Today is the last day for submissions on the review of the immigration act. Mine is below, and hot off the press. I had meant to finish it earlier so you could plagiarise to your hearts content… But if you have time today, then feel free to copy and paste it, or rewrite it in your own words, or whatever. Their proposals on the use of classified information are pretty draconian, and I reckon its worth submitting SOMETHING, at least, to register your discontent with their suggestions.

Submissions need to be emailed to actreview@dol.govt.nz, or submitted online at www.dol.govt.nz, no later than Saturday 1 July – about now, NZ time, I believe.

Submission on the New Zealand Immigration Act Review

Introduction: general remarks

Ø I welcome the review of New Zealand’s immigration legislation.

Ø The Immigration Act Discussion Paper states that objectives of the review include ensuring compliance with international obligations and establishing “fair, firm and fast decision-making processes”.

Ø It is crucial that new legislation protects the rights of all those who are subject to it, and that fair judicial processes are ensured. This is necessary for New Zealand’s compliance with international obligations, and the Act’s stated objectives, to be substantive, rather than mere lip-service.

Ø In particular, it is crucially important that there are appropriate checks and balances for the use of classified information. It is also crucially important that the Refugee Status Appeals Authority be retained as an independent appeal body.

Section three: Purpose and Principles

I believe that the Immigration Act should include a statement of purpose and principle.

New Zealand prides itself on being a progressive, principled nation that doesn’t pander to international political dictates – our nuclear-free policy epitomises this. Therefore, the statement of purpose and principle must emphasise our country’s commitment to justice and human rights.

The statement of purpose should underscore:

- Our commitment to acting as a good global citizen that values human rights

- Our desire to maintain fair and transparent immigration decision making processes

- Our desire to continue to enrich our society through a policy of multiculturalism

The statement of principle should include:

- Our desire to be seen as a principled global citizen, which does not act on short-term politically expedient whims.

- New Zealand’s commitment to fair, transparent decision making

- A commitment to the rights of applicants

Section five: Decision Making

5.1. Who should make immigration decisions?

- Option B is satisfactory.

- The ability to grant positive exceptions to legislation can be delegated to officials in order to relieve pressure on the Minister. The Minister would retain the power to make positive exceptions also.

- Exceptions to legislation or policy that result in an application being declined should not be made by officials, but solely by the Minister of Immigration. To a certain extent, the Minister is subject to democratic pressures which an official is not, thus satisfactory outcomes are more likely to result.

5.2. In which cases should potentially prejudicial information and reasons for decisions be given to applicants?

- Option B is preferred

- Reasons for decisions should be given to all applicants. These need not be detailed, but detailed reasons should be available on request.

- This should apply to all information, including that which is prejudicial or potentially so.

- Classified security information need not be disclosed, but it should be subject to robust safeguards. Decisions based on classified security evidence should be open to appeal for all applicants, both onshore and offshore. Classified information that is not classified security information should either be disclosed to applicants, or not used in the decision making process.

- See submission on section nine.

Section six: Exclusion and Expulsion

6.2. Amalgamated expulsion process

- The application of a single term – “expulsion” – to all the different levels of removal and deportation is unnecessary and unfair.

- As noted in paragraph 312 of the Discussion Paper, the single term “expulsion” could adversely affect a person’s ability to enter another country. While the New Zealand immigration system would understand the nuances inherent in the term “expulsion”, it’s likely that foreign administrations would not recognise such subtle differences.

- As suggested in paragraph 311, the single term “expulsion” effectively equates brief overstaying with serious crimes. While penalties in the New Zealand system may differentiate between the two, the term “expulsion” effectively tars all with the same brush and would likely cause unfair and unnecessary complications in foreign immigration systems.

- The various terms should be retained and should not be replaced with the blanket term “expulsion”.

Section seven: Access to Review and Appeal

7.1. What avenues of review or appeal should there be for decisions on temporary entry or residence?

- All applicants should have access to an independent appeal. This would ensure the legislation remains in line with it’s stated objective of fair decision making

- Appeal to the Minister should be available to all applicants, but only as a last resort after all other avenues have been exhausted.

7.2. What avenues of review or appeal should there be for expulsion decisions?

- All applicants should have recourse to appeal on the facts

- All applicants should have recourse to appeal on humanitarian grounds.

- The term “contrary to public interest” is too broad to be an effective test of eligibility for humanitarian grounds. Such a test should focus solely on humanitarian grounds.

- Where there are sufficient humanitarian grounds to afford protection from expulsion then such protection should only be denied under truly exceptional circumstances

- The Minister of Immigration should be the only person able to deny appeals on humanitarian grounds.

Section eight: The Independent Appeal Bodies

8.1. How should the independent appeal bodies be structured?

- The third option is clearly preferred. Refugee status/protection appeals should be held by a separate tribunal.

- Currently the Refugee Status Appeals Authority is held in the highest regard internationally. It is a world renowned body, highly skilled in refugee status claims determination. If it were amalgamated into a larger single appeal body, then the specialist skills which its members currently bring to it would be lost. It is imperative that the Refugee Status Appeals Authority remain, as an independent appeal tribunal and separate from other immigration status appeal bodies.

- Refugee status appeals are highly specialised, complicated, and quite different in nature to other forms of immigration appeals. Thus it is necessary that a separate, specialised tribunal be maintained to fulfil to our best ability our international obligations in the refugee and protection field.

- Regardless of the structure of the independent appeal bodies, in cases relating to refugee protection, or general expulsion, then an appeal on facts should be held first, followed by an appeal on humanitarian grounds.

8.2. Which government department should service the immigration and refugee appeals authority?

- In order for the immigration appeals system to be seen to operate with integrity, it is preferable that the bodies be a part of the Ministry of Justice.

Section nine: The Use of Classified Information

General Remarks

Ø The use of classified information in immigration decision making needs to be subject to a rigorous review process in order to ensure that it is used fairly.

Ø Review by the Inspector General of Intelligence and Security is not an adequate avenue of review for classified information used in immigration decision making.

Ø Classified information must be subject to review by a panel of experts. Such a panel should include an expert on immigration issues and an expert on classified information. A single judge is not adequate for the review of classified information.

Ø The use of a “special advocate” should also be considered for cases dealing with classified information. The special advocate is a person who is privy to the classified information, and who is charged with advocating on behalf of the applicant. This would be an additional mechanism to ensure that decisions made with classified information are fair, in accordance with the Discussion Paper’s stated objective for the Act, and in accordance with New Zealand’s international obligations.

9.1 How should classified security information be used in immigration decision making?

- The Minister of Immigration should be able to decline an application on the basis of a recommendation of the NZSIS on security grounds. In order for the Immigration Act to maintain its stated objective of fair decision making, the classified security information on which the Minister will make his decision must be open to appeal before a tribunal of experts – review by the Inspector General of Intelligence and Security is not sufficient.

- Classified security information should only be used where such information is crucial to the decision, and where such information is not publicly available.

- It is imperative that the use of classified security information is seen to be fair. As stated in the proposed objectives of the Immigration Act, decision making must be fair – thus justice must be done, and it must be seen to be done.

- In order for classified security information to be seen to be fairly used, it must come under a robust review process.

- Review by the Inspector General of Intelligence and Security is not an adequate safeguard in the use of classified security information.

- Classified security information used in decision making must be subject to review or appeal by a tribunal of made up of no less than three people. The members of the tribunal should include an expert on immigration and an expert on classified information.

9.2 How should classified information, other than classified security information, be used in immigration decision making?

- I believe that classified information, other than classified security information should not be used in immigration decision making.

- If classified information that is not classified security information is used in immigration decision making, then it must be subject to the same robust review process as I have proposed for classified security information above – review by a tribunal made up of no less than three experts.

- Without fair review by a tribunal, then the use of classified information will not be seen to be fair. Review by the Inspector General of Security and Intelligence is not an adequate review process.

9.3 How should classified information, security or otherwise, be used in refugee/protection decision making?

- It is preferable that classified information not be used in refugee decision making.

- If classified information is used in refugee decision making, then the classified evidence need be subject to a robust review process as outlined above.

- Classified evidence used in refugee/protection decision making should be subject to review by a tribunal made up of no less than three members. The tribunal should include an expert on refugee issues/decisions, and an expert on classified information.

Section fourteen: New Zealand’s Role as an International Citizen

14.1. Which of New Zealand’s immigration-related obligations should be incorporated into immigration legislation?

- New Zealand’s international commitments to protect persons facing torture; arbitrary deprivation of life; or cruel, inhuman, or degrading punishment should be set out in immigration legislation.

- Article 3 of the Convention Against Torture, and Articles 6 and 7 of the International Covenant on Civil and Political Rights should all be incorporated into immigration legislation.

14.2. How should refugee/protection status be determined?

- Refugee, Convention against Torture, and Article 6 & 7 of the ICCPR claims should be assessed in a single procedure.

- Right of appeal for refugee, CAT and ICCPR appeals should be available in the RSAA or a renamed but independent appeal tribunal dedicated to determining refugee status appeals. The RSAA is regarded as world class, and we cannot amalgamate this body into a greater appeals structure simply for expediency.

- Immigration legislation should recognise refugees selected offshore.

14.4. Should New Zealand become party to the 1954 Convention regarding the status of Stateless Persons?

- New Zealand should become party to the 1954 Stateless Person’s Convention.

Other posts by Katie