8.1 How should the independent appeal bodies be structured?
This section discusses the structure of the independent immigration and refugee appeal bodies. Table 10 below sets out the possible circumstances where someone may appeal an immigration or refugee decision (depending on decisions reached in Section 7: Access to review and appeal and Section 14: New Zealand’s role as an international citizen).
Table 10: Summary of possible avenues for independent appeal
Decision to be appealed |
Grounds for appeal |
|---|---|
Residence decisions:
|
Was the initial decision correct? Should an exception to policy be made? |
All refugee status/protection declines |
Does the person meet the threshold for protection set out in the applicable conventions? |
Liability for deportation (appeals on the facts):
|
Is the person actually liable for deportation? |
Humanitarian appeals against expulsion:
|
Are there exceptional circumstances of a humanitarian nature? Is it contrary to the public interest to allow the person to remain? |
Status quo
There are currently four immigration and refugee appeals authorities:
- the Residence Review Board (RRB)
- the Refugee Status Appeals Authority (RSAA)
- the Removal Review Authority (RRA), and
- the Deportation Review Tribunal (DRT).
The Residence Review Board, Refugee Status Appeals Authority and Removal Review Authority are serviced by the Department of Labour and share some cross-appointed members. They consist of both full-time and part-time members. The Deportation Review Tribunal is serviced by the Ministry of Justice and consists of part-time members only.
In addition to the appeal authorities, judicial appeals on the facts against liability for expulsion are currently heard by the High Court, in the case of residence revocations, citizenship deprivation and deportation on grounds of being a suspected terrorist. The courts also hear appeals against criminal convictions.
Table 11: Flows through the current appeals authorities 2004/05
|
RRB |
RSAA |
RRA |
DRT |
|---|---|---|---|---|
Number of appeals lodged |
408 |
360 |
410 |
50 |
Number of decisions made |
418 |
570 |
300 |
28 |
Average time for decision-making |
16.1 months* |
8.7 months* (excluding backlog) |
8.5 months* |
17.9 months** |
Appeals on hand 31 October 2005 |
440 |
302 |
227 |
74 |
* Average time from receipt of appeal to dispatch of decision 1 Aug–31 Oct 2005
** Average time from receipt of appeal to dispatch of decision 2004/05
What works well?
The current system of independent immigration and refugee tribunals has been successful in creating bodies of experts on immigration and relevant international law. It provides a trusted avenue of redress that helps avoid extensive litigation and judicial review. This is significant, not only in that it can reduce delays in final decisions, but in that it allows immigration matters to be heard by a consistent group of experts. New Zealand’s system is well regarded internationally.
The Residence Review Board, Refugee Status Appeals Authority and Removal Review Authority have considerably reduced their backlogs (discussed below) and are on track to eliminate them.
What are the problems/opportunities?
Each of the appeal authorities has been established for a single purpose. This means that a person who has more than one appeal right has to appeal to multiple authorities. This can create extended delays, particularly in reaching final expulsion decisions. It is inefficient and ineffective for different authorities to be assessing the same cases for credibility and for the particulars of the case. For example, in 2004/05, 114 of 315 appeals (36 percent) to the Removal Review Authority were failed refugee status claimants, most of whom had previously appealed to the Refugee Status Appeals Authority.
The current structures do not lend themselves to new review or appeal rights being introduced (such as that proposed in Section 9: The use of classified information), or existing appeal rights being removed. (The possibility of removing some or all residence appeal rights is discussed in Section 7: Access to review and appeal.)
All four authorities 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 authorities. 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 significant delays can obstruct New Zealand’s ability to regulate immigration efficiently and effectively.
The ability for sharing knowledge and expertise is limited by the current legislative structures. The Deportation Review Tribunal and the Removal Review Authority both consider very similar tests, requiring similar expertise and knowledge of domestic law and international human rights law. Yet the different structure of the authorities does not facilitate the sharing of knowledge and expertise. These difficulties are further exacerbated because the bodies are administered by different departments.
As noted above, three of the authorities are currently reducing their backlogs. There may, however, be an opportunity to consider more appropriate structures to facilitate efficient and effective decision-making, be adaptive to change and create understandable and accessible legislation.
What do other countries do?
Australia, Canada and the United Kingdom (UK) do not have separate tribunals for appeals against declined immigration decisions and decisions to remove or deport as New Zealand has. Having said this, Australia and Canada’ssystems of appeal are complex and result in significantly more appeals through the courts than New Zealand experiences.
Australia has the Migration Review Tribunal that deals with immigration appeals, the Refugee Review Tribunal that deals with refugee appeals, and the Administrative Appeals Tribunal that deals with administrative appeals across government departments. In addition to appeals through these bodies, 4,264 appeals to the courts were lodge against departmental or tribunal decisions in 2004/05.
In Canada, the Immigration Appeal Division of the Immigration and Refugee Board deals with immigration appeals, and appeals against refugee declines are made to the courts. In practice there are high numbers of appeals to the Federal Court on a range of immigration matters.
The UK has recently established a new single Asylum and Immigration Tribunal, creating a “one stop shop” approach, with limited avenues for further appeal. Under this system, a person may only lodge one appeal, and all possible considerations (facts and humanitarian appeals) are heard together. The options below draw on aspects of the UK model.
Proposal
The status quo is not considered a practical option for the future. Two options for a single tribunal are presented that differ only in detail. While there is no preference for Option A or Option B at this stage, there is a preference for establishing a single tribunal.
Option A – Single immigration and refugee appeals tribunal (tiered expulsion appeals)
Under Option A, a single immigration and refugee appeal tribunal would be established. It would incorporate all streams of immigration and refugee appeals. The tribunal would hear appeals against:
- residence declines (if applicable)
- refugee/protection declines
- liability for expulsion on the facts, and
- expulsion on humanitarian grounds.
Appeals against liability for expulsion would include appeals against refugee cancellation, findings of residence fraud by the Department of Labour, findings that permit conditions were not met and appeals against deportation in the case of suspected terrorists.
The appeal on the facts and the humanitarian appeal could be heard separately, but streamlined, for example, by requiring the same member to hear each appeal and requiring them to be heard within a short period of each other (for example, 14 days).
Figure 4: Option A – Single immigration and refugee appeals tribunal (tiered expulsion appeals)
Benefits and costs
Creating a single tribunal would allow for greater efficiencies in the appeals system. The same member could hear the appeal on the facts and the appeal on humanitarian grounds. The delay between hearing the two could be reduced. 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. In this respect, it would be both fairer to the individual and provide for a more robust immigration system. In particular, there would be greater efficiencies in hearing humanitarian appeals.
The numbers of appeals considered by the current authorities are not high by international standards, or in comparison to migration flows to New Zealand. They are changeable and can peak and flow. On this basis, arguably, New Zealand cannot sustain four individual tribunals without creating significant delays in decision-making.
Under this option, a single tribunal could consist largely of full-time permanent members and have better flexibility to respond to changes in flows of appeals. This flexibility could help in reducing the likelihood of backlogs and delays. This option could result in many of the benefits of clustering tribunals identified by the Law Commission (Delivering Justice for All: A Vision for New Zealand Courts and Tribunals) including:
- 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.
A single tribunal would better support the options identified in Subsection 7.2 to streamline avenues of appeal against expulsion. The tribunal would be in a stronger position to take on avenues of appeal that currently go to the High Court, such as appeals against residence revocation due to fraud. The current Refugee Status Appeals Authority has expertise in refugee cancellation on the basis of fraud.
There can be drawbacks in hearing too many different appeals together in cases where the issues are complex. Having a process where appeal on the facts is heard in the first instance, followed by a humanitarian appeal, would work to address this.
While this option would create efficiencies in the long term, there would be initial establishment and transitional costs.
Option B – Single immigration and refugee appeals tribunal (single expulsion appeal for non-refugee related appeals)
This option mirrors Option A, except that appeal on the facts and the humanitarian appeal could be heard together in the expulsion stream, where a person was eligible for both. It is akin to the recently-established system in the UK that provides for a single right of appeal against expulsion. The tribunal could have the discretion to decide questions of liability and humanitarian circumstances separately if the case warranted it.
It is not proposed that refugee status/protection and humanitarian appeals be heard together. This would create a hearing that may be too difficult to manage, particularly in light of the proposals to extend protection determination set out in Section 14: New Zealand’s role as an international citizen. As noted, they could be streamlined by allowing the same member to hear each appeal and by reducing the period between the appeals to 14 days.
Figure 5: Option B – Single immigration and refugee appeals tribunal (single expulsion appeal)
Benefits and costs
As with Option A, Option B could significantly reduce delays in assessing whether or not to expel a person from New Zealand. A risk of Option B is that the appeal hearing and decision-making process could become complex in the expulsion stream. As with Option A, while there would be significant efficiencies in the long term, there would be initial establishment and transitional costs.
How would Options A and B differ from the status quo in practice?
Example 1
- A person who arrived in New Zealand was found to be a refugee. They became a permanent resident on that basis. Two years later, the Department of Labour found that the person obtained their refugee status by fraud and cancelled their refugee status.
- Under the status quo, the person could appeal to the Refugee Status Appeals Authority against the refugee status cancellation (on the facts). The Department of Labour could then revoke their residence permit on the basis of a declined appeal, and the person could appeal to the High Court against the revocation on the facts (again). The person could then appeal to the Deportation Review Tribunal to allow them to stay on humanitarian grounds.
- Under Options A and B, the person could appeal to the single tribunal on the basis that they did not commit fraud. If the tribunal dismissed the appeal, the person could then appeal again to the tribunal to allow them to stay on humanitarian grounds. The same member could hear both appeals within a shortened timeframe.
Example 2
- A person becomes a New Zealand resident through the partnership policy. Two years later, the Department of Labour finds that the person obtained residence by fraud.
- Under the status quo, the Department of Labour could revoke their residence permit. The person could appeal to the High Court against the residence revocation on the facts. They could then appeal to the Deportation Review Tribunal on humanitarian grounds.
- Under Option A, the person would be liable for expulsion and could appeal to the tribunal against liability for expulsion. The person could then appeal again to the tribunal to allow them to stay on humanitarian grounds. The same member could hear both appeals within a shortened timeframe.
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Under Option B, the person would be liable for expulsion and could lodge a single appeal to the immigration and refugee tribunal. The tribunal would consider, in a single decision, whether the person obtained residence through fraud and, if so, whether there were humanitarian grounds to allow them to stay.
An alternative considered: Separate immigration and refugee tribunals
Under a further alternative, a single immigration appeal tribunal incorporating all streams of immigration appeals would be established, but refugee status/protection appeals would remain in a separate tribunal.
Figure 6: Separate immigration and refugee appeals tribunals
Benefits and costs
This alternative may be more likely to maintain the integrity of the refugee status determination process. The success and international standing of the Refugee Status Appeals Authority may be attributed to the single focus of the Authority and its independence from immigration decision-making.
This option removes the possibility of streamlining the hearing of refugee/protection appeals and humanitarian appeals by a single authority. It also removes the possibility of streamlining appeals against refugee status cancellation with any humanitarian appeal against expulsion.
This option would not create opportunities for sharing of expertise between the authorities. Given the small number of flows through all of the current authorities, this option may not be justifiable long term. For these reasons, this alternative is not considered to be best placed to meet the objectives of the review.
Note on detail of independent appeals
The legislation will need to set out a number of detailed provisions regarding any appeals body. These include:
- in which cases, if any, there should be a further appeal to a higher court on a point of law
- who may be appointed as the chair, deputy chair(s) and members
- how many members should determine an appeal
- who may have access to legal aid (determined by the Legal Services Act 2000)
- whether appeals should be determined on the papers or following a hearing, and
- whether the tribunal is deemed to be a commission of inquiry.
Options regarding the detailed legislative arrangements for independent appeal have not yet been developed. At this stage, it is envisaged that any tribunal that had jurisdiction for multiple streams of appeal could have different arrangements for different streams. For example, it is likely to be appropriate for residence appeals to be heard on the papers, and for deportation and refugee appeals to have an oral hearing. It is likely that legal aid would be considered appropriate for residents and protection claimants, but not overstayers.
It may also be appropriate that the chair and deputy chair(s) of the tribunal be appointed with the status of District Court Judges. Section 9: The use of classified information puts forward options that would require at least one member of the tribunal to be a Judge. Appointing the chair and deputy chair(s) of the tribunal with the status of District Court Judges would ensure that the options discussed in Section 9 are possible and sufficiently resourced to deal with appeals against decisions using classified information.
You are welcome to put forward your views on these details.
8.1 Key questions
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8.2 Which government department should service the immigration and refugee appeals bodies?
This subsection considers which government department should service the independent immigration and refugee appeals tribunal (or tribunals).
Status quo
Under the current Immigration Act, the Residence Review Board, Removal Review Authority and Refugee Status Appeals Authority are serviced by the Department of Labour. The Deportation Review Tribunal is serviced by the Ministry of Justice.
What works well?
The Residence Review Board, Removal Review Authority and Refugee Status Appeals Authority remain entirely independent from the Department of Labour in their judicial decision-making. By being serviced by the department, they maintain useful linkages in terms of keeping up-to-date with policy developments and information-sharing.
What are the problems/opportunities?
While the authorities serviced by the Department of Labour are fully independent, from time to time, there is a perception that they are not. This may affect their reputation and public confidence in the authorities.
The Law Commission’s report Delivering Justice for All recommends that eventually all tribunals be brought under a single umbrella within the Ministry of Justice. The Law Commission specifically noted that the independent immigration and refugee authorities were an example where perceptions of independence could be improved by moving to Justice.
The government’s response to the Law Commission’s report stated that:
“The government acknowledges that, in some cases, the housing of a tribunal in a related department or ministry may lead to the perception of a lack of independence. Where, as part of the consideration of a tribunal against the proposed guidelines, a potential perceived lack of independence is established, that tribunal will be treated with some priority for consideration of transfer to the Ministry of Justice. This will include consideration of tribunals highlighted by the Commission, including the Removal Review, Residence Appeal and Refugee Status Appeals Authorities.”
Source: Government Response to Law Commission Report on Delivering Justice for All, August 2004.
Further, under the options to amalgamate all or some of the current authorities, it would not be possible to retain the current split between the Department of Labour and the Ministry of Justice.
What do other countries do?
In Australia, Canada and the UK, the independent immigration and refugee appeals tribunals are all serviced by the respective immigration departments.
Proposal
As noted, under the proposal for single tribunal, a split between the Ministry of Justice and the Department of Labour would not be possible. Under Option A, the new tribunal would sit with the Ministry of Justice. Under Option B, the new tribunal would sit with the Department of Labour. At this stage, Option A is preferred.
Option A – The tribunal to sit with the Ministry of Justice
The new tribunal (or tribunals) would be serviced by the Ministry of Justice.
Benefits and costs
This option would be in line with the recommendations of the Law Commission’s report Delivering Justice for All. It would ensure that the tribunal was perceived to be completely independent from the Department of Labour. It may also be perceived to provide for more integrity in the immigration system. The Ministry of Justice currently has responsibility for supporting a range of tribunals.
If the appeal bodies were to move to the Ministry of Justice, it would be important for core information-sharing mechanisms to continue. For example, close cooperation with the Department of Labour would be necessary where tribunal decisions lead to release from detention or expulsion. For this option to work, it may be desirable to set out relevant protocols in legislation. This option would not prevent the tribunal from engaging with the Department of Labour, for example, by undertaking seminars from time to time.
There would be transitional costs associated with this option.
Option B – The tribunal to sit with the Department of Labour
The new tribunal (or tribunals) would be serviced by the Department of Labour.
Benefits and costs
Under this option, while independent from the Department of Labour, the tribunal could maintain useful linkages. These linkages include keeping up-to-date with policy developments, information sharing on relevant files and using their expert knowledge to help up-skill officials.
While such linkages may be considered beneficial from an operational perspective, they may add to perceptions that the tribunal was not entirely independent from the Department of Labour. There may also be a need to move the tribunal to the Ministry of Justice at a later date in light of the work coming out of the Law Commission’s report.
8.2 Key question
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