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Immigration Act 2009

Schedule 2: Provisions relating to Tribunal

You could also call this:

“Rules and procedures for the Immigration and Protection Tribunal”

The schedule outlines rules for the Immigration and Protection Tribunal. Members are appointed for up to 5 years and can be reappointed. The Tribunal can have a deputy chair and must swear an oath before starting. The Tribunal gets support from a government department and members are protected from personal liability for good faith actions.

The Tribunal can receive evidence, take oaths, and investigate as needed for its work. It can summon witnesses and order documents to be produced. Parties can represent themselves or have a lawyer. Hearings are usually public but can be private for some cases. The Tribunal must publish its decisions but can remove names to protect privacy.

The Tribunal makes decisions by majority vote. It can correct minor errors in its decisions. Information about the Tribunal’s procedures must be published online. The Tribunal has its own official seal.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM1441512.

Topics:
Immigration and citizenship > Visas
Immigration and citizenship > Border control
Government and voting > Government departments
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“Rules for protecting and supporting people seeking safety from danger in other countries”

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“List of other New Zealand laws changed by the Immigration Act 2009”

2Provisions relating to Tribunal

1Term of office of members

  1. Every member of the Tribunal holds office for such period not exceeding 5 years as is fixed in the member’s warrant of appointment.

  2. A member of the Tribunal may be reappointed.

  3. Any member of the Tribunal who is not a District Court Judge may at any time be removed from office by the Governor-General for disability affecting the performance of his or her duties, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.

  4. A member of the Tribunal may at any time resign the office by notice in writing to the Governor-General.

  5. A member of the Tribunal continues in office despite the expiry of his or her term of office until—

  6. the member is reappointed; or
    1. a successor to the member is appointed; or
      1. the member is notified that a replacement member will not be appointed; or
        1. the member vacates or is removed from office.

          1. A member who continues in office for any period under subclause (5), unless he or she was removed from office, may act as a member during that period for the purpose of—

          2. completing any proceedings partly or wholly heard by the Tribunal before the expiry of his or her term of office:
            1. hearing any other proceedings.

              1. A member who has resigned, or whose successor is appointed or who will not be replaced (unless he or she was removed from office), may continue in office for the purpose of completing any proceedings that are partly or wholly heard.

              Notes
              • Schedule 2 clause 1(5): replaced, on , by section 106(1) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).
              • Schedule 2 clause 1(6): inserted, on , by section 106(1) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).
              • Schedule 2 clause 1(7): inserted, on , by section 106(1) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).

              2Oath of office

              1. Each member of the Tribunal must, before entering on the performance of any of his or her functions under this Act, swear or affirm before a Judge of the High Court that he or she will faithfully and impartially perform his or her duties as a member of the Tribunal.

              3Deputy chair of Tribunal

              1. The Minister of Justice may designate a member or members of the Tribunal as deputy chair or chairs of the Tribunal and may at any time revoke such a designation.

              2. If the chair of the Tribunal is unable to act as chair by reason of illness, absence from New Zealand, or other sufficient cause, a member designated under subclause (1) may act as chair, subject to subclause (3).

              3. A member may only act as chair in any proceedings involving classified information if the member is a District Court Judge.

              4. The fact that a member designated under subclause (1) acts as chair of the Tribunal is conclusive evidence of the member’s authority to do so.

              4Remuneration

              1. The remuneration of the District Court Judge who is chair of the Tribunal, and of any other member who is a District Court Judge, is that set under the Remuneration Authority Act 1977.

              2. Each deputy chair and the other members of the Tribunal (including an acting member appointed under section 219A)—

              3. must be paid a salary, or a fee, or an allowance, at the rate determined by the Remuneration Authority; and
                1. must be paid any additional allowances (including travelling allowances and expenses) in accordance with the Fees and Travelling Allowances Act 1951.

                  1. Expenses may be incurred, without further appropriation than this clause, to meet the salaries, fees, or allowances determined under subclause (2)(a).

                  2. For the purposes of subclause (2)(b), the Fees and Travelling Allowances Act 1951 applies as if each deputy chair and other member of the Tribunal were a member of a statutory Board as defined in section 2 of that Act.

                  Notes
                  • Schedule 2 clause 4(2): replaced, on , by section 22 of the Remuneration Authority Legislation Act 2022 (2022 No 74).
                  • Schedule 2 clause 4(3): inserted, on , by section 22 of the Remuneration Authority Legislation Act 2022 (2022 No 74).
                  • Schedule 2 clause 4(4): inserted, on , by section 22 of the Remuneration Authority Legislation Act 2022 (2022 No 74).

                  5Administration, staffing, and other resources

                  1. The administration services, staffing, and other resources necessary to enable the Tribunal to carry out its functions under this Act are to be provided by the department of State for the time being designated for the purpose by the Prime Minister.

                  2. The chief executive of the department designated under subclause (1) must consult the chair of the Tribunal about the level of resources to be provided.

                  6Members of Tribunal not personally liable

                  1. No member of the Tribunal is personally liable for any act done or omitted to be done by the Tribunal or any member of it in good faith in pursuance or intended pursuance of the powers and functions of the Tribunal.

                  Compare
                  • 1987 No 74 Schedule 3C cl 10

                  7Proceedings to continue on change in Tribunal

                  1. Where any change takes place in a member constituting the Tribunal (including by reason of any vacancy in the membership of the Tribunal), any proceedings then in progress do not abate and are not affected, but are to continue and are to be dealt with by the Tribunal as if no change had taken place.

                  2. However, the Tribunal may, in its discretion, require evidence to be reheard where necessary.

                  8Evidence

                  1. The Tribunal may receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectively with the subject of the proceedings before it, whether or not it would be admissible in a court of law.

                  2. Subject to subclause (1) and section 368(1), the Evidence Act 2006 applies to the Tribunal as if it were a court.

                  9Tribunal may take evidence on oath

                  1. The Tribunal may take evidence on oath, and for that purpose a member of the Tribunal or a member of the staff of the Tribunal may administer an oath.

                  2. The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.

                  10Powers of investigation

                  1. For the purposes of any of its proceedings, the Tribunal, or any person authorised by it in writing to do so, may—

                  2. inspect and examine any papers, documents, records, or things:
                    1. require any person (including any government agency) to produce for examination any papers, documents, records, or things in that person’s possession or under that person’s control, and to allow copies of or extracts from any such papers, documents, or records to be made:
                      1. require any person (including any government agency) to provide, in a form approved by or acceptable to the Tribunal, any information or particulars that may be required by it, and any copies of or extracts from any such papers, documents, or records.

                        1. The Tribunal may, if it thinks fit, require that any written information or particulars or any copies or extracts provided under this clause be verified by statutory declaration or otherwise as the Tribunal may require.

                        2. For the purposes of its proceedings, the Tribunal may of its own motion, or on application, order that any information or particulars, or a copy of the whole or any part of any paper, document, or record, provided or produced to it, be supplied to any person appearing before the Tribunal, and may in the order impose such terms and conditions as it thinks fit in respect of such supply and of the use that is to be made of the information, particulars, or copy.

                        3. This clause is subject to section 35(3).

                        11Power to summon witnesses

                        1. For the purposes of its proceedings, the Tribunal may of its own motion, or on application, issue in writing a summons in a form approved by the chief executive of the Ministry of Justice after consultation with the chair of the Tribunal requiring any person to attend at the time and place specified in the summons and to give evidence, and to produce any papers, documents, records, or things in that person’s possession or under that person’s control that are relevant to the subject of the proceedings.

                        2. For the purposes of this Act, the power to issue summonses, or to do any other act preliminary or incidental to the hearing of any matter by the Tribunal, may be exercised by the Tribunal, by the chair or deputy chair of the Tribunal, or by an officer of the Tribunal purporting to act by direction or with the authority of the Tribunal or the chair or deputy chair of the Tribunal.

                        3. If a summons is issued by the Tribunal in respect of a person detained in custody, the manager or other person in charge of the relevant prison or other premises, or the other person having custody of the detained person, must produce or allow the production of the person as directed in the summons.

                        4. This clause is subject to section 35(3).

                        Notes
                        • Schedule 2 clause 11(1): amended, on , by section 106(2) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).
                        • Schedule 2 clause 11(2): amended, on , by section 106(3) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).
                        • Schedule 2 clause 11(2): amended, on , by section 106(4) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).

                        12Service of summons

                        1. A summons to a witness must be served by personal service on the person summoned.

                        2. The summons must be served at least 24 hours before the attendance of the witness is required.

                        13Representation of parties

                        1. Any party or person involved in proceedings before the Tribunal, or called upon to appear before the Tribunal, may—

                        2. appear personally; or
                          1. be represented—
                            1. by an agent; or
                              1. by a lawyer.

                              14Service outside New Zealand

                              1. Any document relating to proceedings before the Tribunal may be served outside New Zealand—

                              2. by leave of the Tribunal; and
                                1. in accordance with regulations made under this Act.

                                  15Privileges and protections of witnesses, counsel, etc

                                  1. Every person has the same privileges in relation to the giving of information to the Tribunal, the answering of questions put by the Tribunal, and the production of papers, documents, records, and things to the Tribunal as witnesses have in courts of law.

                                  2. Every witness giving evidence, and every counsel or agent or other person appearing before the Tribunal, has the same privileges and immunities as witnesses and counsel in courts of law.

                                  16Witnesses’ fees, allowances, and expenses

                                  1. A witness appearing before the Tribunal under a summons is entitled to be paid witnesses’ fees, allowances, and expenses in accordance with the scales prescribed by regulations under the Criminal Procedure Act 2011.

                                  2. The person requiring attendance of the witness must pay or tender to the witness the fees, allowances, and expenses at the time the summons is served, or at some other reasonable time before the hearing.

                                  Notes
                                  • Schedule 2 clause 16(1): amended, on , by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

                                  17Decisions of Tribunal

                                  1. If the Tribunal consists of more than 1 member on an appeal or matter, the decision on it must be a majority decision.

                                  2. If the members are evenly divided, the appeal or matter must be determined in favour of the appellant or affected person.

                                  3. A decision of the Tribunal must be given in writing, and include reasons both for the decision and for any minority view.

                                  4. An interim oral decision may be given if the Tribunal considers it necessary in the circumstances, but the decision must subsequently be put in writing and subclause (3) applies accordingly.

                                  5. The Tribunal must notify, and provide a copy of its decision to, the appellant or affected person and the Minister, the refugee and protection officer, or the chief executive (as the case may be).

                                  6. A decision of the Tribunal is final once notified to the appellant or affected person.

                                  Compare

                                  18Public access to hearings

                                  1. Subject to subclauses (2) and (3), every oral hearing is open to the public.

                                  2. The Tribunal may receive any particular evidence in private, or deliberate in private as to its decision on the appeal or as to any question arising in the course of the proceedings.

                                  3. If an appeal is brought by a claimant, a refugee or a protected person, or a person formerly recognised as a refugee or a protected person, the Tribunal must conduct the hearing in private.

                                  4. The Tribunal may make an order prohibiting the publication of any evidence received by it, or any report or description of the proceedings or of any part of the proceedings, in respect of any appeal or matter before the Tribunal.

                                  5. This clause is subject to section 259.

                                  18AUse of electronic facilities to hear matters

                                  1. The hearing of a matter or any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the Tribunal or the chair of the Tribunal considers it appropriate and the necessary facilities are available.

                                  Notes
                                  • Schedule 2 clause 18A: inserted, on , by section 106(5) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).

                                  18BOnline publication of information about procedures, time frames, and progress of decisions

                                  1. The following information must be published on an Internet site maintained by or on behalf of the chief executive of the Ministry of Justice:

                                  2. information about the purpose of the Tribunal and how to commence proceedings:
                                    1. any requirements that must be met to bring proceedings:
                                      1. guidelines on how and when parties may obtain information on the progress of their case and when a decision may be expected.

                                        Notes
                                        • Schedule 2 clause 18B: inserted, on , by section 106(6) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).

                                        19Publication of decisions

                                        1. Subject to subclauses (2) and (4) and clause 18(4), the Tribunal must publish its decisions.

                                        2. Any publication for research purposes by the Tribunal of a decision made by it in relation to refugee or protection appeals or matters, other than publication to persons described in subclause (3), must be edited in a way so as to remove—

                                        3. the name of the appellant or affected person; and
                                          1. any particulars likely to lead to the identification of the appellant or affected person.

                                            1. Subclause (2) does not apply to publication—

                                            2. to persons involved in the appeal or matter; or
                                              1. to persons involved in the administration of this Act; or
                                                1. permitted under section 151.

                                                  1. The Tribunal may, in any other case, edit the decision in such a way as to remove the name of the appellant or any other person, and any particulars likely to lead to the identification of the appellant or other person, before publishing it to persons other than persons involved in the appeal or involved in the administration of this Act.

                                                  2. This clause is subject to section 259.

                                                  Notes
                                                  • Schedule 2 clause 19(1): amended, on , by section 106(7) of the Tribunals Powers and Procedures Legislation Act 2018 (2018 No 51).

                                                  20Correction of errors

                                                  1. The Tribunal may correct a decision it gives to the extent necessary to rectify—

                                                  2. a clerical mistake; or
                                                    1. an error arising from an accidental slip or omission; or
                                                      1. a material miscalculation of figures or material mistake in the description of any person, thing, or matter referred to; or
                                                        1. a defect of form.

                                                          1. A correction may be made on application by a party, or on the Tribunal’s own motion.

                                                          21Tribunal to have seal

                                                          1. The Tribunal must have a seal, which must be judicially noticed in all courts and for all purposes.