The New Zealand Refugee Status Appeals Authority or RSAA, was an independent authority that heard the appeals of people who had been declined refugee status by the Refugee Status Branch of the New Zealand Immigration Service. It was established in 1991, and was replaced by the Immigration and Protection Tribunal in 2010. New Zealand established the RSAA as part of its responsibility to uphold the right of asylum as a result of being a signatory of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol.Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 160. The decisions of the RSAA are not binding, but have had a significant impact on refugee jurisprudence.Rolf Driver, Aimee Bradbury “Refugee status Determination in New Zealand and Australia” (2012) September NZLJ 282 at 286.
The RSAA was composed of a chairperson and 24 Members (part-time and full-time), all of whom were either legal practitioners or retired judges. The most high-profile case adjudged by the RSAA was that of Ahmed Zaoui, whose appeal was eventually successful.
Jurisdiction and statutory authority The RSAA was created under the prerogative powers of the New Zealand Executive (Cabinet) in 1991. The RSAA was later given statutory authority on October 1, 1999, in the Immigration Amendment Act 1999.UNHCR – The UN Refugee Agency “New Zealand: Refugee Status Appeals Authority” Refworld < http://www.refworld.org>. The RSAA's jurisdiction allowed the body to hear and decide any appeal by a person who had been declined refugee status by a Refugee Status Officer (RSO). The RSAA also made decisions regarding direct applications, cancellation of refugee status when the Refugee Convention may have no longer applied, and when recognition of refugee status should cease due to attaining refugee status by forgery, false or misleading information or concealment of relevant information.AR Mackey Annual Report to 30 June 2010 (Refugee Status Appeals Authority, Annual Report 2010) at 1.
The authority was established to work as an independent appellate body. The RSAA was headed by the chairman who had the discretion to appoint people to hear appeals as he saw fit.Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 161. The Immigration Act stated the Chairperson “is responsible for making such arrangements as are necessary or desirable to ensure the orderly and expeditious discharge of the functions of the Authority.Clause 2, Schedule 3C Immigration Act 1987.”
The RSAA was governed by sections 129N – 129Z of the Immigration Amendment Act 1999. The two main functions were: “to hear appeals brought under section 129O from determinations by RSO’s not to recognise a claimant as a refugeeImmigration Amendment Act 1999 s129(2)(a).”; and “to make determinations in relation to a person's refugee status on applications made by RSO’s under section 129L(1)(f).Immigration Amendment Act 1999 s129(2)(b)."
Proceedings For a claim to be successful, the claimant had to establish a "well-founded fear of persecution" by fulfilling the standard of proof. To determine whether this standard had been met, the RSAA had the powers of the Commission of Enquiry to verify facts and produce likely scenarios that may occur upon the claimant's return to their country of origin.Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 165-166. These powers of enquiry were important considering the unique nature of the cases the body was dealing with.Doug Tennent “Immigration and Refugee Law”1st edition, Lexis Nexis, Wellington 2010 at 9.1.5. The RSAA interpreted ‘well-founded fear’ as meaning a ‘real chance’ that persecution would occur. This was to avoid formulating possibilities that may not eventuate. If the RSAA decided there was a real chance of persecution, they would then have to establish whether this fear was due to a reason outlined in the Refugee Convention. The second element of a successful claim was for the appellant to establish the onus of the claim. This was to prevent the decision-maker abusing the power of having the onus.Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 167.
The RSAA operated according to the following principles:Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 168. Gave the "benefit of doubt" to the claimant when facts or scenarios could not be determined. Maintained a low threshold for proving of a ‘real chance’ of persecution. Conducted proceedings in a non-adversarial manner.
Relationship with the Refugee Convention and human rights The RSAA had an interesting legal status. The Refugee Convention was not incorporated into New Zealand domestic law, but a framework was inserted in section 129A of the Immigration Act 1987 which emphasised full compliance with the Refugee Convention.Doug Tenant “Immigration and Refugee Law” 1st edition, Lexis Nexis, Wellington 2010 at 2. This meant that the RSAA could completely focus on the convention, and also consider international jurisdictions and scholarship in their decisions.Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 162. The RSAA used the good faith principle laid out in the article 31 Vienna Convention on the Law of Treaties to interpret the Refugee Convention.Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 163. The RSAA also looked to international human rights treaties for guidance such as the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the International Bill of Human Rights.Doug Tennent “Immigration and Refugee Law” 1st edition, Lexis Nexis, Wellington 2010 at 2.8. Due to its ability to take all of these sources into account, the RSAA was praised for its clarity.Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 163. This opened up an opportunity for the RSAA to make decisions that were significant internationally.
Contribution to international refugee jurisprudence
Failure of state protection A successful claimant must have shown that their state of origin had failed or will fail to prevent a real chance of persecution.Convention Relating to the Status of Refugees article 1A(2). In order to clear up this confusing area, the RSAA added four criteria, which Doug Tennant summarised as being:Doug Tennent “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 172. Persecution committed by state concerned. Persecution condoned by state concerned. Persecution tolerated by state concerned. Persecution not condoned or tolerated by state concerned, but present due to refusal or unable to offer protection. These criteria put an emphasis on state failure to protect as opposed to the focusing on state complicity to persecution.
Member of a particular social group One of the grounds for being a refugee is membership of a particular social group.Convention Relating to the Status of Refugees article 1A(2). The RSAA made numerous important decisions in this area. The RSAA decided to follow the approach in WardCanada (Attorney General) v Ward 2 SCR 689. to determine a particular social group by identifying crucial factors of an individual's identity or conscience. This is referred to as a “protected characteristic.Fatma E Marouf “The Emerging Importance of ‘Social Visibility’ in Defining a ‘Particular Social Group’ and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender” (2008) 27 Yale Law and Policy Review 47 at 56.” The RSAA made high-profile decisions concerning sexual orientation and gender discrimination as particular social groups for the purposes of the Refugee Convention.Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 173.
Sexual orientation In Refugee Appeal No 1312/93Refugee Appeal No 1312/9 [RE GE] (30 August 1995). the claimant had become a practicing homosexual since his arrival in New Zealand. He was originally from Iran and it was well established that homosexuality would be punished if he was sent back home. The RSAA had to decide whether having a certain sexual orientation constituted a membership of a particular social group.Doug Tennent “Immigration and Refugee Law” 1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(e). The RSAA held that homosexuality was a particular social group. The Authority was guided by writings by James C. Hathaway, the US Courts, the Supreme Court of Canada and human rights to come to this decision.Doug Tenant “Immigration and Refugee Law” 1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(e).
This approach towards sexual orientation was cited by the House of Lords in Islam Secretary of State for the Home DepartmentIslam Secretary of State for the Home Department Reported as Re GJ INLR 387. and Regina v Immigration Appeal Tribunal + another ex parte Shah AP.Regina v Immigration Appeal Tribunal + another ex parte Shah AP [consolidated appeals] (1999) 2 WLR 1015 (House of Lords).Doug Tennant “The Contribution of New Zealand Refugee Status Appeals Authority (2007) 15 Waikato L. Rev. 160 at 178.
Gender discrimination Both Refugee Appeal No 2039/93Refugee Appeal No 2039/93 [Re MN] (12 February 1996). and Refugee Appeal No 71427/99Refugee Appeal No 71427/99 (16 August 2000). held that in certain circumstances being a woman can amount to being a member of a particular social group. In Refugee Appeal No 2039/93 the claimant was not a virgin and if she was returned home and forced to marry, this could have potentially resulted in her death. The claimant in this case had also undergone a ‘self-awareness process’ that made her opposed to the oppression of women in Iranian society. In Refugee Appeal No 71427/99 the claimant had divorced her abusive husband and had rediscovered her child he had adopted out without her knowing. If she had been returned to Iran, she would have been subjected to death or imprisonment.Doug Tenant “Immigration and Refugee Law” 1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(f). In both of these cases the RSAA used human rights approaches to decide that in some cases being a woman constituted membership of a particular social group. Particular rights that were considered included: right to privacy,International Covenant on Civil and Political Rights article 17. the right to life,International Covenant on Civil and Political Rights article 6. freedom of thought, conscience and religion,International Covenant on Civil and Political Rights article 18. the right not to be subjected to torture or cruel, inhuman or degrading treatment and punishmentInternational Covenant on Civil and Political Rights article 7. and right not to marry without full and free consent.International Covenant on Civil and Political Rights article 23. The RSAA also took into account Iranian society and its tolerance of domestic violence and the denial to recognise women as human beings possessing the same status as men.Doug Tenant “Immigration and Refugee Law” 1st edition, Lexis Nexis, Wellington 2010 at 6.6.2(f).