Decisions for the Immigration Bill
APPEALS AND APPEAL AUTHORITIES
Further efficiency in the appeals process
- Some submitters and members of the Committee have commented that the appeals process does not appear to be a “one-stop-shop”. This is primarily due to the fact that a non-citizen can be entitled to lodge an appeal at different stages of their interaction with the immigration system as a result of their circumstances changing over time. To further increase efficiency in the appeals process, it is recommended that failed refugee and protection claimants be required to lodge their humanitarian appeal at the same time as their appeal against their declined refugee or protection claim. If their humanitarian appeal is not lodged at that time, it is recommended that failed claimants who subsequently became unlawful do not get further access to a humanitarian appeal.
- To ensure consistency in the appeals process, and to ensure that no perverse incentives to claim refugee or protection status are created, limited visa holders and unlawful non-citizens who have already had the opportunity to lodge an appeal would not be able to access a humanitarian appeal.
- If this recommendation is agreed, it is intended the Tribunal would first consider any refugee or protection matters. If a failed claimant was granted refugee or protection status, their humanitarian appeal would not be considered and they would be refunded their lodgement fee. If their refugee or protection status was cancelled at a later date and they became liable for deportation, they could then lodge a humanitarian appeal consistent with the provisions in the Bill. Chart one details the process.
Chart One: Proposed process for streamlining refugee, protection, and humanitarian appeals
- As can be seen in Chart One, only if the original decision were upheld (ie. an appeal failed) would the Tribunal then consider the humanitarian appeal (on the papers). This would enable a final decision to be made on the claimant’s entitlements under the new legislation and would reduce their incentives to overstay in New Zealand.
- Important aspects of this proposal which should be noted include that:
- there would be no limitations on claiming refugee or protection status
- humanitarian interviews prior to deportation would continue, and
- non-citizens would still be able to request ministerial intervention [z] .
Retention of the Refugee Status Appeals Authority
- Approximately 20 submitters, including Amnesty International, oppose the dis-establishment of the RSAA. It is also an issue that has been raised during oral submissions to the Committee. The United Nations High Commissioner for Refugees (UNHCR) recommends:
- The UNHCR understands the intent of the Tribunal; that is, not to dilute the experience or expertise of the current appeal authorities, but rather to enhance the whole appeals process. It is the quality of the Chair and the members appointed to the RSAA which result it in being held in such esteem.
- The submitters generally fail to understand that there is considerable crossover experience and expertise required for immigration and refugee and protection appeal decision making. This is particularly so in the deportation context. Currently, this is gained through the cross-appointment of RSAA members to the other appeals bodies (and vice versa). Combining the appeal authorities into the Tribunal will not result in the loss of experience and expertise, but rather enhance our appeals processes. For these reasons the establishment of the Tribunal is supported by the current Chairs of the RSAA and the Deportation Review Tribunal.
the experience and high quality of expertise of refugee status determination, currently located in the Refugee Status Appeals Authority, be preserved in the context of any appellate structures and procedures that are envisaged under the Bill.