Summary of proposals

The discussion paper proposes establishing a single immigration and refugee appeals tribunal. The tribunal would hear appeals against:

• residence declines (if applicable)
• refugee/protection declines
• liability for expulsion on the facts, and
• expulsion on humanitarian grounds.

Two options for a single tribunal are presented, which differ only in the treatment of appeals against expulsion (other than for refugee status or protection cases):

1. Appeals against liability for expulsion (on the facts) and humanitarian appeals against expulsion would be heard separately, or
2. Appeals on the facts and humanitarian appeals would be heard together.

Under both options, appeals against a decision to decline residence would consider both the facts and the merits of the case being recommended to the Minister as an exception to policy. For refugee status/protection cases, appeals against a decision to decline protection would always be heard separately from any humanitarian appeal against expulsion.

Submitter response

One hundred and ten submitters responded to one or more of these questions. These included 58 submitters responding on behalf of organisations and 52 private individuals. Organisations that made submissions included immigration consultants, refugee and migrant groups, ethnic councils, human rights groups, community law centres, law societies, other community groups, businesses, government agencies, the Families Commission and two political parties.

Comments on question one

There was a difference in response between organisations and individuals to this question. Approximately 70 percent of organisations who made submissions on this issue agreed that there should be a single immigration and refugee appeals tribunal; approximately 15 percent of organisations opposed the proposal. The response from individual submitters, on the other hand, was mixed with just under half the submitters supporting the proposal and approximately 40 percent indicating opposition to the proposal.

A number of submitters who support the establishment of a single immigration and refugee appeals tribunal commented that it would result in greater efficiency and promote greater consistency in decision-making. The Families Commission commented on the potential effect of streamlining appeals process on appellants and their families.

We believe there is huge potential for a more streamlined appeal process. The current backlogs (which we understand are being cleared) cause tremendous uncertainty and stress for many applicants. We are aware of cases where appellants wait for a result for many months and sometimes years. This causes tremendous strain on families. (Families Commission)

Some submitters emphasised the need to ensure that the appeals tribunal understands the different legal issues associated with immigration and refugee cases, and to ensure that the specialist expertise of the Refugee Status Appeals Authority is not lost. Some submitters commented on the need for adequate training of tribunal members; others advocated having a specialised refugee and protection appeal division within the new tribunal.

If domestic immigration law is confused with international protection law by the decision makers the propensity for flawed decision-making and appeals is substantial. Accordingly, in the establishment of this new regime it is important that extensive training is carried out to ensure decision-makers and judges are applying the right approach, or "wearing the right hat" at each step in the decision-making. My experience has shown that this probably the largest problem within the UK "one-stop shop" approach and leads to a very significant number of appeals and the application of substantial expensive judicial time and effort. I cannot over stress the necessity to get this right at the start. (Individual submitter)

Those who oppose the proposal also expressed concerns about the potential for losing the expertise of the Refugee Status Appeals Authority and the need to distinguish between the different circumstances of immigration and refugee cases. Most of these submitters considered that there should be two appeals tribunals: one to consider immigration cases and one to consider refugee cases.

While residence, removal and deportation appeal bodies/tribunals should be merged, refugee matters should be kept separate. Refugee matters are not immigration matters - they have their own international jurisprudence (based on the 1951 Convention) and should not be confused with immigration issues. (Individual submitter)

It is vital that the wealth of experience and knowledge of refugee issues gained over the period of the RSAA's existence not be diluted by incorporating its functions into that of a broader review body. The avenue to claim refugee status is a part of NZ's immigration system that serves a different function from the other areas of immigration policy - it is a mechanism that emphasises the right of the individual and relegates that state's security responsibility to a second place for a specific decision. This crucial distinction means that the nature of the expertise and awareness needed to make high quality decisions differs significantly from that requirement form other immigration issues - any body judging the validity of a refugee appeal must have a broad awareness of a variety of issues ranging from the state of the applicant's home country to the fluctuations and reasons for refugee applications worldwide. (Individual submitter)

A number of submitters commented on the status of the Refugee Status Appeals Authority as a Commission of Inquiry, which enables it to hold de novo hearings and seek further information to gain a full understanding of the applicant's situation. These submitters expressed concern that these powers could be lost if the Authority is merged into a wider appeals body.

Other comments made by submitters who oppose the proposal were that:

• it could be viewed as a dilution of New Zealand's commitment to the Refugee Convention
• it would reduce opportunities for reviewing decisions
• it risks prioritising efficiency over integrity of process
• there would be a huge backlog of cases, and/or
• the Removal Review Authority should also be a standalone body as it hears a number of appeals that challenge refugee status determinations.

Another submitter supported the establishment of a single tribunal but suggested that an alternative option would be to establish an immigration division of the District Court.

The possibility of establishing an Immigration Division of the District Court requires serious consideration. Such a division would consider refugee, humanitarian and residence appeals. In these cases it might proceed along the lines of the Environment Division of the Court, with the inclusion of independent assessors to assist the Judge. The Division would also deal with the immigration matters that currently come before the District Court. Such a system would significantly simplify and facilitate the appeal system. At this stage this proposition is submitted as a further option for consideration, rather than as a firm proposal. (Refugee and Immigration Committee, Wellington District Law Society)

A number of submitters made comments on the legislative provisions and administrative practices that should be in place for a new immigration and refugee appeals tribunal or tribunals. These are summarised with the comments on question three below.

Comments on question two

There was a mixed response to this question. Approximately 45 percent of 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 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.

Submitters who considered that appeals on the facts and humanitarian appeals should be heard separately gave various reasons for this view. These included the following:

• it would strengthen individual rights
• different people with different expertise would need to hear the two appeals
• appeal being heard by more than one person creates greater accountability
• it is necessary to maintain impartiality and objectivity
• humanitarian appeals need to be heard separately so the focus is on humanitarian issues, and/or
• it would increase the chances of all the relevant facts and reasons being heard.

Submitters who considered that appeals on the facts and humanitarian appeals should be heard together also expressed a range of views:

• it would enable all the facts and reasons to be heard together and therefore provide a better overall picture
• it is important to weigh everything up and come to a balanced decision, and/or
• hearing appeals together would be in the interests of justice and expediency.

The New Zealand Law Society noted different views amongst its members:

One view is that only those subject to deportation orders have a right to be heard in person while overstayers should have to seek leave to take part in an oral hearing for a limited period of between two to four hours. This approach is aimed at promoting efficiency in the appeal process. There should be specific criteria outlined to allow appellants to seek leave, with the opportunity to request a fee waiver under certain circumstances also. In general, appeals on the facts should be heard on the papers and humanitarian appeals should be open to oral hearings.

The other view is that all appeals against expulsion including elements both of fact and humanitarian appeals should be heard orally. This provides a transparent and accessible system which allows the appellant to respond to any credibility concerns that may be raised. While in the short-term requiring more resources, the long-term benefit is robust and transparent decisions, encouraging respect for the system.

Some submitters considered that both options could be offered to applicants, or that there be a presumption in favour of appeals being heard either separately or together, but discretion for the other approach to be taken in special circumstances.

Comments on question three

Many submitters who commented on the proposed single immigration and refugee appeals tribunal were of the view that it should be completely independent from Immigration New Zealand and supported the proposal that the Chair and Deputy Chair be appointed as District Court judges.

The appeal authorities should be independent of NZIS, such as the judiciary. (Individual submitter)

It would be an advantage for the Chair and Deputy Chair to be given the status of District Court Judges. This encourages confidence in the system and reinforces the independence of the appeal body. (New Zealand Law Society)

Some submitters envisaged the tribunal as more of a panel representing a number of interests including those of Immigration New Zealand and refugee and migrant communities. Other submitters were of the view that the tribunal should comprise specialist members with relevant experience. A number of submitters commented on the need to maintain the existing calibre of membership, with particular reference to the Refugee Status Appeal Authority. One submitter considered that the legislation should require that the Board include at least one member who has experienced disability. Others suggested that at least one member of the public or a human rights organisation be included on the tribunal.

It is recommended that membership of any new 'combined appeal' authority should also allow for the appointment of experienced people from a range of appropriate background and that it not be exclusively the preserve of lawyers. (RMS Refugee Resettlement)

Submitters who supported the retention of a separate refugee appeals tribunal considered it essential that the tribunal retain the Refugee Status Appeal Authority's inquisitorial powers. Some submitters considered that the tribunal should also have greater independence than at present.

Asylum seekers appearing before the RSAA are in a particularly acute situation and it is imperative that the RSAA has the appropriate status to enable a full questioning of the appellant in order to develop a full understanding of their situation. (Human Rights Foundation)

End the quasi-judicial status of the RSAA, make it fully independent. Making the chair and deputy chair judges would put it within the ambit of the Judicature Act 1908. (Individual submitter)

A number of submitters considered that a single immigration and refugee appeals tribunal should also have inquisitorial powers, at least in relation to protection cases and expulsion matters. Many submitters expressed the view that applicants should have the right to be heard in person, rather than appeals being heard on the papers.

A system akin to that presently operated by the Refugee Status Appeals Authority would be appropriate, ie one that is inquisitorial rather than adversarial with the opportunity to make submissions in writing and to appear in person before the authority. (New Zealand Association for Migration and Investment)

With a right of appearance in all onshore cases and perhaps by video in others. This is a reasonable exchange for reduced appeal rights. (Hutt Valley Community Law Centre)

Our preference is for oral appeals rather than appeals on papers only. We suggest applicants are given the option of providing oral submissions in support of their papers. (Churches' Agency on Social Issues)

One submitter suggested that the tribunal make use of subject matter experts to ensure that the interests of parties are properly represented.

Some submitters considered that appeals should be heard by at least two members to provide for greater accountability in decision-making. Another commented that appeals should be heard by five members, with the support of at least four members being required before an appeal may be allowed.

One submitter commented that the tribunal should be a court of record, with decisions reviewable to the District Court. Other submitters considered that there should be an avenue of appeal to the High Court on points of law.

Some submitters commented on the timeframes for appeal. One submitter considered that the existing 42 day period should be maintained because there are sometimes delays in getting the applicant's full file from Immigration New Zealand. Another advocated flexibility in the timeframes to allow for special cases.

With realistic exceptions to appeal periods. Those experiencing domestic violence or other abuse do not count off 42 days on their calendar! The Tribunal should have a similar ability to the employment relations authority to hear out of time appeals in special cases and Immigration Commissioner should be able to refer cases that would otherwise be out of time in the same way that other commissioners currently refer to the Human Rights Review Tribunal after investigation. (Hutt Valley Community Law Centre)

Timeliness of decision-making was raised as an important issue by a number of submitters. Submitters considered that the tribunal needs to be adequately resourced to enable decisions on appeals to be made within a reasonable timeframe.

REC emphasises the need for this tribunal to be accessible, affordable and to deliver robust decisions within a reasonable timeframe. (Rotorua Ethnic Council)

NCIWR would like to draw attention to how important timeliness of robust decision-making is for the women we are working with. While waiting for residency decisions, women escaping violence typically have no way of supporting themselves until they are provisionally accepted for Residency, when a Special Work Permit may be issued. For some women this situation may continue for many months, which, because they have left their relationships and therefore most often their access to community support, makes women very vulnerable. (National Collective of Independent Women's Refuges)

A number of submitters commented on the availability of legal aid. Some submitters considered that legal aid should be available to applicants making a humanitarian appeal, subject to means testing and/or a merits test. One submitter expressed the view that legal aid should only be available to residents and for protection cases. Some submitters considered that there should also be provision to waive appeal fees.

We raise the issue of legal advice and representation for appeals, which is not considered in this paper. It may be appropriate to consider whether appellants who are appealing on humanitarian grounds or the best interests of the child and/or wellbeing of the family should have access to legal aid. This may provide a perverse incentive for lodging an appeal on such grounds to access eligibility for legal aid; however there are existing mechanisms to protect against frivolous claims. The need to ensure that those most vulnerable are afforded access to legal representation to put forward their case is fundamental to ensuring access to justice. (Families Commission)

One submitter commented that careful consideration needs to be given to the confidentiality of information imparted in a refugee claim and referred to section 129T(3)(b) of the 1987 Act.

Some submitters commented on the lack of detail in the discussion paper about the statutory provisions for the proposed immigration and refugee appeals tribunal, with one submitter commenting that further consultation is necessary on these provisions.

Summary of proposal

The discussion paper proposes that the new tribunal (or tribunals) be serviced by the Ministry of Justice. The Department of Labour is presented as an alternative option.

Submitter response

Ninety five submitters responded to this question: 52 submitters responded on behalf of an organisation and 43 responded as private individuals. Organisations that made submissions included immigration consultants, refugee and migrant groups, ethnic councils, human rights groups, community law centres, law societies, other community groups, businesses and one political party.

There was strong support for the Ministry of Justice being responsible for servicing the immigration and refugee appeals bodies. Almost 80 percent of those who addressed this issue indicated support for the proposal. Support was slightly higher among organisations, but was still strong among individuals at approximately 70 percent.

The main reasons given for supporting the proposal were that it provides a clear separation from the initial decision-makers and enhances public confidence in the independence and integrity of the appeals bodies.

The Federation proposes that the Ministry of Justice should administer the appeals process. This ensures a clear separation of the decision makers and allows for transparency and robust decisions to be made in a timely manner. (New Zealand Federation of Ethnic Councils)

This provides for truly independent decision-making at the appeal stages and assists the public perception of independence from Immigration New Zealand. Currently, even though the Refugee Status Appeals Authority and the Removal Review Authority are independent of Immigration New Zealand there is still this perception that both these Authorities are part of and accountable to Immigration New Zealand. (New Zealand Law Society)

I think that that the Ministry of Justice is the most appropriate government department to service the immigration and refugee appeals authorities. By becoming part of the Ministry of Justice, the processes around immigrant and refugee determination will likely be seen by the public as being fairer, and perhaps demystify the process somewhat. (Individual submitter)

A number of submitters indicated a preference for the Department of Labour being responsible for servicing the immigration and refugee appeals bodies. Other submitters considered that both the Ministry of Justice and the Department of Labour should fulfil this role and one submitter suggested the Department of Internal Affairs as an alternative. These submitters generally did not elaborate on their views.

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