Regulatory Impact Statement – Immigration Act: Review and appeal
Statement of the Public Policy Objective
To create an appeals system that is more transparent, easier to use, efficient and flexible, while maintaining an appropriate level of fairness.
Statement of Feasible Options
A single independent appeals tribunal
Policy Problem and Magnitude: The current system creates delays in reaching final decisions to deport due to a person having access to multiple appeals in the deportation context. It is inefficient and ineffective for different appeal bodies to be assessing the same cases for credibility and particulars. The system is complicated and can be confusing to appellants. It means that a person has to become unlawful in New Zealand to access a humanitarian appeal, where this may not be necessary.
Status Quo: The Immigration Act 1987 (the 1987 Act) establishes four independent appeals bodies, the Residence Review Board (RRB), the Removal Review Authority (RRA), the Deportation Review Tribunal (DRT), and the Refugee Status Appeals Authority (RSAA). In addition to the appeal bodies, appeals on the facts against deportation are currently heard by the High Court in the case of residence revocations and deportation on grounds of being a suspected terrorist. The courts also hear appeals against criminal convictions. The Minister of Immigration may intervene in a case at any point, either before or after a person has appealed a decision (where appeal is available).
Humanitarian appeals lodged by persons unlawfully in New Zealand must be determined on the papers. Other appeals may have hearings.
The existing authorities have a range of powers, for example, the RSAA and DRT have the powers of a Commission of Inquiry. While the existing authorities may seek information from any source, they have no explicit powers relating to requiring biometric identity information.
Only refugee claimants and residents may have access to legal aid.
Alternative Option: Two separate immigration and protection tribunals. This alternative is not preferred as it would not allow for appeals from persons who have access to protection-related appeals and immigration-related appeals to be determined together.
Preferred Option: The Bill would create a single independent Immigration and Protection Tribunal (the tribunal) that replaces the functions of the RRB, RRA, RSAA and DRT. The tribunal would be administered by the Ministry of Justice or the Department of Labour (the Department).
Humanitarian appeals lodged by persons in New Zealand unlawfully or temporary entrants would generally be determined on the papers but the tribunal may request a hearing.
The powers of the existing authorities would largely be mirrored in the Bill. In addition, the tribunal would have the power to require the Department to collect biometric information from an appellant for the purpose of identity verification.
Legal aid would be extended to the single protection determination process, but otherwise mirror the status quo.
Net benefits: The preferred option would benefit the government by creating an expert appellate body on all immigration and international protection law matters that could deal with appeals quickly and fairly. It would benefit appellants by having an appellate body with higher standing and more perceived independence, dealing with their cases, being more transparent and easier to use, and being more consistent. It would benefit appellants by ensuring both legal aid and hearings are available where appropriate. It would benefit the integrity of the immigration system as a whole, and support the Law Commission’s recommendation that tribunals should be clustered to allow them to be more prominent, more obviously accessible, more independent and authoritative, and to secure greater efficiencies and economies of scale.
The current number of Full Time Employee (FTE) members of the tribunals is 20.15, plus five part-time DRT members. Based on the proposals for the single tribunal, the number of FTE members required is forecast to drop to 14 by year five of implementation. In the first four years of implementation additional members may be required to cover the possible moderate increase in protection claims and to allow the tribunal to develop the new processes and expertise required for the new appeals processes proposed.
Avenues of appeal
Policy Problem and Magnitude: Many appellants have access to more than one immigration or protection-related appeal. In some cases, particularly protection fraud, a person may have access to multiple appeals to different authorities and the courts on the same set of facts. 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.
Status Quo: The following persons may currently make an independent appeal: residence applicants anywhere in the world, declined refugee status claimants, persons unlawfully in New Zealand (including failed refugee claimants) against removal on humanitarian grounds, New Zealand residents against a departmental finding of fraud (including persons whose refugee status has been cancelled on the basis of fraud and who have appealed that decision to the RSAA), New Zealand residents 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:
- An appeal by an overstayer 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.”
- 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.
- 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.”
There are no appeal rights for temporary entrants or residents who become liable for deportation on national security grounds.
Appeals to the High Court against residence revocation must be made within 21 days of the revocation notice. Appeals to the DRT must be lodged within 21 days of revocation or deportation notice. Appeals to the RRA must be lodged within 42 days of a person becoming unlawfully in New Zealand. Appeals to the RSAA must be made within five or ten days of notice. Appeals to the RRB must be lodged with 42 days of a notice of a residence decline.
Alternative Options: Limiting the kinds of residence applicants who could lodge an independent appeal to those onshore or offshore with a New Zealand sponsor and limiting humanitarian appeals against deportation to those with a New Zealand sponsor. These options were not preferred on the basis of the significant public support for the status quo and small benefits to be gained from them.
Preferred Option: The current avenues of appeal would be available through the tribunal, including those that currently go to the High Court. However, there would be only one opportunity to contest deportation on the facts, either to the tribunal or the courts in the case of a conviction. (This is a change to the status quo in some cases only. Many persons who became liable for deportation on the basis of a criminal conviction currently only get an appeal on humanitarian grounds, not the facts. Other cases, for example protection and residence fraud cases, may have access to two or three appeals on the facts including to the RSAA and the High Court). In summary the tribunal would determine appeals against:
- declined residence applications
- deportation on the facts only where the Department found that residence was obtained through fraud or conditions of stay were not met
- deportation on humanitarian grounds within 42 days of staying beyond the validity of a visa or notification of deportation liability
- declined protection claims, and
- deportation of persons with protection status on the grounds of international obligations.
Appeals to the tribunal must generally be lodged within 28 days of notice, or within 42 days of staying beyond the validity of a visa. Protection appellants have a shorter time period but out of time appeals are allowed in such cases. All grounds for appeal must be presented on lodgement. Humanitarian appeals would be allowed only where exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh for the person to be deported from New Zealand, and it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand (current RRA test).
Where a person claims protection, or is a protected person who becomes liable for deportation, the tribunal must assess the matters of fact, including the international obligations, followed by humanitarian grounds, where applicable.
Net benefits: The preferred option would benefit government by creating a more efficient appeals system. It would benefit successful appellants by ensuring that their appeals were allowed earlier. It would ensure the unsuccessful appellants could be deported earlier, where applicable. The system would be both fairer to the individual and provide for a more robust immigration system. There may be perceived costs to appellants in that in some circumstances they may have fewer opportunities to contest deportation on the facts of the matter. However, multiple appeals on the same facts cannot be justified and do not increase fairness.
An appeals lodgement period of 28 days will benefit some appellants, where this is increased from 21 days.
Policy Problem and Magnitude: Judicial review can be sought in regard to every decision in the immigration process. The availability of appeals on points of law is inconsistent across the existing authorities, and across independent tribunals in New Zealand.
Status Quo: Currently judicial review may be sought for a decision made under the 1987 Act within three months of the date of the decision. Appeals on points of law may not be made from the RSAA, but may be made from the other appeals bodies.
Preferred Option: Judicial review would be allowed within 28 days of notification of the decision, with the exception of decisions that have a de novo appeal to the tribunal. There would an ability to appeal a decision from the tribunal to the High Court on a point of law, within 28 days of the decision, with leave of the High Court. The High Court could hear judicial review and appeals on points of law together.
Net benefits: The preferred option would benefit the government and the integrity of the immigration system by ensuring that tribunal decisions can be challenged, but only in worthy cases to prevent systematic delays. It would benefit appellants, particularly protection appellants who may not currently appeal on points of law, by ensuring that there is an opportunity for judicial review and an appeal on a point of law. There may be some costs to government from allowing appeals on points of law in regard to protection appeals, where there currently is no such appeal right. There may be a cost to appellants who do not receive leave of the High Court to appeal.
Statement of Consultation Undertaken
Stakeholder Consultation: There was mixed support for the proposal for a single appeals tribunal from public submissions. Those that did not support the proposal were largely concerned that the expertise and standing of the RSAA would be lost. The proposal attempts to address these concerns by clearly establishing in the legislation a legal framework for refugee and protection appeals.
Government Departments/Agencies Consultation: No significant concerns have been raised by other agencies consulted on these proposals.