairperson, Ema Aitken, to the District Court, after some 10 years excellent service with the Authority. The members and staff congratulate her and wish her well on her judicial career. Rodger Haines, QC was Acting Chairperson from 27 January 2007 to 20 August 2007. Allan Mackey was appointed as Chairperson after the year under review. Considerable effort was devoted by the Chairperson, and Deputy Chairperson in particular, to consultations on matters of process in the changes proposed under the Immigration Bill 2007.

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 244 applications compared with 317 applications in 2005/2006, 395 applications in 2004/2005 and 713 applications in 2003/2004. The Authority received 171 new appeals in this financial year, compared with 256 appeals in 2005/2006, 360 appeals in 2004/2005 and 550 appeals in 2003/2004.

Having carried over 165 appeals from the previous financial year, the Authority finally determined 226 appeals, with 110 carried over into the 2007/2008 financial year. Of the 226 appeals finalised, 35 were withdrawn, resulting in 191 published decisions. Fifty-six of those persons were granted refugee status (29%) and 135 declined (71%). In the 2005/2006 financial year the percentages were 22% and 78% respectively.

Forty-two of the 191 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 8,734 appeals and published 7,086 decisions (the balance being appeals awaiting determination and those withdrawn (1,526) or otherwise disposed of (12)). Of the total decisions published by the Authority since 1991, 1,281 have been granted and the balance, 5,805, have been dismissed. The average percentage of appeals allowed since the Authority was established is 18.08%. 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 40 countries. Nationals of Iran generated the highest percentage of appeals determined (21%), followed by nationals of Sri Lanka (10.2%), Czech Republic and Fiji (6.2%), Bangladesh and India (5.3%) and Slovakia (4.4%). Details of appeals determined, including statistics by country and gender, are contained in Appendices A to C.

The average age of appeals in flow continued to trend down from previous years. At 30 June 2007, 85% of appeals on hand were aged 3.19 months. The remaining 15% of appeals pushed the overall average age to 6.4 months. The average age of appeals at the date of decision was 9.36 months, compared to 10.08 months in the previous financial year.

Seven manifestly unfounded appeals were determined in this financial year, compared with 25 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, one judicial review application was pending. In the course of the year, seven applications were determined by the High Court. Of these, two were dismissed, one was allowed, three were discontinued and one was 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 21 further cases. Of these, 14 were appeals against decisions of the RSB cancelling its own earlier decisions and seven were applications to the Authority to cancel its earlier decisions to grant refugee status.

Twenty-two cancellation decisions were made, one case was withdrawn and there were 20 cases pending at the end of the financial year. Of the 23 cancellation cases determined, the Authority was satisfied that, in all but four 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 82% of cases determined by formal decisions).

In general, and consistent with the previous financial year, many 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 Research and Information Branch 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 remained well within appropriation.       

AUTHORITY MEMBERSHIP

While there were 20 warranted members during this financial year, 11 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.

Ema Aitken, Chairperson, resigned her warrant to take up her appointment to the District Court and Richard Towle left to take up the position of UNHCR Regional Representative in Canberra.

Two member warrants expired during the year and a further 10 on 30 June 2007. Of these, nine were not renewed. Some members of the Authority hold warrants on other immigration tribunals: the Deportation Review Tribunal, the Removal Review Authority (RRA) and the Residence Review Board (RRB). Given that some of those tribunals had substantial backlogs at the start of the financial year, member capacity was shifted from the RSAA to them. This assisted all tribunals in managing current work flows. Cross-appointments and part-time membership have proved effective mechanisms for managing what is, of its nature, an unpredictable flow of work to the RSAA and the other tribunals.

For a full list of members as at 30 June 2007, 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.

The Authority welcomed the move taken during the financial year to relocate the Secretariat within the DOL reporting lines from Workforce (NZI) to the Legal and International Group headed by Graeme Buchanan, Deputy Secretary of Labour. This further reinforces the independence of the Authority and is a significant step in removing any perception that the Secretariat might have been placed in a conflict of interest situation between their responsibilities to the Authority and those owed to Workforce in relation to their reporting lines. The new independent reporting lines are working well.

I should like to take this opportunity of recording the Authority's appreciation to Graeme Buchanan and his Group Manager, Gail Powell, for the tremendous support provided to the Authority, and, in particular, to the Acting Chair, over the last year. 

CONCLUSION

Recognition must be made of the Deputy Chair of the Authority, Rodger Haines, QC for his consistent and valuable input into the work of the Authority and, in particular, his excellent work as Acting Chairperson over the period January to August 2007. Thanks are also due to the Authority members for their continued commitment to a sound, fair and efficient appeals process. 

 

 

…………………………………………………

A R Mackey
Chairperson

Refugee Status Appeals Authority

[1] Clause 5, Schedule 3C Immigration Act 1987

[2] Clause 2, Schedule 3C Immigration Act 1987

 

APPENDIX “A”

All decisions by nationality and gender, including minors

1 July 2006 to 30 June 2007

Nationality Female Male Fy total %
Afghanistan - 1 1  
Albania - 1 1  
Algeria - 1 1  
Bangladesh 2 10 12 5.30%
Bahrain - 1 1  
Brazil 2 3 5  
Bulgaria 2 2 4  
China - 1 1  
Congo - 1 1  
Czech Republic 5 9 14 6.20%
Egypt - 1 1  
Eritrea - 1 1  
Fiji 6 8 14 6.20%
Hungary 1 3 4  
India 2 10 12 5.30%
Iran 8 39 47 21%
Iraq 2 6 8  
Israel 2 3 5  
Jordan 1 3 4  
Korea - 1 1  
Kuwait 1 - 1  
Kyrgyzstan 2 2 4  
Malaysia 2 - 2  
Mali - 1 1  
Nepal 1 6 7  
Nigeria - 1 1  
Pakistan 2 7 9  
Palestine - 2 2  
Romania - 1 1  
Saudi Arabia - 1 1  
Serbia  1 - 1  
Sierra Leone 1 1 2  
Slovakia  6 4 10 4.40%
Somalia - 2 2  
South Africa - 1 1  
Sri Lanka 8 15 23 10.20%
Sudan - 2 2  
Syria 4 4 8  
Vietnam 1 5 6  
Zimbabwe 3 1 4  
Grand Total 65 161 226  

 

APPENDIX “B”

All decisions by type and nationality, including minors

1 July 2006 to 30 June 2007

NATIONALITY
GRANT
DISMISSAL
EXCLUDED DISMISSAL
OR
REFUSED TO CONSIDER
MANIFESTLY
UNFOUNDED
WITH-
DRAWALS
FY TOTALS
             
Afghanistan 1         1
Albania         1 1
Algeria   1       1
Bangladesh   8   4   12
Bahrain 1         1
Brazil 1       4 5
Bulgaria 4         4
China 1         1
Congo   1       1
Czech Republic 2 3     9 14
Egypt   1       1
Eritrea 1         1
Fiji   6   3 5 14
Hungary         4 4
India 2 6     4 12
Iran 8 37     2 47
Iraq 8         8
Israel 2 3       5
Jordan 1 3       4
Korea 1         1
Kuwait   1       1
Kyrgyzstan 4         4
Malaysia   2       2
Mali         1 1
Nepal 3 3     1 7
Nigeria   1       1
Pakistan 4 4     1 9
Palestine   1     1 2
Romania   1       1
Saudi Arabia   1       1
Serbia    1       1
Sierra Leone   2       2
Slovakia 5 5       10
Somalia   2       2
South Africa         1 1
Sri Lanka 3 19     1 23
Sudan 2         2
Syria 1 7       8
Vietnam   6       6
Zimbabwe 1 3       4
             
Grand Total 56 128 0 7 35 226

 

APPENDIX “C”

All decisions for Minors by nationality

1 July 2006 to 30 June 2007

NATIONALITY
GRANT
DISMISSAL
EXCLUDED DISMISSAL
OR
REFUSED TO CONSIDER
MANIFESTLY
UNFOUNDED
WITH-
DRAWALS
FY TOTALS
             
Bangladesh - 3 - - - 3
Bulgaria 2 - - - - -
Czech Republic - - - - 4 4
Fiji - 2 - - 2 4
Hungary - - - - 2 2
India - - - - 1 1
Iran - 4 - - - 4
Iraq 2 - - - - 2
Israel - - - - - 1
Kyrgyzstan 2 - - - - 2
Pakistan 2 - - - - 2
Malaysia - - - - - 1
Slovakia 3 2 - - - 5
Sri Lanka - 4 - - - 4
Syria - 4 - - - 4
Vietnam - 1 - - - 1
             
Grand Total 11 22 0 0 9 42

 

APPENDIX “D”

Membership (during year to 30 June 2007)

Name Expiry date of present term
   
Aitken, Elizabeth Margaret (Chairperson) 30.06.07 [3]
Baddeley, Josephine Gail (Dr) 05.09.08   
Buddicom, Ruth 28.02.07 [6]
Burson, Bruce Llewellyn 30.06.07 [4]
Dingle, Bridget Anne  31.01.09
Haines QC, Rodger 30.09.07 [5]
Hodgen, Michael 28.02.07 [6]
Joe, Sharyn 30.06.07 [6]
Millar, Paul James 30.06.07 [6]
Molloy, Andrew Nesbit 30.06.10
Murphy, Sarah Louise 30.06.07 [7]
Pearson, Grant Douglas 30.06.07 [6]
Plunkett, David James 30.06.07 [6]
Robins, Margaret Lesley 05.09.07 [8]
Roche, Martha Anne 30.06.10
Schaaf, Amelia 30.06.07 [6]
Shaw, Virginia Jane 30.06.07 [6]
Towle, Richard 30.06.07 [9]
Treadwell, Charles Martin 30.06.07 [4]
Whata, Christian Nathanial 30.06.07 [6]

[3] Resigned 26 January 2007

[4] Reappointed to 30.06.10

[5] Reappointed to 30.09.10

[6] Not reappointed

[7] Reappointed to 30.06.08

[8] Re-appointed to 30.09.10

[9] Resigned 16.03.07

 

APPENDIX “E”

Financial Disclosure

Fees received by each Member of the Refugee Status Appeals Authority for the period 1 July 2006 to 30 June 2007.

Member  Fees Paid ($) Other Benefits ($)
     
Aitken, Elizabeth Margaret (Chairperson) 105,712  
Baddeley, Josephine Gail 78,926  
Buddicom, Ruth  0  
Burson, Bruce Llewellyn 115,433  
Dingle, Bridget Anne  110,189  
Haines QC, Rodger 168,781  
Hodgen, Michael 8,331  
Joe, Sharyn 0  
Millar, Paul James 22,911  
Molloy, Andrew Nesbit 122,505  
Murphy, Sarah Louise 113,213  
Pearson, Grant Douglas 5,000  
Plunkett, David James 0  
Robins, Margaret Lesley 41,563  
Roche, Martha Anne 114,781  
Schaaf, Amelia 0  
Shaw, Virginia Jane 29,484  
Towle, Richard 68,816  
Treadwell, Charles Martin 61,693  
Whata, Christian Nathanial 0