Proposal

It is proposed that there be a single independent Immigration and Protection Tribunal (the tribunal) that replaces the current RRB, RRA, RSAA, and DRT.

Status quo

Each existing appeal body has been established for a single purpose. A person who has more than one appeal right has to appeal to more than one appeal body. This can create extended delays, particularly in reaching final deportation decisions. It is inefficient and ineffective for different bodies to assess the same cases for credibility and for the particulars of the case. For example, in 2005/06, 77 of 291 appeals to the RRA (26 percent) were failed refugee status claimants, most of whom had previously appealed to the RSAA.

Sharing knowledge and expertise is not facilitated by the current legislative structures. For example, the DRT and the RRA both consider very similar tests, requiring similar expertise and knowledge of domestic law and international human rights law.

All four appeal bodies have experienced problems with significant backlogs of appeals and subsequent delays in decision-making. This is due, in part, to the variation in the flow of appeals through the different bodies. There are also difficulties in adjusting resource levels quickly to respond to changeable flows in appeals. Small tribunals can have greater difficulty justifying full-time and permanent members. These delays can obstruct New Zealand's ability to regulate immigration efficiently and effectively.

These difficulties are exacerbated because the bodies are supported by different departments. Further, under the current structures, introducing new appeal rights or removing existing appeal rights, as proposed below, would require structural change to one of the existing appeal bodies.

Discussion paper and submissions

The discussion paper proposed that a single tribunal be established. Organisations that made submissions on this topic included immigration consultants, ethnic councils, refugee and migrant groups, law societies, community law centres, human rights groups, other community groups, businesses, the United Nations High Commissioner for Refugees (UNHCR), and the Families Commission.

Approximately 70 percent of 58 organisations that responded supported the establishment of a single immigration and refugee tribunal. Individuals expressed mixed views, with just under half of 52 submitters indicating support for the proposal and approximately 40 percent indicating opposition. While submitters considered that a single tribunal would be more efficient, concerns were expressed about the potential for losing the expertise of the RSAA. Most of those who opposed the proposal considered that there should continue to be a separate refugee tribunal.

Comment

The proposed single immigration and protection tribunal is necessary for the protection, deportation, and classified information proposals to proceed, as well as for the proposals to streamline appeals more generally. For example, the deportation proposals remove the distinction between removal and deportation which distinguishes the roles of the RRA and the DRT. The tribunal would:

1. allow any person liable for deportation from New Zealand to have a single independent appeal, including where the person makes a protection claim
2. ensure all protection-related deportation appeals are heard by a tribunal with international law expertise
3. provide the independent scrutiny needed to allow for classified information to be used in immigration and protection decision-making, and
4. ensure speedier appeals processes and fewer delays in deportation.

Without the single tribunal many of the core Act review proposals would not be possible to implement. Creating a single tribunal would enable for greater efficiencies in the appeals system by allowing for appeals to be determined together, where a person was eligible for more than one appeal. This would significantly reduce delays in assessing whether or not a person should be expelled from New Zealand and the risk of inconsistent decision-making. It would be fairer to the individual and provide for a more robust immigration system.

The proposals are likely to result in the tribunal:

• being more prominent, better known and more obviously accessible, more independent and authoritative
• according tribunal members a more secure career, allowing them to be deployed in a range of compatible jurisdictions and enabling them to be better resourced and trained, and
• securing greater efficiencies and economies of scale in the long run.

The proposals in this chapter address submitter concerns relating to losing refugee expertise on the tribunal by creating clear legislative structures for protection-related appeals. This will mean that the tribunal has a clear role, set out in statute, to determine issues relating to international refugee and protection law. The proposal acknowledges, however, that there is considerable cross-over in the expertise required for protection and immigration appeals, particularly in the deportation context. For this reason, it is recommended that a single tribunal be created, albeit with distinct avenues of appeal for protection and immigration cases.

Proposal

It is proposed that the Bill provide for the tribunal to be supported by a government department determined by the Prime Minister. This is current practice and allows for future change without legislative change. It is proposed that the tribunal initially be supported by EITHER the Department OR the Ministry of Justice.

Status quo

The RSAA, RRA and RRB are independent bodies supported by the Department. The DRT is an independent body supported by the Ministry of Justice. The current annual cost of the appeals bodies for the Department is $6.101 million. The current annual cost of the DRT for the Ministry of Justice is $0.160 million.

Discussion paper and submissions

The discussion paper presented the Ministry of Justice as the preferred department to support the tribunal. There was strong support for the Ministry of Justice being responsible for servicing the tribunal. Almost 80 percent of 95 submitters supported this proposal. Submitters favoured a clear separation from the Department to enhance public confidence in the independence and integrity of the appeals bodies.

Comment

The costs of the single tribunal cover many of the costs of the proposals in the review, including the use of classified information, deportation, protection and streamlining appeals and appeals tests.

Perceived independence holds a significant weighting in the public's perceptions of the integrity of the immigration system. It is also a sound policy goal. While work on a unified tribunals structure within the Ministry of Justice is still in its early stages, this proposal would also be in line with the Law Commission's recommendation that tribunals be brought under the umbrella of the Ministry of Justice.

The preferred policy proposal is for the tribunal to be supported by the Ministry of Justice. The costs in Table One above are projected maximum costs (additional to current baseline and fees), and further analysis, including an independent audit, will be undertaken prior to a budget bid.  The costs relate to refurbishment of existing premises to house the new tribunal, developing a new case management system and website, having a District Court Judge as chair, and increased salaries for tribunal members commensurate with their new roles.  The Ministry of Justice option also requires developing an IT interface between the Department and the tribunal to allow the tribunal access to the immigration Application Management System.

It would be unusual for a tribunal with at least one District Court Judge member not to be administered by the Ministry of Justice. It may also make the relationship between the Chief District Court Judge and the Judge sitting on the immigration tribunal difficult. While this has happened before in the case of the Employment Court, one of the reasons for transferring the Employment Court to the Ministry of Justice was so that the Employment Court Judges could have some collegiality with other Judges.

Proposal

It is proposed that:

1. The tribunal should consist of members who are barristers and solicitors who have held a practising certificate for at least five years or who have other equivalent or appropriate experience - This is consistent with the RSAA, DRT and RRA and is essential to maintaining high calibre decision-making.
2. The Bill retains the provision allowing UNHCR ex-officio members to sit on the tribunal - This provision is not currently used but may be useful in the future if, for example, there was a mass arrival of protection claimants.
3. Members are appointed by the Governor-General on the recommendation of the Minister of Justice in consultation with the Minister of Immigration - This is based on the tribunal being supported by the Ministry of Justice and is consistent with the proposed new Immigration Advisers Complaints and Disciplinary Tribunal.
4. No person designated or delegated as an officer under the Bill and no person who has been a designated or delegated officer within the previous five years may be appointed as a member - This is consistent with the 1987 Act and would ensure that the tribunal maintains independence from departmental decision-makers.
5. The chair must be appointed as a District Court Judge by the Governor-General on the recommendation of the Attorney-General - This would ensure that the tribunal would have sufficient standing and capacity to be entrusted with classified information (discussed in Chapter Seven: Using classified information). The Judge would be responsible to the Chief District Court Judge, although the tribunal itself would be outside his or her purview.
   Under the District Courts Act 1947, the maximum number of District Court Judges that may be appointed is 140. The difference between this cap and the current operating level of 130.2 is already earmarked for extra Judges that may be required for known upcoming pressures on judicial resource, such as the 1,000 extra police. This gap also takes account of unknown incremental pressures on judicial resource over time. It is therefore proposed that the cap on District Court Judges under the District Courts Act 1947 be lifted by one, to 141.
6. District Court Judges with an immigration warrant may be seconded to the tribunal to determine classified information appeals where there is not sufficient capacity on the tribunal - This would allow flexibility in cases where more than one Judge was required to determine a case.
7. Remuneration of the District Court Judge would be set by the Remuneration Authority. Remuneration of the members would be set by the Cabinet fees framework - This is consistent with the remuneration framework for tribunals generally.
8. A member's term of appointment is for a period not exceeding five years - Many similar tribunals supported by the Ministry of Justice have a five year term of appointment, such as the Human Rights Review Tribunal.
9. For the purposes of any matter within its jurisdiction the tribunal consists of one member, but in particularly complex cases the chair may direct that more than one member hear and determine an appeal - In most cases the complexity of the appeal would not warrant more than one member. This is particularly the case given that the tribunal will be seeking members with significant expertise who can determine the full range of its jurisdiction. In particularly complex cases, however, it is important for more than one member to be able to determine the case. This mirrors the current provisions of the RSAA.
10. The tribunal must determine any appeal with all reasonable speed but may decide the order in which appeals are to be heard, and except as expressly provided, the tribunal may regulate its procedures as it sees fit - The success of a tribunal is dependent largely on the flexibility to determine its own procedures. The legislation should provide the minimum provisions to give clear direction, without being prescriptive.

Status quo

The four current appeals bodies have some rules in common, and some differences. For example, members of the RSAA and RRA and the chair of the DRT must be barristers or solicitors with appropriate experience. The DRT also has lay persons as members and the RRB does not require members to be lawyers. There are no District Court Judges appointed to any of the existing appeal bodies.

With the exception of the DRT, which requires three members to hear each appeal, one member acts as the authority. The RSAA has the discretion to allow more than one member to hear an appeal where the case is particularly complex.

Discussion paper and submissions

The discussion paper did not make specific proposals relating to the detailed provisions of the tribunal, but sought feedback from those who had a particular interest on these questions. Submitters made a range of comments on the legislative and administrative provisions that should be put in place for the independent appeals tribunal or tribunals. Submitters expressed mixed views on its membership, with some commenting that specialist and impartial expertise is necessary and others suggesting that a range of interests be represented. The New Zealand Law Society supported having District Court Judges as chair and deputy chair.

Comment

The value of a tribunal is having a group of independent experts who can assess departmental decisions and deportation cases more quickly than the courts and who can maintain the respect of the full range of stakeholders, from appellants, immigration advisers and the public, to the New Zealand government and international interests.

The proposals set out a legislative framework that allows for efficient decision-making, the development of expertise, and an appropriate level of fairness given the interests at stake. They build on the successful elements of the existing appeal bodies. In addition, the proposals address public concerns that creating a single tribunal may reduce the expertise of members, particularly in refugee law.

There are a number of additional factors that are considered vital to the success of the tribunal, but which are not appropriate to set out in legislation. For example, it is essential that the chair is a full-time position and that their role is to provide leadership and good management of the tribunal. The success of the amalgamated tribunal, in terms of efficiency and quality, will depend significantly on strong leadership. In order for the tribunal members to become New Zealand's experts in immigration and international protection law, the chair, deputy chairs and members must be appointed based on their merits and competence. The success of the amalgamated tribunal is also largely dependent on members being able to hear multiple streams of appeals if necessary, on the proviso that they are appropriately trained.

Proposal

It is proposed that a person may have a single right of appeal to the tribunal only, and that where a person is eligible for more than one appeal, all grounds must be lodged together. This is achieved by allowing only one appeal to the tribunal against deportation that addresses, where applicable, matters of fact, international protection obligations, and humanitarian grounds. This means that humanitarian grounds for appeal against deportation could be assessed in an appeal against a residence or protection decline.

Where a person did not take up their independent appeal right the Department would undertake a humanitarian assessment (not to be set out in legislation) prior to actual deportation.

In summary, the functions of the tribunal are to determine appeals against:

1. declined residence applications
2. deportation liability (on the facts and humanitarian grounds where applicable)
3. declined protection claims, and
4. deportation liability relating to refugees and protected persons.

Status quo

The current structure allows a person to appeal to separate appeals bodies, and the courts, depending on their circumstances. As discussed above, this can create multiple assessments of the same facts and delays for both the appellant themselves, and the Department in effecting deportation.

Discussion paper and submissions

The discussion paper proposed an option allowing for a single deportation appeal. Approximately 45 percent of 58 organisations considered that appeals on the facts and humanitarian appeals should be heard separately in expulsion cases; 40 percent considered that they should be heard together. Of the 52 individuals that addressed this question, approximately 30 percent considered that the appeals should be heard separately and approximately 60 percent considered that they should be heard together.

Comment

The deportation appeals system in particular is complex and inefficient. Any person liable for deportation may have access to multiple avenues of appeal to different appeal bodies, the courts and the Minister. They can also appeal to the Ombudsmen and request judicial review. This can create years of delays in reaching a final decision in some cases. Such delays generally decrease the justification for expelling the person due to humanitarian considerations and undermine New Zealand's ability to regulate immigration.

While there are potential difficulties with one appeal in terms of the range of evidence that may be tendered, there are also potential difficulties in the two-appeal process. In particular, there is a possibility that, where an appellant receives a decision in respect of the facts of the matter, they will use the humanitarian appeal hearing as an opportunity to challenge the earlier decision.

On balance, and in light of the obvious efficiencies and cost-savings that would flow from it, it is considered that appeals can be fairly and appropriately determined through a single appeal but with a structured, stepped decision-making process as proposed below.

Proposals

It is proposed that there should continue to be no formal review or appeal rights:

1. for temporary visa applicants offshore (status quo), or
2. against a decision to refuse entry at the border (status quo).

It is proposed that declined onshore temporary entrant visa applicants should continue to be able to seek departmental reconsideration of that decision within 14 days of the decline decision, where they hold a valid visa (status quo).

Status quo

These proposals mirror the status quo.

Discussion paper and submissions

While the public discussion paper made no proposals for change in this area, a number of submitters considered that temporary entry applicants should have independent appeal rights.

Comment

Providing for review and appeal must be proportionate to the level of interest involved. The status quo is considered robust on the basis that temporary entry decisions are highly discretionary and that temporary applicants have fewer interests at stake than residence applicants. The government is held accountable to New Zealand for meeting New Zealand's temporary entry needs, rather than particular individuals. Introducing independent appeal rights for temporary applicants would create a significant cost that is not considered justifiable in light of the interests at stake (in the last four years 25,000 to 30,000 temporary applications have been declined per year, around 6 percent of decisions made).

Proposals

It is proposed that all residence applicants may continue to appeal to the tribunal against a residence decision of the Department, subject to the standard limitations below.

Status quo

Residence applicants anywhere in the world may appeal against a decline decision to the RRB.

Discussion paper and submissions

The discussion paper presented three options regarding residence appeals and indicated that Option C was preferred:

1. Option A: all residence applicants may access independent appeal (the status quo)
2. Option B: residence applicants may access internal departmental review only, or
3. Option C: onshore residence applicants and offshore applicants with New Zealand employer or family member sponsors only may access independent appeal. Those who could not access independent appeal would have access to a departmental review.

Most submitters did not support the proposal to only provide residence applicants with the right of independent appeal if they are onshore or have a New Zealand sponsor. Over 60 percent of 101 submitters (53 organisations and 48 individuals) who addressed this issue considered that all residence applicants should have access to independent appeal (for example, Wellington Community Law Centre and Asia New Zealand Foundation). They considered that independent appeal is necessary for all applicants in order to ensure that the law is applied correctly, provide for transparent and accountable decision-making, support the principles of fairness and natural justice and provide confidence in the immigration system.

Comment

Option C would create new costs, particularly in implementing a departmental review mechanism for those failed residence applicants who did not have access to independent appeal, and in dealing with Ombudsmen complaints. In addition, the tribunal would need robust verification tools to ensure that New Zealand employer sponsors were legitimate, and that, for example, immigration consultants were not used. Determining whether a person was eligible to lodge an appeal would be a complex process in itself. All of these new costs are unlikely to be recovered by savings due to a reduction in independent appeals.

Option B would also create new costs relating to implementing a departmental review mechanism, and dealing with Ombudsmen complaints. These costs are unlikely to be recovered by any savings in light of the proposed single appeal tribunal.

The proposal (Option A) reflects the public's views and given the low numbers of residence appeals (see Table Two) is likely to be most efficient and effective in the new single tribunal framework.

* Includes reversal of original decision and referral back to Department for reassessment.

Proposals

It is proposed that the tribunal may consider appeals against deportation on the facts where liability was established through a decision of the Department:

1. that, on the balance of probabilities, a resident or permanent resident visa was obtained through fraud, where there has been no conviction for that fraud (currently heard by the High Court), or
2. that resident visa conditions were not met (currently heard by the High Court).

It is proposed that there be no appeal on the facts to the tribunal where:

1. a person becomes liable for deportation by remaining in New Zealand unlawfully (status quo)
2. a person becomes liable for deportation through criminal offending as they may appeal the conviction to the court (status quo)
3. a person becomes liable for deportation on the basis of being a threat to national security (status quo)
4. citizenship has been deprived by the Minister of Internal Affairs due to immigration fraud, as they may appeal the deprivation to the High Court (in addition to this appeal right currently the person may be able to appeal, on the same facts, to the High Court in relation to residence revocation and to the RSAA in relation to refugee cancellation), or
5. a temporary entrant or limited visitor visa holder is advised that their temporary stay has been revoked (status quo).

Rather than having an independent appeal, it is proposed that temporary entrants be given 14 days to provide reasons to the Department why they should not be deported, except in the case of administrative error, or where the person meets exclusion grounds (status quo).

Status quo

These proposals largely mirror the status quo. There are two differences. Firstly, avenues of appeal on the facts relating to residence fraud or not meeting conditions that currently go to the High Court would go to the tribunal, and could be dealt with as part of a single appeal that addressed other matters.

Secondly, there would only be one opportunity to contest the facts, whether to the tribunal or to the courts. This is the status quo in regard to current liability for deportation on grounds of criminal offending and residence fraud where there is a court conviction for that fraud. It differs from the status quo in the refugee fraud area, and citizenship deprivation on the basis of residence fraud. In both of these cases there are currently multiple opportunities to contest the same facts, which is inconsistent with the framework for deportation appeals relating to criminal offending generally.

Discussion paper and submissions

Approximately 55 percent of 94 submitters agreed that persons should only have one opportunity to contest liability for expulsion on the facts. Approximately 35 percent opposed the proposal on the basis that it may be unfair and inflexible. A number of submitters, such as the Auckland District Law Society, considered that both temporary entrants and permanent residents should have access to independent appeal on the facts.

Comment

These proposals remove current anomalies where there are multiple appeals on the facts in some cases, and not in others. It means that there would be a single opportunity to contest deportation liability on the facts whether through the Department, the tribunal or the courts. Temporary entrants would have a review opportunity through the Department and residents may appeal to the tribunal. In the context of a conviction the opportunity to contest the facts is by way of a general appeal against conviction in the ordinary courts.

The proposal that a number of appeal routes that currently go to the High Court go to the tribunal would allow for greater efficiencies where a person could appeal on both facts and humanitarian grounds.

Proposals

It is proposed that all persons liable for deportation may appeal to the tribunal within time limits. For clarity, the following persons would not have access to humanitarian appeal (the status quo):

1. a person refused entry to New Zealand
2. transit passenger visa holders
3. a person liable for deportation on grounds of being a national or international security risk or threat
4. a person in respect of whom a deportation order is in force (as discussed in Chapter Five: Deportation, deportation orders would only be made once the appeal period had expired or appeal was declined. This provision would mean that a person who re-entered New Zealand while a deportation order was still in force, could not access a further humanitarian appeal right), and
5. a person who is in New Zealand unlawfully due to the expiry of a limited visitor visa.

It is proposed that for the purposes of the humanitarian appeal the tribunal must determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be deported from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand. The fact that a person meets residence criteria does not in itself constitute exceptional circumstances of a humanitarian nature.

It is proposed that sections 105(1A) and 105A of the 1987 Act relating to victims' rights to make submissions in the case of criminal offenders be carried over.

Status quo

Persons unlawfully in New Zealand may appeal to the RRA against removal on humanitarian grounds. New Zealand residents may appeal to the DRT against deportation (for residence fraud, failure to meet residence conditions, or serious criminal offending) on humanitarian grounds.

There are three different, but similar humanitarian tests in the 1987 Act:

1. an appeal to the RRA may be upheld where "there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in the circumstances be contrary to the public interest to remain in New Zealand."
2. a person whose residence permit is revoked (on grounds of fraud or misrepresentation) may appeal to the DRT on the grounds that "it would be unjust or unduly harsh for the person to lose the right to be in New Zealand indefinitely." Even if this test is not met, the DRT may quash the revocation of the residence permit in any case, as it thinks fit.
3. a person subject to a deportation order (on grounds of serious criminal offending) may appeal to the DRT on the grounds that "it would be unjust or unduly harsh to deport the person from New Zealand, and that it would not be contrary to the public interest to allow the person to remain."

Discussion paper and submissions

The discussion paper proposed two options regarding who may have access to a humanitarian appeal against deportation. Option A allowed all liable persons access to independent humanitarian appeal within time limits. Option B restricted access to independent humanitarian appeal to persons with a demonstrated connection to New Zealand. Under both options, any person who could not, or chose not to, access independent humanitarian appeal would have a departmental humanitarian assessment prior to deportation.

Most submitters (approximately 70 percent of 94) considered that all persons liable for expulsion should have access to independent humanitarian appeal. Submitters generally considered that providing all persons with the opportunity for an independent humanitarian appeal is necessary to ensure New Zealand meets its international obligations and maintain New Zealand's reputation for fairness.

The discussion paper proposed a single humanitarian test that mirrored the RRA test. There was considerable interest in this proposal. Most of the 94 submitters agreed that there be a single test but many submitters, particularly organisations, commented that the test proposed set too high a threshold. A number of submitters, including the Human Rights Commission, opposed the public interest element of the test. Others expressed concern that the humanitarian circumstances would need to be exceptional. Some submitters, including Grey Lynn Neighbourhood Law Office, commented that express reference should be made to New Zealand's international obligations.

Comment

In combination with streamlining liability for deportation (Chapter Five: Deportation), and creating a single deportation appeal within an amalgamated appeals tribunal, the time taken to deport a person could be reduced under Option A. Option A would ensure maximum fairness, while creating a system that allows for more effective and efficient decision-making processes. Given the low and decreasing number of humanitarian appeals that are taken up, the analysis indicates that Option B would have little impact in practice.

The proposed test mirrors the current RRA test which is well established as a tight test, but which allows an average of 17 percent of appeals each year. Adopting this test for all humanitarian appeals would address concerns with the DRT's two existing tests, which have been criticised for not adequately giving weight to the New Zealand public interest, and would allow for consistent application.

The public interest factor is the part that allows for the risk of reoffending, the impact on victims, and the impact on New Zealanders generally to be taken into account. Many submitters expressed general support for a framework that takes the New Zealand public interest into account in deportation cases. However, a number of public submissions commented that New Zealand should remove the public interest consideration, in a similar way to Canada's humanitarian policy test.

Canada's test is their government policy and is not applied by an independent tribunal. It is also, arguably, a much more difficult test than what is proposed as it requires the person to be suffering hardship that is unusual, excessive or undeserved and the result of circumstances beyond their control. On balance, the public interest factor is considered to be an essential part of the appeal test.

Discussion paper and submissions

Approximately half the organisations and 75 percent of individual submitters (of a total of 94 submissions) considered that persons who obtain residence through fraud should be treated as overstayers rather than as residents for the purpose of establishing access to humanitarian appeal. A number of submitters commented that overstayers and residents should have the same rights to independent humanitarian appeal.

Comment

As discussed in Chapter Five: Deportation, where the Minister or delegated officer determines that a visa was granted to a non-citizen under a false identity, that person will be deemed unlawful from the date they entered New Zealand, or the date of expiry of a previously held valid visa in their true identity.

In the case of temporary entrants, as proposed above, they would be given 14 days to provide reasons to the Department why they should not be deported. If the Department upheld its decision, the non-citizen's visa would be invalid from the date of its issue. The tribunal would have jurisdiction to hear a humanitarian appeal only within 42 days from when the person originally became unlawful.

Where the Department found that a resident visa was issued to a fraudulent identity, the non-citizen would be given 28 days from notice of deportation liability to appeal to the tribunal on the facts. Where the appeal was upheld, the person could remain on their resident visa. Where the appeal was overturned, the visa would be invalid and the person would be unlawfully in New Zealand from the date they entered New Zealand, or the date of expiry of a previously held valid visa in their true identity. As this would almost definitely be more than 42 days, the tribunal would have no jurisdiction to consider the humanitarian appeals test. As with any non-citizen in New Zealand unlawfully for a short or long time, the Department would be able to consider any reasons to allow the non-citizen to stay in New Zealand and the Minister would also have the ability to intervene.

Proposals

As discussed in Chapter Four: Protection, any person may appeal to the tribunal against an adverse protection decision. Where a person is not prevented from lodging a humanitarian appeal as set out above, (for example, they were not refused entry at the border), they may also lodge a humanitarian appeal with the protection appeal.

In all cases where a person has lodged a protection appeal and a humanitarian appeal, the tribunal must determine the protection appeal first. The tribunal may reverse or uphold the original decision, but it may not refer a decision back to a determination officer for reassessment.

Status quo

Currently humanitarian appeals must be lodged to the RRA, separate to a refugee status appeal which is lodged to the RSAA. Because a refugee status claimant is generally given a permit for the duration of their appeal to the RSAA, humanitarian appeals are usually lodged following refugee status appeals.

Discussion paper and submissions

As discussed in Chapter Four: Protection, there was a high level of support for determining claims under the Refugee Convention, the Convention Against Torture and articles 6 and 7 of the International Covenant on Civil and Political Rights in a single procedure, with a single right of appeal. Over 80 percent of 40 organisations and approximately 70 percent of 35 individual submitters agreed with this proposal. Less than 10 percent of all 75 submitters were opposed.

Comment

This proposal would prevent failed protection claimants having a separate appeal to the tribunal on humanitarian grounds. It would allow for maximum efficiency, and is more likely to result in robust, consistent decision-making.

Proposals

Status quo

This proposal mirrors the status quo regarding refugee fraud. However, refugees who meet deportation criteria through criminal offending may only appeal on humanitarian grounds to the DRT, which has no express jurisdiction to determine international obligations.

Discussion paper and submissions

The discussion paper proposed that the legislation expressly prohibit the expulsion of a person where prohibited by New Zealand's international obligations. The majority of submissions supported clarifying in the legislation when a protected person may be deported. Ninety percent of 33 individual submitters and 60 percent of 34 organisations supported the proposal. Ten percent of organisations disagreed.

Comment

From time to time persons previously found to be in need of international protection may become liable for deportation (for example, through fraud, or serious criminal offending). As discussed in Chapter Four: Protection, deportation of a protected person is prohibited in many cases.

These proposals set out on what grounds a refugee or protected person could appeal based on the different reasons that they may become liable for deportation. The proposals recognise the fundamental obligations that New Zealand has to not deport a person. They are likely to create greater efficiencies and to result in more consistent and robust decision-making by bringing together a number of different appeals tests which currently require separate appeals.

These proposals address the anomaly in the current system which does not have a clear and transparent process for ensuring New Zealand's international obligations are assessed when a refugee or protected person becomes liable for deportation through criminal offending. It also provides a process for ensuring that protection obligations are upheld where a person has been granted a temporary visa only. While under the current practice this occurs very rarely, it is important to ensure that the legislation allows for the tribunal to assess protection needs in such cases.

Proposals

It is proposed that:

1. appeals against residence decisions must be lodged within 42 days of notification of the original decision (status quo)
2. deportation appeals to the tribunal must be lodged within 42 days of a person staying beyond the validity of their permit (status quo), or within 28 days of receiving deportation liability notice, and
3. appeals to the tribunal against a protection decline must be lodged within 10 days of notification, or within five working days of notification where the person is in detention (status quo).

It is proposed that the tribunal may consider out of time appeals from protection claimants only (status quo).

As discussed earlier, the tribunal would be able to regulate its procedures as it sees fit. This would, among other things, allow the tribunal the discretion to hear appeals on the facts and on humanitarian grounds together or separately. It would also allow the tribunal flexibility in regard to when it heard and determined an appeal from a person who is serving a prison sentence. It is proposed that the Bill provide guidance to the tribunal that it must determine appeals prior, but as close as possible, to the person's date of release from prison.

Status quo

The current appeal periods include 5, 10, 21 and 42 day timeframes. Appeals against residence decisions must be lodged within 42 days of notice. Appeals against deportation to the RRA must be lodged within 42 days of staying beyond the validity of a permit. Appeals against a protection decline must be lodged within 10 or 5 days of notice, depending on the form of the notice. Appeals to the High Court and DRT currently must be lodged within 21 days of notice. Out of time appeals may be accepted from refugee appellants only.

Discussion paper and submissions

The discussion paper suggested that the timeframe for humanitarian appeals could be reduced to 28 days. The small number of submitters who commented on timeframes generally considered that the 42 day period should be retained, or that flexibility for hearing out of time appeals should be allowed.

Comment

These proposals largely mirror the status quo, but increase the appeal period from 21 days to 28 days in some cases. This recognises that a person may be lodging an appeal on more than one ground. In the deportation context, it is important to have a clear appeal period, after which deportation may proceed if the person has not lodged an appeal. These proposals allow certainty that all appeal rights have been exhausted before deportation is executed. An exception is provided in the case of protection claims on the basis that international obligations are at stake.

It will be vital to ensure that all non-citizens arriving in New Zealand are clearly informed that they may deported if they stay beyond the validity of their visa.

Proposals

It is proposed that, as with the status quo:

1. residence appeals are to be determined on the papers
2. in the case of protection appeals, the tribunal may dispense with a hearing only if the person was interviewed or given the opportunity for a hearing by a determination officer at first instance and the tribunal considers that the appeal is prima facie manifestly unfounded or clearly abusive.

In the case of deportation appeals, it is proposed that, as with the status quo, where the person is a New Zealand resident, the tribunal must conduct a hearing. In the case of deportation appeals where the person is a temporary entrant only, or is in New Zealand unlawfully, it is proposed that the tribunal must determine the appeal on the papers, unless, in its absolute discretion, it offers the appellant the opportunity to attend a hearing.

Status quo

The RSAA and DRT are generally required to hold a hearing. RRA and RRB appeals must be heard on the papers.

Discussion paper and submissions

A number of submitters, such as the New Zealand Association for Migration and Investment, suggested that applicants should have the opportunity to be heard in person.

Comment

Determining appeals on the papers is efficient and fair in the case of residence appeals, where the initial decision is also made without a hearing and the appeals are straightforward. Protection appeals are generally so complex that having an oral hearing allows for a more efficient decision to be made. It also ensures that the decision is robust and fair. Likewise it is considered appropriate for deportation appeals from residents to have a hearing.

Determining deportation appeals from temporary entrants on the papers has generally worked well, but from there are cases with complex credibility issues that could be resolved more quickly and accurately through a hearing.

Proposal

To transfer the current framework to the new statutory environment, it is proposed that the Legal Services Act 2000 be amended to allow legal aid to be available for protection claims and appeals, and residents appealing against deportation on the facts or on humanitarian grounds.

Where an appeal to the tribunal on protection and humanitarian grounds is determined together, it is proposed that legal aid be available for the whole proceeding.

It is proposed that the prohibition on legal aid being granted to persons unlawfully or temporarily in New Zealand for immigration purposes, and to residence applicants, be retained.

Status quo

The Legal Services Act 2000 sets out who may access legal aid in relation to immigration and refugee matters. It prohibits legal aid from being granted to persons unlawfully or temporarily in New Zealand, for immigration purposes. It allows legal aid to be granted in respect of refugee status decisions and appeals, and appeals from residents against deportation to the DRT. In addition, there are standard financial eligibility criteria in the Legal Services Act that the individual has to meet and their case has to have reasonable prospects of success. Refugee and eligible immigration matters make up a small portion of legal aid grants.

Discussion paper and submissions

The discussion paper did not present proposals in regard to legal aid, but asked for people's views on this issue. Some submitters, such as the Families Commission, suggested that legal aid should be available for those making a humanitarian appeal. Others expressed the view that legal aid should only be available to residents and protection claimants.

Comment

As these proposals largely mirror the status quo, there are not considered to be material cost implications for legal aid. The number of applications for and grants of legal aid for refugee matters (initial claims and appeal) has been declining over recent years. As protection numbers are projected to increase moderately in the first two years and then drop back to current low numbers, the proposals to extend legal aid to a small number of additional protection and appeal matters is estimated to be cost neutral or at a minimal cost.

These assumptions do not take into account the Legal Services Amendment Act 2006 which extends financial eligibility. However, this is not expected to have a material impact, as most applicants would be financially eligible now.

Proposal

The following general rules relating to all appeals to the tribunal are proposed:

1. appeals must be lodged in the prescribed manner
2. appeals must be accompanied by the prescribed fee (if any)
3. appellants must supply an address on lodgement which may be used for communication purposes and must notify the tribunal of any change of address
4. for the purpose of communicating to the appellant, the tribunal may rely on the latest address provided
5. it is the responsibility of the appellant to establish their case and they must ensure that all information, evidence and submissions that they wish to have considered in support of the appeal are provided to the tribunal before it makes its decision
6. the appellant may not challenge any finding of credibility made by the tribunal in relation to any previous appeal made to the tribunal and the tribunal may rely on any such finding
7. when an appeal is lodged, the tribunal must give the Department a copy of the acknowledgment of appeal and any information, evidence or submissions lodged, and give the Department a specified time to lodge with the tribunal any files relating to the person and any other information, evidence and submissions in relation to the appeal, as the Department sees fit
8. the tribunal must disclose for comment any information that it proposes to take into account in determining the appeal where it may be prejudicial and is from a source other than the appellant, unless specified below:
9. the tribunal is not required to disclose information that would be likely to endanger the safety of any person, but it may use this information, and
10. the tribunal must not disclose classified information (as discussed in Chapter Seven: Using classified information), and
11. appeals may be withdrawn at any time by the appellant or their representative, in writing.

Status quo

These proposals mirror the provisions of the existing appeals bodies.

Discussion paper and submissions

The discussion paper did not present proposals regarding these rules, but asked for people's views generally on how the tribunal should work. There was support for a tribunal to be established in a similar way to the RSAA.

Comment

These proposals transfer the existing successful rules relating to the existing appeals bodies to the new tribunal. They are essential to ensure the tribunal can function efficiently, and maintain appropriate information sharing with the Department.

Proposals

To transfer the existing successful powers of the appeals bodies to the tribunal, it is proposed that the tribunal should:

1. have the power to seek and require information from any source (including government departments and third parties), but not be obliged to seek any information, evidence or submissions further to that provided by the appellant, and may determine the appeal on the basis of the information, evidence and submissions provided by the appellant (subject to paragraph 637(g) above)
2. be able to require the chief executive of the Department to seek and provide relevant information
3. be able to determine an appeal without a hearing if the person fails without reasonable excuse to attend a notified hearing with the tribunal
4. have the powers to summons witnesses and necessary related powers, similar to the provisions in the Commissions of Inquiry Act 1908, and
5. have the powers to receive evidence, similar to section 4B of the Commissions of Inquiry Act.

It is proposed that no member is personally liable for any act of the tribunal. It is also proposed that the Bill establish offence provisions relating to obstructing or failing to comply with requirements of the tribunal, similar to section 9 of the Commissions of Inquiry Act.

It is proposed that the tribunal have the power to require the Department, within the bounds of the Department's agreed limitations on its use of biometric information, to collect biometric information from an appellant for the purpose of identity verification. As with the proposals regarding biometric information in Chapter Eleven: Biometric information, this power would only come into force following an assessment of the evidence of information standards and privacy guidelines for the use of biometric technologies and the development of the appropriate regulations, in consultation with the Privacy Commissioner.

Status quo

With the exception of the biometrics proposal, these proposals draw on existing powers of the appeals bodies. For example, the DRT and RSAA are currently deemed to have the powers of a Commission of Inquiry under the Commissions of Inquiry Act.

Discussion paper and submissions

The discussion paper did not present proposals regarding the powers of the tribunal, but asked for people's views, particularly on the commission of inquiry powers. A number of submitters considered that the tribunal should have inquisitorial powers, akin to those of the RSAA.

Comment

It is vital that the tribunal has the same ability to conduct equally robust investigations into identity as the Department, particularly in the context of potential fraud. For clarity and transparency, all powers of the tribunal will be set out in the new Bill without reference to the Commissions of Inquiry Act.

The primary use of biometric information would be to compare it against the departmental biometrics database or any relevant alert lists, within the bounds of the Department's agreed limitations on its use of biometric information.

Proposals

Where an appeal is allowed the person may continue to reside in New Zealand on their resident visa, where they have one. Otherwise:

1. the tribunal may direct the grant of a temporary visa for up to 12 months (with no further appeal rights), or
2. an immigration officer must grant a resident visa or a temporary visa of no less than six months duration.

It is proposed that the tribunal may suspend deportation liability of residents for up to five years. The five year period could be set to start upon an offender's release from prison. This would allow the tribunal to give a second chance to avoid deportation, subject to good behaviour or other specified conditions. Deportation liability would be reactivated where the conditions were not met.

Where an appeal is not allowed, the person may face immediate deportation. It is also proposed that the tribunal may vary or waive the ban period in cases where it considered that a failed protection claimant genuinely believed that they had a valid protection claim and was not considered to be abusing the protection system with a spurious claim.

Status quo

Where an appeal is allowed by the DRT, a person may remain on their residence permit. Where an appeal is allowed by the RRA, it may direct the Department to grant a temporary stay or residence. The RSAA may not grant any form of immigration status and a person approved by the RSAA must apply for a permit on that basis, according to immigration policy.

Discussion paper and submissions

Given the technical nature of this issue, the discussion paper did not present proposals on it, and there were no specific submissions.

Comment

As with the status quo, this proposal would allow the tribunal to determine that a person's humanitarian circumstances only required an additional stay of no more than 12 months. Persons granted a temporary visa following direction of the tribunal could not appeal against the obligation to leave New Zealand following the expiry of that visa.

This proposal would also allow the government to establish policy relating to the immigration status of persons in need of international protection. As noted in Chapter Four: Protection, the immigration status given to refugees and protected persons is a matter for Immigration Instructions.

In regard to suspending liability for deportation, as proposed in Chapter Five: Deportation, there may be cases where the threat of deportation can have a positive effect on behaviour, and where a second chance is justifiable.

Proposal

It is proposed that where a person has a protection or deportation appeal before the tribunal and leaves New Zealand for any reason, their appeal should be treated as withdrawn. Residence appeals may be decided regarding an appellant who has left the country.

Discussion paper, submissions and comment

This issue is technical in nature and was not consulted. It is desirable to be clear and transparent on the implications of leaving New Zealand while an appeal is undecided.

Proposals

It is proposed that judicial review may be sought for a decision, except where that person has a de novo appeal to the tribunal.

In light of the aim to create an efficient appeals system that does not result in years of delays, and the principles that govern New Zealand appeal structure generally, it is proposed that:

1. a person may seek leave of the High Court to appeal a decision of the tribunal on a point of law, within 28 days of notification of the tribunal decision
2. judicial review proceedings must be lodged within 28 days of the decision to be reviewed
3. the High Court must endeavour to determine appeals on points of law and judicial review together where possible, and
4. as with the status quo, the Crown would have the same rights of appeal as the applicant themselves.

Status quo

The 1987 Act allows judicial review to be sought for any decision made under the 1987 Act within three months of the date of the decision. This means a person may seek judicial review at multiple points in the immigration process.

Currently, appeals on points of law may not be made from the RSAA, but may be made from the other appeals bodies. Where a person appeals to the High Court and applies for judicial review, the High Court must endeavour to hear the two appeals together.

Discussion paper and submissions

The discussion paper did not present proposals in regard to further appeals, but asked for people's views on this issue. A number of submitters considered that there should an avenue of appeal to the High Court, from the tribunal, on points of law.

Comment

It is a general principle in New Zealand that a person should have a first appeal as of right and a second appeal "by leave". This principle was followed when appeal structures were looked at during the development of the Supreme Court.

The immigration context has particular imperatives around time for the system to function. The longer a person liable for deportation remains in the country, the greater the likelihood of them establishing ties to New Zealand which may justify their stay. In addition, appeals with little or no chance of success can be used to "buy time" in New Zealand.

Proposal

It is proposed that:

1. no complaints may be made under the Human Rights Act 1993 that relate to the content or application of immigration legislation, regulations or instructions, and the Human Rights Commission may not bring proceedings in relation to these matters
2. subject to paragraph 666(a) the Human Rights Commission may undertake all of its other functions including, but not limited to:
3. inquiring generally into any matter, or any practice, or any procedure, if it appears to the Commission that the matter involves, or may involve, the infringement of human rights
4. making public statements in relation to any matter affecting human rights
5. receiving and inviting representations from members of the public on any matter affecting human rights, and
6. reporting to the Prime Minister on any matter affecting human rights, including the desirability of legislative, administrative, or other action to give better protection to human rights, or on the implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights.

Status quo

The 1987 Act restricts the ability of a person to make a complaint regarding the content or application of immigration law or policy to the Commission on the basis that immigration matters inherently involve different treatment on the basis of personal characteristics. The Commission may, however, perform most of its broader functions under section 5 of the Human Rights Act. The provisions allow, for example, complaints to be made regarding discrimination that is not based on law or policy, by the Department, in the course of providing its services. They also allow the Commission to report to government on issues of discrimination in policy which it considers government should reconsider.

The current provisions date from 2002 and replaced a much broader restriction in the Human Rights Act.[13]

Discussion paper and submissions

There was no proposal for change in the discussion paper. The Human Rights Commission recommends that section 149D be repealed on the basis that the Commission should be able to bring civil proceedings relating to immigration law or policy arising from complaints to the Human Rights Tribunal.

Comment

This proposal ensures that the Commission has a role in commenting on proposed law and policy, and a role in investigating infringements of human rights that fall outside the application of agreed law and policy. For example, in the context of the Skilled Migrant Category, the Commission could investigate alleged discrimination on the basis of ethnicity which is not a policy criterion, but could not investigate discrimination on the basis of a person being over 55 years of age, which is an agreed policy criterion.

The proposal mirrors the status quo in substance, but drafting of the Bill could clarify the breadth of the Human Rights Commission's role and the limited nature of the restriction. This proposal is considered appropriate in light of proposals to establish a clear framework for investigating the application of law and policy through the independent tribunal, as well as the power of the Ombudsmen to address complaints about departmental decision-making. It would be counter to the review's intention to create fair, fast and firm decision-making processes to allow a parallel dispute resolution system for individual cases.