ANNUAL REPORT TO 30 JUNE 2001

This is the second official 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

The past year has been a successful one from the viewpoint of performance. The Authority was able to complete decisions in 24% more appeals than in the 1999-2000 year. The number of hearings scheduled, at 816, was approximately the same as for the previous year. The number of appeals lodged followed a similar pattern to previous years where the Authority received considerable appeal numbers in July and then June of the following year. There was a marked fall off during the middle of the fiscal year. This would appear to result from Refugee Status Branch completing considerable numbers of their decisions in the last two months of the fiscal year, rather than a smooth flow of decisions month on month. As the flow of appeals to the Authority is obviously totally dependent on the first instance decisions of the RSB, this pattern does not assist the smooth planning and resourcing of the Appeal Authority. It is to be hoped that, with the considerable increase in the number of determination officers at the RSB, who have recently been appointed, a smoother pattern of decision-making can be achieved month on month, in the future.

Appeal Numbers

As stated, there was not a smooth flow of appeals coming to the Authority. By way of comparison, in July 2000, there were 117 lodged and 114 in June 2001, whereas in all other months of the year, the number of appeals was in the vicinity of 35 per month. The total appeals for the year was 640 (11% above the 575 figure in 1999/2000). Some 816 hearings were scheduled during the past year, which was 1% down on the previous year. However, the Authority was able to complete decisions in 642 appeals, as opposed to 517 in the previous year (a 24% increase).

If the level of decision-making at RSB continues at similar levels to those achieved by the RSB in June and July 2001, it is possible the Authority will be faced with a significant lift in the number of appeals to be heard and determined. Accordingly, serious consideration is now being given to the need for additional membership.

Since the Authority was established in 1991, it has finalised 5,201 decisions. Of these, 791 have been granted refugee status, with the balance being declined or withdrawn appeals.

In the past fiscal year, 52 appeals have been allowed and 590 declined.

Budgets

The budgets for both the Authority's Secretariat and the Authority members were underspent. The combined expenditure of the Authority membership and Secretariat was 91% of the budgeted figure.

Membership

During the past year, no new members were appointed. However, one former member, Gerard McCoy QC (HK), was re-appointed in late 2001. Three members retired from the Authority (one full-time, two part-time) and one part-time member has been granted one year's leave of absence. Current planning indicates that there will be need for additional members. It is likely that open advertising, followed by merit appointment, will be undertaken within the next few months.

It is sincerely hoped that prior to advertising for additional members, significant membership issues relating to fees, tenure and career paths for members can be progressed. For the past seven or eight years, efforts have been made to address systemic problems with these issues. The resultant, and most serious, issue for the Authority is that the daily fee paid to part-time members ($500) has never been increased since 1992. Whilst there have been some minor adjustments in fees paid to full-time members, tenure and career path issues remain unaddressed. The last round of negotiations, which commenced more than a year ago, are still proceeding but are, as yet, unresolved. It is my view as Chairperson that unless satisfactory resolution is promptly achieved, the Authority will face serious issues of retention and future recruitment of appropriately skilled members. The most significant problem is, in the view of the membership, that the Authority does not come under the auspices of the Higher Salaries Commission but remains, quite inappropriately, under the Fees and Allowances Act, along with predominantly part-time tribunals and statutory boards. Clearly these boards are not comparable to the operations of this full-time, “Court-like” final appellate Authority, charged with making extremely serious decisions which, if wrong, can expose appellants to serious harm or even death.

Authority/Membership Recognition

We were honoured during the past year to have a Deputy Chairperson, John Priestley QC, appointed as a High Court judge. Justice Priestley was a foundation member of the Authority and contributed significantly to the Authority's development and its jurisprudence. His forensic skills, high quality decision-making and guidance to newer members will be greatly missed. Jonathon Moses was appointed during the year to be a senior prosecutor with the War Crimes Tribunal in Rwanda, a significant honour for a skilled and senior counsel. He has taken two years' leave of absence from the Authority. Carol Parker also resigned from the Authority during the year to return to the UK. She has been appointed as a part-time adjudicator on the United Kingdom Immigration Appellate Authority.

The international reputation of Deputy Chairperson, Rodger Haines, QC, has again been recognised as a leading academic in the field of refugee law. Mr Haines will, at the invitation and cost of UNHCR, in September 2001, at San Remo, be a major presenter at the Global Consultations Roundtable, conducted by the UNHCR. The consultations are a major part of the 50 th anniversary re-assessment of the Convention. He will be the principal speaker on the issue of gender in refugee determination.

At an earlier Global Consultation Roundtable in Portugal in May 2001, Virginia Shaw was invited by the UNHCR to be a panellist on international discussions on the issues of exclusion and cessation under the Refugee Convention.

After considerable negotiation between the International Association of Refugee Law Judges (IARLJ) and UNHCR, three members of the Authority, Virginia Shaw, Martin Treadwell and Paul Millar, are now involved, at two locations in South Africa, in guiding and establishing an appellate refugee determination system. This project, to which the New Zealand Government has given generous support, is taking place over a period of five months from June to November 2001. The New Zealand members are part of an international team which is establishing a viable appellate system in South Africa to deal with a backlog of some 12,000 appeals. New Zealand was one of the first countries called on to assist the UNHCR with this project because of the respect the UNHCR holds for the quality and credibility of the New Zealand refugee determination system and our jurisprudence.

New Zealand has also been chosen for the next venue for the world conference of the IARLJ to be held in October 2002. The IARLJ has some 400 members from 70 different countries around the world. The conference will be jointly hosted by the New Zealand judiciary and the RSAA. Assistance is to be provided for this conference by the Department of Labour and the Department for Courts.

Finally, I had the privilege of being appointed Vice President of the IARLJ in October 2002.

I consider it fair to say that the Authority now has an excellent team of well-trained, well-regarded, experienced members. A special thanks must also go to the first class Secretariat who have provided excellent service to the Authority members in the past year.

FUNCTIONS AND PROCEDURES

The Authority operates as an independent decision-making body of review. Pursuant to Section 3C of the Immigration Act 1987, recently introduced, 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”.

Pursuant to the provisions of the Section 3C, the Authority operates as a Commission of Inquiry under the Commissions of Inquiry Act 1908.

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 a 10 day time limit, in most situations. The Authority also has other powers to determine applications by refugee status officers as to whether: the Refugee Convention has ceased to apply (Article 1C of the Convention); 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 possible exclusion under Articles 1D, 1E or 1F of the Convention where refugee status was recognised in the past and 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, 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. Predominantly, the Authority sits with one member, but additional members can be brought on to a panel at the discretion and direction of the Chairperson.

2000/2001 FISCAL YEAR ACTIVITIES

Appeals Received and Processed

Full details of the Authority's statistics are set out the Schedules to this report.

Membership

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* (Deputy Chairperson)

18 days

30 June 2003

Peter Andrew

2-3 days

30 June 2005

Jo Baddeley

Full-time

5 September 2004

Richard Donald

Warrant expired 5 September 2000

Anna Fitzgibbon

2-3 days

30 June 2005

Rodger Haines QC (Deputy Chairperson)

12-14 days

30 September 2003

Sharyn Joe*

8-10 days

30 June 2003

Prue Tamatekapua

As available

5 September 2001

Judge Allan Lawson

8 days

30 June 2004

Allan Mackey* (Chairperson)

15 days

31 December 2003

Paul Millar*

18 days

30 June 2003

Carol Parker

Resigned June 2001

David Plunkett*

16 days

30 June 2003

John Priestley QC

Resigned when appointed High Court judge in November 2000

Gerard McCoy

3 days

31 December 2004

Jonathan Moses

One year's leave of absence granted (warrant expiry date 30 June 2002)

Margaret Robins

3 - 4 days

5 September 2003

Martha Roche

6 days

5 September 2001

Shelley Sage*

4 - 5 days

30 June 2002

Virginia Shaw*

12 days

30 June 2003

Charles Martin Treadwell*

16 days

30 June 2003

Lisa Tremewan*

6 days

30 June 2003

* Also serve on immigration Appeal Authorities.

 

Disclosure

In accordance with Cabinet Office Circulars: CO (01) 8, which 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 2000/01 fiscal year were:

Member

Fees paid

Benefits* received

Elizabeth Aitken

$98,345.60

Peter Andrew

$24,349.21

Jo Baddeley

$100,100.00

Richard Donald

$6,064.04

Anna Fitzgibbon

$23,086.64

Rodger Haines QC

$164,004.32 (1)

Sharyn Joe

$85,995.00

$480

Prue Tamatekapua

$1,082.45

Judge Allan Lawson

$53,860.00

Allan Mackey

$101,399.98

$480

Paul Millar

$76,230.00

$480

Carol Parker

$34,925.24

$480

David Plunkett

$76,440.00

John Priestley QC

$24,447.44

Gerard McCoy

Jonathan Moses

$18,750.00

Margaret Robins

$56,000.00

Martha Roche

$33,250.00

Shelley Sage

$25,929.86

Virginia Shaw

$71,874.00

$480

Charles Martin Treadwell

$80,262.00

Lisa Tremewan

$44,532.00

$480

* Benefits consist of telephone rental for fax/email communication

(1) Includes an adjustment backdated to 1/10/1999 ($44,136)

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.

 

STATISTICS SINCE ESTABLISHMENT IN 1991

(as at 30 June 2001)

Appeals/Registered

Withdrawn/Out of time

Other Determinations

Decisions Published

5,450

1,048

9

4,154

Appeals Allowed

Appeals Declined

Determinations Outstanding

791

3,363

236

 

Allan Mackey

Chairperson

Refugee Status Appeals Authority

23 August 2001