Immigration Amendment Bill

The schedule mainly relates to the name change from the Residence Appeal Authority to the Residence Review Board. We received relatively few submissions relating to that, and I remember that the Auckland Law Society expressed concern over the lack of information about the nature of that change. The Minister might like to take a call to assure the public that this name change itself will not lead to a particular change in the extent of authority, due to the fact that the word “Authority” is being substituted with the word “Board”.

I would like to reflect on what the future workload of the Residence Review Board might be. First of all, we know that in the main part of the bill the New Zealand Labour Government introduced the world’s first migration tool kit, which is known as the “invitation to apply”. That means that anybody who wishes to apply to migrate to New Zealand need only, first of all, to submit an expression of interest. If those applicants do not receive a letter of invitation, there will be no review and there are no rights of appeal. So I can imagine that, for a start, quite a bit of the workload of the Residence Review Board will be reduced.

But a disturbing fact is that during the select committee hearing process we were told by consultants from the New Zealand Association of Migration and Investment that, under the current system, some 60 percent of appeals were upheld because of miscommunication or different technical interpretation accepted by some New Zealand Immigration Service officials overseas that contradicted the policy or regulations of the immigration system. We were told in the select committee that some 60 percent of those appeals were upheld, so, first of all, I would like the Minister to take a call to tell us whether the expressions of interest of the first lot of people to lodge those will be examined in a way that ensures that no technical error or miscommunication has applied to them, so they might gain enough points to receive a letter of invitation.

I think it is important that the Minister has adopted my amendment, in terms of making sure that the immigration system is transparent and certain. I hope she will take a call to explain to us what sort of balances and checks will exist in the system, because those rights of appeal have been removed from the people who lodged expressions of interest.

We also heard during the Foreign Affairs, Defence and Trade Committee’s hearing, that there is quite a tough requirement if there is any change of circumstances for those applicants who receive letters of invitation. They have immediately to inform the Immigration Service—that is, all of the burden of proof lies with the applicant. Some of us might say: “OK. Fair enough. If you want to come to New Zealand and there are any changes, you must inform the authority.” But we want to know whether there is such a burden of proof on the applicant to make sure that he or she has got everything correct. We want to know whether a reciprocal system of balance and checks exists within the service, so that whenever it has queries about applications, the applicants are kept informed. In that way, they would have the opportunity to explain to the service whether all the papers they lodge or the statements they make are true and correct, and that no misunderstanding has occurred. That might remove the need for applicants to apply to the appeal authority later on.

I note that this is a debate on the schedule, which is simply putting into effect the decision already made in Part 2 to rename the Residence Appeal Authority as the Residence Review Board. But, given that the member has raised substantive issues that really ought to have been dealt with in Part 2, I am not going to be too hard on her failure to raise them in the debate on Part 2. She has raised them in the debate on the schedule, but this really is not the right time to raise issues of substance.

However, I really do want to correct a point that she made about a reference. The submission that was received from the New Zealand Association for Migration and Investment should not be presented to the Committee as if it were an accurate reflection of actual numbers. I have the departmental report in front of me, which I will quote from now: “It is of note that comparatively small numbers of people would be affected by the changes. Contrary to claims made in submissions, in only 2 percent of cases did the RAA reverse the NZIS decision as being incorrect and order the grant of a residence visa or permit, which was down from 5 percent in 2001-02. In a further 26 percent of cases, the NZIS assessment was cancelled and referred back to the NZIS for a correct assessment.”

Let me say something about that 26 percent. Under the current law, when the Immigration Service knows that it has made an error, people still have to appeal to the Residence Appeal Authority in order to get an error known by the Immigration Service corrected, because the service has no power under the existing Immigration Act to correct its own mistakes. This bill allows it to correct its own mistakes, so that 26 percent of cases can now go directly to the Immigration Service, which can accept that: “Yes, an error has occurred.”, instead of advising, as it has until now, that: “We know we’ve made an error, but there’s nothing we can do about it because we’ve made a decision, and that decision can’t be reversed by us. You will have to go to the Residence Appeal Authority or send another letter to the Minister.”—which seems to be a course of action that a number of people adopt, as well. So the Immigration Service will be able to amend its own errors under Part 2 of this bill, which we have already dealt with.

I should also make the point that in the 26 percent of cases that were cancelled and referred back to the Immigration Service for a correct assessment, only 10 general skills applications decided off shore were included, and only 10 business decisions, with the majority of cases being family-sponsored stream applications that will retain appeal rights under the proposed changes. Having listened to the same evidence that has been raised in the House tonight, the Foreign Affairs, Defence and Trade Committee decided not to proceed with the original intention, which was to limit the rights of appeal to those who were on shore, to those who were sponsored by a close family member, or to an employer prepared to sponsor the appeal to the Residence Appeal Authority.

The name is being changed from the Residence Appeal Authority to the Residence Review Board to shift away from the idea that the system is an entitlement-based system, and I do not resile from that for one minute. I believe we are making an important change.

In respect of the language in the bill, a number of people have commented that it is the language of discretion, and I point out that that is what the existing Act says. We have made it very clear that we are going to review the Immigration Act in total—and the select committee has accepted that. We are going to get the language right, and I invite members to participate in that review when it occurs.

I thank the Minister for making a contribution. I think that is very parliamentary of her, and I commend her action in doing that. I will reciprocate by not taking a very long call.

I want to raise one question. The Minister talks about the language, and if members look at the schedule, they will see—as the Minister correctly said—that most of it is devoted to changing the name of the Residence Appeal Authority to a Residence Review Board. When we look at the parts of the bill we have agreed to at the moment, we see that, on the face of it, it is not obvious why that change is being made. Indeed, reading further, when the bill refers to the Residence Review Board for the first time, it says it is exactly the same as the authority. Section 18B(1), inserted by clause 12, states: “For the purposes of this Act there is a board called the Residence Review Board. The Board is the same body as the Residence Appeal Authority …”, so the question one has to ask is: why the name change?

I am left with the impression that the Government really wants to indicate to the courts, which may be reviewing that body, that it is a body not able to review the Minister, and not able to be a real appeal authority and look at what has happened. It is a much lower body indeed. When one looks at the parts of the bill—which we have already agreed to, so I am not going to go further—one sees that all sorts of actions that were able to be reviewed are no longer able to be reviewed. I make the point to the Minister that I do not agree with that name change. I do not agree with the idea that Ministers and civil servants should be above the law. The ACT party believes in the rule of law, and we think the rule of law should apply to everyone—in particular, to Ministers of Immigration.

This is indeed a strange amendment by the Government. It is almost as if the Government has a fetish for giving new names to things. We have come across new names for Crown land, which is to be called “public domain”, and now we have the Residence Review Board taking over from the Residence Appeal Authority.

As the Law Society said on page 9 of its submission, no reason has been given for the renaming of the Residence Appeal Authority. In a way, it makes it very hard to attack the provision if there is no reason for it, though it is perhaps consistent with the unilateral way in which a Government—and this Government—could apply the bill and the various discretions contained in it. If the Government can change the name of the Residence Appeal Authority—which has a certain ring about it, given that it concerns an appeal and is an authority, but with the main word being “Appeal”—to the Residence Review Board, is it trying to indicate that the body is a totally different one, as the Hon Richard Prebble suggested? To some extent, it obviously is different.

This Government, by the way it is acting under this legislation, has opened itself up to all the criticisms mentioned in relation to Part 2. One has to scratch one’s head in absolute wonderment as to why we should waste the time of Parliament, the parliamentary draftsmen, the Foreign Affairs, Defence and Trade Committee, and all those people who made submissions with about three and a bit pages of amendments just so the Government can get a kick out of changing the name of the Residence Appeal Authority to the Residence Review Board. It is extraordinarily strange. It is an utter waste of money and a waste of time. To prove my point, I will leave it at that.

I have taken some interest in the parts of the schedule, because, like those who have spoken before me, I was scratching my head and wondering why it was that Part 1 of the schedule consists entirely of a series of name changes from “Residence Appeal Authority” to the new “Residence Review Board”. Part 2 makes a similar change in relation to the Electronic Transactions Act. If members go back to new section 18B in clause 12, they will be interested to see the wording: “For the purposes of this Act there is a board called the Residence Review Board. The board is the same body as the Residence Appeal Authority”. Again in clause 12(4): “The Residence Review Board is the same body as the Residence Appeal Authority that existed immediately before the commencement of this Act,”.

On the face of it we have a schedule, the sole purpose of which—and I listened to the Minister’s explanation—is to change the name of the existing Residence Appeal Authority to Residence Review Board. I imagine this will lead to a bold and exciting new era for those involved in this august body. No doubt, the new Residence Review Board can call in the design consultants to provide a brand new logo and letterhead. No doubt, it will be able to refurbish the offices, get a nice new logo, and invite the Minister along to cut a ribbon. It will have some material for the next version of the Immigration Service newsletter.

💬 Dail Jones: In Māori!

Yes, of course, a new Māori name for the new Residence Review Board. I am sure the Minister of Māori Affairs has already advised his colleague the Minister of Immigration on a suitable name. The board will have to appoint a cultural officer—a kaihautū, a spiritual leader—to guide this new Residence Review Board waka into the future. The whole thing could get somewhat out of hand.

Looking at the schedule, in the first instance, one has to ask whether we will see another one of these wonderful exercises that we have seen under this Government where we have the same thing, with the same people, doing the same job, with a different name, with a new logo, and with a whole new bunch of photographs of the Minister in the Immigration Service magazine—no doubt touched up by the same people who do the touching up for the Prime Minister’s photographs.

I listened to the Minister’s explanation. She said this was being done to move away from the old entitlement-based system. That is one way of putting it, but another way of putting it is to say that it is moving away from a system where the rules were clear and where the actions of everyone involved were subject to review, to a system of scrutiny, whereby for the most part no such review is possible, which means that the actions of those who are currently subject to scrutiny, currently subject to review, will no longer be subject to such scrutiny and review. That seems to be enormously convenient. It is enormously convenient for the Minister, and even more convenient for her officials, because I am sure that once they have got past the distraction of the review by the Secretary of Labour, over the next day or two, and once they have got past the review by the Ombudsman—for misleading the Ombudsman under the Official Information Act—I am sure they will be exhausted. The last thing they will want to have is some examination and independent scrutiny of their actions by a Residence Appeal Authority. Having something called a Residence Review Board, which will not actually subject their actions to review, will be very welcome, indeed.

I move, That the question be now put.

In speaking to the schedule, my excellent colleague the Hon Murray McCully has just pointed out to the Committee what is provided for in clause 12, where it describes what this Residence Review Board is. The schedule, right the way through the principal Act, replaces “Residence Appeal Authority” with “Residence Review Board. It is extraordinary that new section 18B(1) in clause 12 states: “For the purposes of this Act there is a board call the Residence Review Board. The board is the same body as the Residence Appeal Authority”. Some people might say: “Aha! Hang on! While it might be the same body, maybe the Government intends to change the membership, and maybe it will be a different body.” Oh, no! That is not the case, at all. If members look at clause 12 they will see that a little bit has been stuck in under subclause (4). I understand that new paragraph (c) was put in at the request of the Residence Appeal Authority.

💬 Hon Lianne Dalziel: We’ve already done that part.

Dr the Hon LOCKWOOD SMITH: I know, but it is important to understand what the schedule is doing. The schedule is not even changing the membership of the Residence Appeal Authority. That new paragraph (c) stuck in under clause 12(4) states: “the persons who, immediately before the date of commencement of this Act, were members of the Residence Appeal Authority continue as members of the Residence Review Board on the same terms and conditions as applied before that date:”. What is just dumb is to go to all the expense of changing the name of a board when no element of it is to be changed—nothing! There will no change to the membership. Even the chairperson is not changing. This bill protects the position of the chairperson. New paragraph (c)(ii) states: “the person who, immediately before the commencement of this Act, was chairperson of the Residence Appeal Authority continues as chairperson of the Residence Review Board for the period specified in that person’s notice of appointment as chairperson.” If nothing is being changed to do with the board itself—not changing any of the membership, not changing the chair of the board—what on earth is the Government doing, apart from squandering taxpayers’ money? My good colleague Mr McCully mentioned that the logo will have to change, because obviously “Residence Review Board” is not the same as “Residence Appeal Authority”. There will be all new stationery and everything to do with this body will have to change, and for what purpose when nothing of substance is being changed? This Labour Government is so good at this sort of thing. We used to negotiate things called free-trade agreements in this country, but not with Labour in Government. It does closer economic partnerships, which are just weasel words for the same thing. We negotiated a free-trade agreement with Singapore, but Labour turned it into a closer economic partnership. We negotiated the heads of agreement for a free-trade agreement. I signed them personally. However, it is the same stupidity and same political correctness to change words at huge cost to the taxpayer.

I think that anyone listening to this debate would have to ask what on earth the Government is doing this for. No element of the Residence Appeal Authority is being changed. When we look back through the legislation we have just been debating, it makes it so clear that nothing is being changed—not the purpose of the board, not the membership of the board, not the chairmanship of the board. The only things that are being changed are the expensive things like the logo and the stationery. All that stuff has to be changed. As my good colleague Murray McCully pointed out, probably these days with this politically correct Labour Government, the board does have to have a kaihautū, and we know how expensive they are. This kind of stupidity and wastage should stop.

I move, That the question be now put.