RSB Pilot threatening to undermine the quality of representation for refugee claimants

The Refugee Status Branch (RSB) has recently imposed a pilot for processing refugee and protected person status claims.

RSB

A key change is that the RSB proposes to have RSB interviews set down six to eight weeks after a claim for refugee and protected person status is lodged and that a statement must be filed two weeks (ten working days) before an interview, i.e. four to six weeks after a claim is lodged. This potentially reduces preparation time by one third, as currently RSB interviews are set down in practice seven weeks after a claim is lodged with a statement due five working days before interview, i.e. six weeks after a claim is lodged.

The ADLS Immigration & Refugee Law Committee is concerned that the Refugee Bar was not properly consulted about these changes. Throughout the initial submission stage, the Refugee Bar expressed its serious concerns that the current preparation time of six weeks was inadequate and was expressly against any proposal to abbreviate the preparation time for statements to be provided to the RSB. This is particularly so as the statements are the foundation for a claim for refugee and protected person status – if the statement is rushed, incomplete or deficient in any way, it will undoubtedly and significantly prejudice the claim.

What appears to be missing from this pilot is the interests of the refugee claimant. Here, RSB’s desire for extra time to carry out pre-interview research should not be at the refugee claimant’s expense. Such an approach cannot be said to accord with the required natural justice and fairness.

The RSB claims that the “[pilot] procedures have been developed pursuant to section 136(3) of the Immigration Act 2009”. However, the Committee queries whether the pilot can be correctly premised upon this section, which provides that “the refugee and protection officer may determine the procedures that will be followed on the claim”. The section empowers the officer to adopt the procedures required by a particular claim; it does not invest in the RSB the power to impose a pilot scheme which seeks to abbreviate the time for statements and interviews regarding all claims.

It is to be noted that legal aid cannot be applied for until a claim is filed. Thus, to accommodate these time pressures, refugee practitioners are often acting without a grant of legal aid for a number of weeks. This causes high stress and difficulties for practitioners trying to maintain a refugee law practice. Unsurprisingly, there has been an exodus of lawyers from this area of law which will be exacerbated by the pilot’s timeline changes. Lawyers will strive to meet the timelines, to their detriment, because they do not want to get the officer processing the claim offside causing damage to their client’s claim. Thus, aside from real concerns about the quality of representation, this is also an issue of health and wellness for members of our profession.

During discussions with the RSB, the ADLS Immigration & Refugee Law Committee was assured that, for the duration of the pilot process, refugee interviews would be set down eight weeks after lodgment of a claim and that, if possible, statements would be filed within ten working days prior to interview. Alternatively, if RSB interviews were set down sooner than eight weeks, then the standard five day filing period would apply.

The MBIE Refugee Unit National Manager has confirmed that, during the pilot, the RSB wished to receive continuous feedback from practitioners. Most importantly, he noted that no complaint or other action would be taken against practitioners unable to meet the new timeframes, as any problems or issues would be considered to be part of the pilot review process. The RSB has also stressed that the pilot would be operated with a high degree of flexibility. Irrespective of these assurances, the Committee wishes to note that the pilot’s timeframes are not formal deadlines (as in Court or Tribunal proceedings) but merely preferred timelines.

The ADLS Immigration & Refugee Law Committee is highly concerned at both the process followed by the RSB to commence this pilot and the proposed changes. The RSB has failed to engage in meaningful consultation with the Refugee Bar and has pressed on with implementing a pilot despite clear concerns raised by the Committee in a preliminary discussion and in its submissions regarding the original review. In particular, the RSB has ignored submissions concerning workable timeframes and has put counsel and claimants under further pressure, while giving its staff more preparation time for interviews.

The Committee considers that, if the RSB needs more time to complete its processes, it should extend the timeframes rather than carve out time from the claimant’s preparation. The Committee does not want timeliness to overtake quality in an area of law which can so meaningfully impact upon a claimant’s life. Moreover, there is real concern that these “flexible” timeframes will solidify into policy if they are allowed to proceed unchallenged.

The ADLS Immigration & Refugee Law Committee has been consulting extensively with the Refugee Bar and will continue to do so. The Committee is also in the process of preparing formal correspondence to the RSB, MBIE managers and the Minister of Immigration about the inadequate consultation process and the above concerns regarding the pilot’s timeframes

The RSB has advised that the pilot will run until 30 June 2017.

The Committee invites practitioners to contact the Committee Secretary, Jodi Libbey, at jodi.libbey@adls.org.nz, or the Committee Convenor, Deborah Manning, at deborah@deborahmanning.co.nz, with any comments or concerns. 

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