Immigration Bill

I am very pleased to take part in the debate on Part 5. I was not a member of the Transport and Industrial Relations Committee in the last parliamentary term. I think this part might be a little bit contentious. But first of all I will give some background to Part 5 and talk about the types of refugees that New Zealand does accept.

The most common route is through the United Nations quota system. New Zealand accepts 750 refugees each year. These refugees are vetted by the United Nations High Commissioner for Refugees, and on their arrival they spend several weeks at Māngere, where they are orientated and have further checks. As refugees accepted through the quota system, those people are automatically given permanent residence.

As a signatory to the 1951 United Nations convention and the 1967 protocol on the status of refugees, New Zealand is obliged to consider all claims for refugee status or political asylum. The second group of refugees are asylum, or convention, refugees, who claim refugee status after they arrive in New Zealand, at the border or when their temporary permit expires. There are an estimated 300 asylum seekers per year, and of those who go through the review or appeal process, approximately 50 percent would be accepted. Many of these people arrive at our borders having destroyed all documentation, so proving who they are and the situation in the place where they have come from can be very difficult and time consuming. However, while they are making a claim for refugee status and are waiting to be verified, they are able to use the public health service, their children go to school, and they are entitled to benefits.

In New Zealand all claims are considered by the refugee status branch of the New Zealand Immigration Service. If a claim is unsuccessful, there is an appeal process. People can lodge an appeal against the New Zealand Immigration Service decision to the Refugee Status Appeals Authority, or RSAA, which is an independent body. In fact, there are four review bodies: the Refugee Status Appeals Authority, the Removal Review Authority, the Residence Review Board, and the Deportation Review Tribunal. It is important to note that all four appeal processes will be put into one body called the Immigration and Protection Tribunal, thus making it a much simpler process for all.

While refugees wait to be verified, they can generally get a work permit while their claim is being determined. Asylum, or convention, refugees might be in New Zealand for 2 or 3 years before their status can be determined, so it is quite a long process for many of them. Of course, they have to prove that if they go back to their country of origin, they could be persecuted, tortured, or under imminent threat of death.

The third route is the family unification category, which I will not go into.

It is important to note that Part 5 does not affect our refugee quota programme at all—it is not about changing that—and that the bill upholds our international refugee and protection obligations. But a new framework is being created for refugee and protection decisions. It incorporates all the conventions and protocols that we subscribe to. In relation to the changes in this part that could be contentious, it is important to note that often over the last few years we have had examples where asylum seekers have come to New Zealand, are going through very much a good-faith process with the Immigration Service to prove their claims, but start using the media to put out information, whether or not it is correct. In that way it becomes a bad-faith process. They are able to say that because they are in the media now, they cannot go back to their country of origin as the authorities there know that they are here and they will be persecuted if they go back. That approach is not acting in good faith. To give the Immigration Service some balance, the bill now provides for an implied waiver of confidentiality in refugee and protection decisions where a refugee, protected person, or a claimant puts information about his or her case in the public realm. It provides the Crown’s perspective on an individual’s case. If individuals choose to go to the media, the Crown should have the right of reply in that instance. None of this will be done lightly. It is important to stress that the process is a good-faith process, and if individuals choose not to follow that good-faith process, they will suffer the consequences.

Another change, on Supplementary Order Paper 32, provides that refugee and protection decisions can be released where it is in the public interest and it is safe to do so. Again, this has not been done lightly at all. It would be a last resort.

Time is almost up, so I do not think I will begin a speech. I might just tell a story. We are talking about refugees, so I will tell a story about a couple of guys from West Africa. They got into trouble with their President, because the President, in their view, had overturned a mayoral election in a major city, so they started a general strike. The local cops and the special cops came after them. They fled to a neighbouring country. They got on board a ship to go to Europe, or so they hoped, and one of them was imprisoned and tortured in the meantime and escaped through a roof. But the ship never went to Europe. It went via the Philippines and Australia to Port Chalmers in Dunedin, where they passed a note out through their little prison within the ship to a watersider, who gave it to the Otago Daily Times. It was reported in the newspaper, and then my phone started ringing. After a couple of days I got them off the ship, which is just as well because it was due to go on to Korea, Alaska, and who knows where after that. They had been on this thing for about 3 or 4 months.

They stayed at home with us for 4 years, so we got a bit of an insight into what being a refugee looks like. They waited 22 months for their first interview under the New Zealand system. That is just a matter of fact. They were accorded refugee status and, if you like, I will tell members the rest of the story after dinner.

Sitting suspended from 6 p.m. to 7.30 p.m.

The CHAIRPERSON (Eric Roy): The Hon Pete Hodgson has roughly 3½ minutes left to speak, and we look forward to hearing some more of the narrative.

Thank you, Mr Chairman, for your request that I complete the story, and I will be happy to do so. So these two refugees from a West African nation, having spent some years at our place, then went on to make their way in the world. One of them went to Australia. He became a bank manager, and in fact he was appointed as a bank manager about 3 months ago. He was married about 4 months ago in Melbourne, and I was his best man. The other one stayed in Dunedin. He ended up as a caregiver of intellectually handicapped folk, and in that role he is particularly able. He is just very good at his job. He married a woman from the same West African nation, but that is another story. They have a child aged 17 months, and that is another story as well, but she was out at our home on Sunday. She is a delightful child, but she wrecked the place and then went home again. I suppose the point of the story is that I, and I am sure many other members, have firsthand knowledge of refugees.

I do not wish to finish the story on a bad note, but it is a matter of fact that when I was trying to get them off the ship one weekend in early January 1997, I was trying to get hold of the necessary folk from the Immigration Service, and I put to officials some questions to which I already had answers, and I caught out an official misleading me. I said: “I’ve now caught you out. Now you have to help me.” I give no names and no pack drill; it is just what happened. As it happened we were lucky enough to find a French-speaking police officer, who interviewed these guys, put the right questions to them in terms of our international obligations, and, on that basis, their lives were able to be restarted in New Zealand.

So that will do for the story. It is a story that finishes with great success, if, indeed, it has finished at all. It is a story about how New Zealand finally did gather round these guys and make them welcome, and it is a story about how they have made their way in life and are now contributing back to society. Refugees, and issues around refugees, are like that. Those issues are not straightforward. It is hard stuff, and it is hard stuff for all manner of reasons. I think every member of the House will have come across a refugee and will have gained some idea of the torment or difficulties they have moved through and the strength of purpose they have had to show.

Of course, the other side of the story is that from time to time people who claim refugee status do so spuriously, and from time to time they try to rort our system and take advantage of us. Somehow we need law that has the wisdom to tell the difference between one type of refugee and another, and that is not straightforward. I know that too from personal experience. So there is the end of my story. My story is a happy one, and it is a story that I am sure this Committee will enjoy.

But now I will resume my seat and we will come to the difficult issues around Part 5, and some of those will be opposed by members on this side of the Chamber, for reasons that my colleagues, I hope, will explain. Thank you.

There have been some improvements made to Part 5, through the good work of the Transport and Industrial Relations Committee. Some of the concerns raised by groups like Amnesty International were addressed. One of the things that was rather disconcerting was the wording of clause 122B, which will now be omitted, and which said that persons could claim protective status only if they could show they faced the risk of harm “in every part of his or her country” and that the harm “is not faced generally by other persons in or from that country.” Of course, one of the things about persecution is that it is often quite targeted. If people live in Iran, they are subject to some general persecution, but if they are a Baha’i or a Christian convert from Islam they face specific persecution. The idea that some parts of the country are safe and some parts are not is a difficult one to apply. It is good that that provision was taken out of the bill by the select committee.

The provision that is related to that clause is now in new clause 120, which states that the application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to such claimants requires “the existence in the country concerned of a consistent pattern of gross, flagrant, or mass violation of human rights.” That just makes clear what is at issue here, in terms of determining refugee status, and the persecution that results from that status.

Another improvement is made in clause 125, which states that if we send the person to another country where the refugee convention, the convention against torture, and the International Covenant on Civil and Political Rights apply, there must be “appropriate processes”. The words “appropriate processes” were added so that countries cannot just sign up to these agreements; they have to actually put them into effect. There must be appropriate processes. So that is an improvement.

In clause 127 there is an improvement in that a decision would be invalid if we sent a claimant to another country where they might be safe, for example to Fiji, Malaysia, or wherever, which was thought about for some asylum-seekers, but that particular country then sent the person back to the country of persecution, and we in New Zealand had some knowledge that that might take place. Clause 127 requires the refugee tribunal to really have a look at that.

There is also an improvement in clause 133, which relates to the cancellation of a person’s recognition as a refugee or protected person. It is true that a lot of refugees embellish their stories, and that there is a bit of falsehood in them, and sometimes other members of the community slander them in one way or another, so it is often a very murky business trying to establish exactly to what degree refugee claimants have lied. They may have gained refugee status, and it is a big step to cancel their refugee status. This provision means that it is not just up to someone in the refugee status branch of Immigration New Zealand; the tribunal actually has a role in the cancellation of someone’s refugee status. That is a step forward. Those are some improvements, and I appreciate that the committee has done good work along those lines. Thank you.

When I became the Minister of Immigration under the previous Labour Government there were 3,000 people waiting for their first-level determination for refugee status. That was because the refugee status provisions of the legislation of the time were being abused. They were being abused by people who came here from, significantly, Thailand, probably more than anywhere else, and who used the fact that there would be a lengthy delay for the consideration of their first-level claim—essentially for up to 3 years—to get a work permit to live and work in New Zealand for 3 years before they would be sent home for having no claim for refugee status.

The issue is that that abuse did not mean every single person from Thailand who lodged a claim did not have a claim for refugee status. But 99.99 percent of those people did, and the question is how we change a system to ensure that the one person in a million is able to have his or her case determined appropriately. That is what Part 5 does, and that is why I am very supportive of the provisions in this part. It ensures that we have an opportunity to hear cases that are genuine claims for refugee status, and, at the same time, to move on those people who are seeking to abuse provisions that are designed to offer protection for people who come to New Zealand.

I should say, before I move on from talking about what I inherited, that when I stopped being the Minister of Immigration there were about 300 people waiting to have their claims heard. So we managed to make quite a significant difference in that period of time.

I know that my colleague who has just resumed his seat has made the comment before that we should not be happy with the very low number of people who claim asylum when they come to New Zealand now, but I am actually very happy about that because the rate of approval of refugee status on a percentage basis has gone up. That is because the vast majority of people who now claim are genuine claimants, rather than those who sought to abuse the provisions of the law in the past.

There has been a really good change in what we do when determining refugee status for those who do not come here under the United Nations High Commissioner for Refugees quota programme. But I am concerned about the changes that the Supplementary Order Paper makes, and we have discussed this with officials. I understood that the Minister was going to provide us with some background on how the United Nations High Commissioner for Refugees had responded to these particular provisions. My understanding of our conversation was that there would be feedback to members of the Opposition about what the United Nations High Commissioner for Refugees had said about these particular provisions. We had quite a lengthy discussion about it. I am looking around for my colleague the immigration spokesperson, but that is my very clear recollection of the discussion that we had—or maybe it was with the officials rather than with the Minister.

💬 Hon Dr Jonathan Coleman: Oh, OK!

It is very important that we get some feedback on what the United Nations High Commissioner for Refugees has said about these particular provisions.

The concern is when we make changes around the implied waiver of confidentiality, and I know that it already exists. But having been a Minister in the position where there is no way that one can talk publicly about a particular case, I am very worried that this is being put in the context of refugee decisions whereby the matter may be put in the public arena in a way where the waiver would operate, perhaps, in a different way from what the person has disclosed. So what we are told in this Supplementary Order Paper is that “the chief executive may publish the decision of a refugee and protection officer relating to the claim if the chief executive determines that, in the circumstances of the particular case, it is in the public interest to do so:” and “the Attorney-General may, subject to any orders of the Tribunal, publish the decision of the Tribunal relating to the claim if the Attorney-General determines that, in the circumstances of the particular case, it is in the public interest to do so.”

The Refugee Status Appeals Authority already publishes decisions but it does so without any names or features of the case that might be attributed to a particular individual. This clause does not do that, and I am deeply worried about the impact that that would have. Certainly in some of the cases that I can think back to at the time I was Minister, we would not want to publish any aspects of the decision, even if somebody had put his or her case in the public arena in a self-serving way, and, quite frankly, how else would one want to have it put in the public arena. It may well be that by putting something in response to it, that, in fact, it may jeopardise others, and may put at risk other people as a result of the whole case being put in the public arena.

I have had some concern that the way this bill has been drafted it does talk about publishing “the decision”, and it may be in the interests of everyone that certain parts of a decision are put in the public arena, rather than the whole of a decision. I am a little bit concerned about this. I think what people will not look at is the fact that these clauses are gone through in fine detail by lawyers representing individuals in particular cases, and the dotting of the i’s and crossing of the t’s are very important in this regard.

The other point is that, at the moment, this bill allows the publishing of a decision of a refugee and protection officer. I have real doubts about whether that is in the interests of anyone. The initial decision that is made is often not particularly detailed, and it is often quite different information that is put before the Refugee Status Appeals Authority. I know that we have changed the question of appeals in this legislation to have a unified tribunal, but I am a little bit worried about having this information in the public arena. The reason for it is that a lot of the protections that might exist at the tribunal level just simply will not exist at the level of a refugee and protection officer, who is just sitting there in the room hearing the case with a particular individual.

I am aware of a number of cases where the particular decision has gone in favour of the individual, and that is fine, but I would not really want anyone to have access to that information afterwards. I do not know what the public interest might be to have a particular case referred to. Perhaps the issue would have been raised by a politician who would want to take a populist position and oppose somebody having refugee status, or the right to remain in New Zealand, so the politician would go public with it. Does that then give the chief executive the right to put in the public arena a response to show that it was a responsible decision? If it was not the person who raised it in the first place, do we think that that is a responsible position to take?

I have real doubts about this area. I think that the law may say this but I do not think it will ever offer any particular comfort, because there are so many risks associated with expressly, or impliedly, waiving the right to confidentiality. I have personally experienced that, and I think it would be a high risk for this Government to go down the track of writing this into the law.

I rise to take a call on Part 5, “Refugee and protection status determinations”. In doing so, I want to make two statements of the obvious, to start with. The first is that there has been a strong tradition of bipartisan support for refugee policy in New Zealand, and largely for protection policy. Refugees are amongst the most vulnerable in our society. Many of them come here having endured things that most of us could not imagine, and their challenge of adapting to a new society is made all the more difficult because of the scars that they bear from their former experience.

Refugee policy is too easy, as my colleague the Hon Lianne Dalziel has said, to play politics with, because the level of resources that is invested in the settlement of refugees is sometimes considerable. For that reason I am pleased that, across the major parties, we have maintained a steady quota of refugees and a good bipartisan approach to this policy; long may it continue.

The second statement of the obvious is that much of Part 5 is very, very positive. It represents the bipartisan contributions, as I said in the Part 2 debate, of several Ministers and Governments—that the history of this Act reflects the need to strengthen border protection and then to balance those protections with improved human rights protections. I will give a couple of examples, but I do want to state at the outset that the Opposition is opposing the Supplementary Order Paper provisions for Part 5, and I will outline why.

Several of the things that we think are very positive in terms of this part reflect the travel of this bill through, first, the executive, and then the select committee. The bill extends protections to include the Convention Against Torture—the so-called CAT—and the International Covenant on Civil and Political Rights. This is something that both Governments have strongly supported, and I welcome that. The select committee has further amended the wording of the bill so that as reported back the wording of the claims under the Convention Against Torture are more accurately representative of the convention, and that is to be welcomed. The requirement has been removed that a protection claimant must show that torture, arbitrary deprivation of life, or cruel treatment is not faced generally by other persons in the claimant’s home country, in order to be granted protection status. The burden of proof was always very high in that regard, and, on balance, it is a good thing that that has been removed.

Also in Part 5 there are changes to the roles of determination officers. A determination officer may not, in the bill as introduced, consider a subsequent refugee or protection claim unless satisfied that there has been a significant change in circumstances or that the change was not brought about by the claimant for the purpose of creating grounds for recognition. That has been amended by the select committee. A refugee and protection officer may not consider a subsequent refugee claim unless satisfied that those conditions apply, but it now does not apply to a protection claim. That amendment liberalises the legislation somewhat and is to be welcomed.

Now we get to the slightly difficult bits. First, the bill as reported back from the select committee recommends that refugee and protection officers make first instance decisions on refugee and protection claims, using classified information. That seems to me to be at odds with the structure of the more general provisions of the bill for the use of classified information, which hold that where they are used without corroborating open source evidence a special process must be set up and special protections applied, including an advocate, and so forth. In the bill as introduced the protection existed that the use of classified information under this part had to be done by a tribunal. I fail to see the rationale why that has now been generalised to allow any front-line refugee and protection officer to gain access to and use classified information, apparently without open source corroboration, in the absence of those special procedures. I welcome the Minister’s clarification on that point.

Now we come to Supplementary Order Paper 32 on Part 5. Taken as a group, four important amendments are proposed in the Supplementary Order Paper, which Labour believes have been generated mainly as a response to certain individual cases. Cases like the Ali Panah case and perhaps the Thomas Yadegary case—both cases are of Iranian Christians—spring to mind. We are firmly of the view that hard cases make bad law. It is just too clumsy to write into the principal Act a specific set of prohibitions that would get around the particulars of one or two difficult cases. This has all the hallmarks of ensuring that no one gets it over the department again like those two did. That is not a first-principles argument, and I do not think it is worthy of the level of thought that has gone into other aspects of the bill.

Here are the substantive problems with it. Firstly, the Supplementary Order Paper states that an implied rather than a stated waiver of confidentiality in refugee and protection decisions exists where a refugee, protected person, or claimant puts information about his or her case in the public realm. There is not an express but an implied waiver. The difficulty with that is that there are many ways—Lord knows, politicians should be aware of this—in which things can reach the public realm, not always with a great deal of forethought, sometimes without knowledge, and certainly without malice. The problem with an implied waiver is that it is subjective. It is the officer of the department who is making a decision that something is implied, and it lacks the due protections that should exist.

If that clause did not raise enough risk on its own, when it is put together with the clauses that follow in the Supplementary Order Paper, refugee and protection decisions can be released. It is not OK for the claimant to put his or her information in any way in the public domain, by accident or design, without a waiver of his or her rights, but it is perfectly OK for the department to do it. What is fair about that? The bill lacks protections and it impinges on human rights.

The third clause states that where a foreign national creates the grounds for a refugee status claim in bad faith, his or her claim can be declined for consideration. Who decides whether something is in bad faith? And how is bad faith defined precisely in the Act? I know who is making the judgment; the refugee and protection officer is making the judgment. I know—and I think I acknowledged in the earlier part of the debate—that departments of State are not perfect. Most of our individuals get up every day and they go to work to do the best job they can, but they make mistakes. This is a subjective test. It is one thing to decline after consideration, but this provision declines for consideration. If the refugee and protection officer gets out of the wrong side of the bed in the morning and thinks someone has acted in bad faith because the officer does not like the cut of his or her jib, his or her case will not be heard. The case will be declined for consideration. Of course, he or she could appeal but that is a difficult process and there is only one shot at it. That makes the protections so much weaker.

The fourth clause states that it does not matter whether any number of people deemed to be the claimant’s friends or supporters stand up and say that the person is a wonderful person. Take the Yadegary case, which I was involved with as a member of Parliament before having to recuse from it as a Minister. There was no end of people—if I recall correctly—in the Catholic Church who said that the young man was a genuine convert, had been for years, and was active in the church long before his case was held. This amendment states that that material could not be considered. Well, how on earth is that fair when the original officer is making a subjective decision, when the claimant has no rights because anything he or she says implies a waiver of confidentiality, and when any supporter he or she may have cannot be taken in account because he or she is a priori excluded?

I understand why these provisions are here, but I think they go too far. They expose the department to risk, and they expose the Minister of Immigration to unnecessary risk. I ask that the Minister in the chair, Dr Jonathan Coleman, reconsider the amendments. Labour will not be supporting the amendments to this part. Thank you.

I will carry on from the argument my colleague David Cunliffe made, because he started off with the point that perhaps I had overlooked, which was that hard cases make bad law. We have a really high risk of doing that with the series of changes to the refugee and protection provisions of the Immigration Bill. I think the Minister wants to make the changes for appropriate reasons, so I am not having a go at the Minister for making these changes. But the changes will not act in the way he thinks they will, and they will not offer protection in the kinds of examples we have already had put before us. The reason for that is that there is a high risk that other people could be involved in putting things in the public arena. There is a high risk that others could suffer the consequences of information being disclosed in the public arena within New Zealand. Of course, any information that is publicised in New Zealand is automatically available internationally within seconds, as we know in a whole lot of different areas.

The Minister may have wanted to see changes in this area, and they may not look like they are much of a change. We need to put it on the record that the bill as it stands states: “Nothing in this section applies to prevent the disclosure of the fact that a person is a claimant, a refugee, or a protected person, or the disclosure of particulars in relation to a claimant, a refugee, or a protected person, to the extent that the person concerned has expressly waived his or her right to confidentiality under the section;”.

The Minister’s amendment to clause 140(5) in Supplementary Order Paper 32 has now been extended with “by his or her words or actions, impliedly waived his or her right to confidentiality under this section.” The amendment is not needed. If the implication is of sufficient weight, then it will fall within the express waiver of the right to confidentiality. Many court cases have upheld the right to do so. Adding “impliedly waived” gives incredible authority for the Minister of the day to just basically draw the line wherever he or she wants to draw the line. It is a very dangerous provision.

I do not think it would stand up in any international jurisdiction. That is why we have been waiting to hear what the United Nations High Commissioner for Refugees had to say about the provision. We find it hard to believe that the United Nations High Commissioner for Refugees would say that it is a good change for us to be making to our law. When we had our meeting with officials, we certainly made the point that we did not agree with the particular change to the law, but we did understand that we were going to get some feedback about what the United Nations High Commissioner for Refugees thought about this. We would really appreciate the Minister providing us with some explanation as to how the United Nations High Commissioner for Refugees has responded.

I think the implied waiver is an extremely risky track to go down. I am urging this Committee to think very carefully about supporting this amendment. This amendment has high risk for people whose very lives may be at risk. It is all very well to say that because somebody has dared to suggest to a journalist on the way to a hearing that he or she has a genuine case, that that suddenly gives the Minister the right to put everything in the public arena. One has to be extremely careful about that. There are so many instances that I can think of where it may be thought that there is an implied waiver, but, in fact, there is no waiver intended. Indeed, the involvement of third parties, as my colleague David Cunliffe has said, may lead to people inadvertently creating the implied waiver situation, because it may be regarded that in advising someone else of their circumstances, they have impliedly waived their right to confidentiality under the section.

That provision is in section 129 of the Immigration Act 1987, and as a former Minister of Immigration I was very, very mindful of my obligations to keep confidentiality. I think the Government needs to rethink this provision.

One of the saddest things about the Minister’s amendments is that they weigh against—and to some extent, they undo—so much of the good work that the select committee has done to ensure an appropriate balance is taken for human rights and civil liberties. Four amendments were mentioned by my colleague the Hon Lianne Dalziel, New Zealand’s finest Minister of Immigration—she has paid me again to say that; no she has not, that would be treating and would probably be against some law or other. There you go, that may be taken as an implied waiver of confidentiality!

If one were getting political about that issue, one, just for a moment, could observe that the current Government is getting a little bit of a name for waiving confidentiality. The Minister for Social Development—

💬 Hon Lianne Dalziel: Look at Paula Bennett—outrageous!

Exactly. We never hear from the MP for Waitakere, when it comes to protecting the trees in the Waitakeres, but as Minister she is busy releasing the personal details of beneficiaries to the media. That cannot be right. It just cannot be right or decent.

💬 Hon Dr Jonathan Coleman: What has that got to do with this?

It is a waiver of confidentiality that was implied by that Minister in that case. The point is that it is a conflict of interest if we really want to come down to it. The decision maker, who has a political interest in the decision, is the person who judges whether confidentiality has been waived. As my colleague the Hon Lianne Dalziel has said, let us suppose a refugee claimant makes a statement to a journalist but in doing so does not appreciate what it will lead to. He or she makes the statement on the way to a hearing. The Government thinks it then has the right to waive all confidentiality about the case. Thereby, apart from anything else, it opens up the possibility that the person’s personal details are released and that actually makes the whole situation worse.

But for the life of me, I cannot understand why the Government would make this change. It is against the run of the current of the rest of the bill. The Government has every reason to be proud of the rest of the bill, proud of the select committee process, proud of the thoroughness of the drafting, and proud of the fact that it has incorporated the recommendations of the select committee, some of which it would have thought very carefully about. This is very, very good legislation. It is a shame that its international reputation will be sullied by these amendments, which run against the current of adequate protection of human rights. The Minister has probably weighed this up. He has probably thought through this.

💬 Hon Lianne Dalziel: We don’t know; we haven’t heard from him.

We look forward to hearing from him. He is a Minister of some substance; I am sure he could put a case to the Committee. We do not want the public to think the worst of it—well, actually, Labour would want the public to think the worst of the Government, in all truth, in a moment of reflective honesty there. Let us presume the Minister does not want the public to think the worst of him, and that he wants it to think the best of the Government’s rationale for these changes.

There must be a logical reason that transcends simply one or two cases of Iranian Christians, whose details were put out in the media, and who had a pretty strong track record of support from the churches into which they were integrated. In the Yadegary case, the Refugee Status Appeals Authority said the claim was valid on its merits, and that refugee status should be awarded. In the Panah case, refugee status was granted to him because the situation had become so complex in the media. It was a difficult case. He was on a hunger strike. It was right that he was released into the community in order to get him off the hunger strike; otherwise he would have died. The blood of that refugee would be on the conscience of the Crown; that is what this came down to.

But what would that case have been like under this bill? Would Ali Panah have released himself into the care of the church to face a further rigorous appeal process, if this clause were on the books? No, he probably would have starved himself to death, which is what he was very close to doing before a peace was brokered.

I ask the Minister to think in very good conscience about the unintended implications of this clause. It is bad for the Government’s reputation, and, as Lianne Dalziel said, it is bad for the country’s reputation. This is a jolly good bill. It balances necessary border protection with admirable human rights protection; these amendments do not.

I am surprised that the Minister will not take a call, because we are raising—

💬 Hon Dr Jonathan Coleman: I will take one.

I am yielding to you.

The CHAIRPERSON (Eric Roy): The member has sat down, so that is the end of that call.

Oh, hang on!

💬 Hon Darren Hughes: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): No, I need to tell the honourable member that there are only four calls per part. That is her fourth call. She has sat down, and the yield has not been taken up. The Standing Orders stipulate that that is the member’s last call, but I will give the member the opportunity to resume her call.

Thank you for your assistance in that regard. I am disappointed that the Minister has not taken a call on this part, because it is a serious set of issues we have raised. My colleague the Hon David Cunliffe has reminded me of why I would not trust this Government with the particular provisions that it wants to put into our law. The Minister for Social Development and Employment went public with the personal details of two individuals who dared to challenge the Government about its particular approach on the training incentive allowance. The funny thing is that if the Minister had actually read the interview given by the individuals, she would have found that they said they were extremely grateful for the money they had received on the domestic purposes benefit, but they needed a little bit extra to assist them to get off that benefit.

The only reason the Minister went public with their names is that she thought I had given their names to the media, when, in fact, the media had worked out all by themselves who those beneficiaries were, and had approached them directly. The Government allows a vindictive approach to be adopted against particular individuals when it does not like what those individuals are doing, in particular, like challenging the Government.

This amendment would enable the Government to speak publicly about a particular immigration case whenever it feels like it, because it will always be able to satisfy itself, as the Minister for Social Development and Employment did so unfairly to those two particular individuals. The Government will always be able to satisfy itself that individuals in question had impliedly given their consent.

I do not think that people on the other side of the Chamber are taking this seriously enough. The previous Labour Government got rid of the vast bulk of the manifestly unfounded claims. They have gone from the system. As I said earlier, I inherited 3,000 claims when I became the Minister of Immigration, and that was down to 300 by the time I finished being Minister. We addressed the problem. The vast majority of the claims being dealt with now are genuine claims for refugee status.

The risk that is taken when one plays God, as it were, with this particular situation of identifying individuals is that if they were returned to their home and the Government was wrong to release that information, the consequences are lethal—they are fatal. I think that the Government is playing a very, very dangerous game by writing this into the law, stating that implied consent would be sufficient to allow that information to be released. I simply do not think that it does.

The other thing that we have not mentioned in this particular part is that Supplementary Order Paper 32 inserts new subclause (2A) of clause 125: “A refugee and protection officer must decline to accept for consideration a claim for recognition as a refugee if the officer is satisfied that 1 or more of the circumstances relating to the claim were brought about by the claimant—acting otherwise than in good faith; and for a purpose of creating grounds for recognition …”. How on earth will a refugee and protection officer know to decline a case on the basis that it was brought otherwise than in good faith?

The bottom line is that this is, again, a section that is being written into our law on the basis of one or two very hard cases. As we have said before, hard cases make bad law. We think there is a very high risk for the Government to go down this track. We will not be supporting the Supplementary Order Paper unless the Minister suddenly gets up and surprises us all with a very clear basis for doing so. We think there are high risks with the Supplementary Order Paper and we think that the amendments ought not to be supported.

People sitting at home listening to this debate will probably wonder what it is all about. In essence, Part 5 means that refugees who are seeking refugee status must tell the truth and act in good faith, and then they will be fine. I think we all agree that New Zealand has a world-class refugee system. António Guterres, the United Nations High Commissioner for Refugees, was here a few months ago. He was certainly very fulsome in his praise of our system.

I think we agree on the parts of the bill that codify elements of procedure, and rights of refugees, under the Convention Against Torture and the International Covenant on Civil and Political Rights. But clearly, there are points of difference relating to these bad-faith provisions. We are essentially saying that if refugees lie about their background and why they are claiming refugee status, they probably will be exposed in the course of their dealings. Up till now, that provision has not been there.

Opposition speakers have said that hard cases make bad law. They say there have been only three of those cases. If we look back since 2002, there have been 20-something cases where elements of bad faith have been a factor in applications. When we are talking about confidentiality and the ability of the Attorney-General—not the Minister, I say to Mr Cunliffe—to put decisions into the public arena when he thinks it is in the public interest, there are very good reasons for that.

We had a case with a judgment in February of this year for an individual, who has been mentioned in this debate, who now has refugee status in New Zealand. He is living in New Zealand and probably will remain here for the rest of his life. When we read this judgment, which could not be released with the claimant’s full name, it tells us some very interesting facts about this individual. If we look at paragraph 100 of the judgment, the judge who wrote this said that this man deliberately misled all those who have taken up his cause in the belief that he has been sentenced to death. If we go over to paragraph 105 it says that he is a manipulative and opportunistic individual who is indifferent to his sworn obligation to tell the truth. Tell the truth! In paragraph 121 it says the untruths told by the appellant, the false documents he has produced, and his general lack of candour in dealing even with those who are his strongest supporters is evidence of the underlining utilitarian nature of his belief, in the absence of a true commitment to his new proclaimed faith. This is a gentleman who became a refugee in New Zealand because he claimed he had converted to Christianity, when, in actual fact, there was no way that he had and the judgment fully illustrates that fact.

So we are saying that people might be acting in bad faith, but if they convince people around them who are acting in good faith—maybe supporters from their church—to take up their case in public, the good-faith actions of those third parties will not be of any help to them. Mr Cunliffe was complaining that it was not appropriate that classified information should be available to refugee and protection officers in the first instance. I remind him that this was a change that Labour members proposed at the Transport and Industrial Relations Committee. So, perhaps he should have spoken to his own members in refuting that particular point.

The bottom line in Part 5 is that if refugees act in good faith and tell the truth throughout, they will be fine. If they manipulate their circumstances and lie to try to claim refugee status, that will not help them, and they will be exposed. Quite frankly, if one goes out there and talks to the public, this is the right side of the argument to be on.

💬 Hon Lianne Dalziel: If one misrepresents the situation like you’ve just done now.

No. There is no misrepresentation there, I say to Ms Dalziel. That is absolutely the case. The member said that hard cases make bad law. There are plenty of hard cases out there, which mean that the amendments in my Supplementary Order Paper are absolutely needed. The National Government and our coalition partner—

💬 Hon Lianne Dalziel: You’re vindictive, bullying, and nasty.

This debate has been very good-natured till this point. Now it is getting personal. We have had an attack on the very, very good Minister for Social Development and Employment, Paula Bennett, and now I am being attacked personally for an excellent Supplementary Order Paper. The Government stands by this. I think this will be a good thing for New Zealand, it will clean up the process, and, certainly, we fully support it.

I have to respond to that contribution from the Minister of Immigration. I have been listening to the debate, and I have to say that I am not convinced. The State will always have the upper hand in refugee decisions. In the end, the decision is one that the State takes. If the State does not think that it can deal with the occasional bit of criticism, then it needs to grow up a bit and grow broader shoulders.

In the end, the State’s will will prevail, and the State will win if it is acting legally. If, in the meantime, the State suffers a bit of criticism through interest groups advocating on behalf of someone whom they feel sorry for, then that is the price of an open democracy. I cannot see why that is a terrible thing. Those who cannot stand criticism should not be involved in democracy. We all have to put up with criticism. At times that criticism feels unfair, but, in the end, we rely upon the media to get a bit of balance. In respect of the immigration cases that have been discussed, I think that the media largely does provide balance in those situations.

The idea that the Crown should have some superior right or a sword of Damocles hanging over the neck of anyone who is brave enough to criticise poor decisions or poor process is wrong. I do not think we should support that particular amendment to the bill that is proposed in Supplementary Order Paper 32. What is wrong with people criticising the Crown or arms of Government? There is nothing wrong with that; that is what we are talking about.

I do not think that the previous Labour Government was particularly damaged by some of the accusations that were made by people who were claiming refugee status, even when those claims were wrong. Lots of claims are made in society that prove to be wrong, but, none the less, people have the right to make those claims.

Let us say that in the future we have a Government that approaches these refugee decisions wrongly, it starts to move away from the cross-party position that we have had over many years in New Zealand, and for reasons of political gain it decides to act unjustly. I am not saying that the National Government would do that, but there is always a risk that a future Government would. How do people protect themselves against the inappropriate use of governmental powers? Effectively, Governments can stack refugee appeal panels with people who will find against refugees in a way that I would find abhorrent. In that situation, I think I would want the media to be able to get close to those refugee claimants and to expose the situation for what it is. I hope it will never come to that, but I certainly think that the fourth estate, in league with people who are involved in refugee claims, should have the right to make those accusations in the future if that circumstance arises.

I do not think that the proposed amendment set out on the Supplementary Order Paper should be countenanced. From a matter of principle, it should not be countenanced. Is it necessary? No. The prior law has not had that level of protection, and Governments did not fall because of it. When I was a member of the previous Government, at times the rule annoyed us, but in the end it did not bring down the Government. In the end there were plenty of countervailing forces in society that were willing to argue against the rights of refugees and to put the other side of the debate. I do not think any injustice was caused to the Government as a consequence of the prior rule.

I am completely unconvinced by the justifications the Minister in the chair gave, and I encourage members of the House to vote against this proposed amendment on the Supplementary Order Paper. Thank you.

I rise in support of my Labour colleagues in terms of the Minister’s amendment. I think it is very bad to have a subjective term such as “good faith” scattered throughout the Supplementary Order Paper. There are a couple of factors that I think we need to bear in mind, and they follow on from what David Parker said.

One thing to bear in mind is that when refugees make their applications, they are often desperate. They see it as a matter of life or death for them and their families—sometimes wrongly, but that is often the attitude. As anyone who has been involved in this field knows, they sometimes embellish their applications. Refugees in that situation could be seen as operating in bad faith, and they could easily be swept aside if this Supplementary Order Paper goes through in its present form. I think that refugee authorities generally take into account the fact that one does not hang everything on whether a person says something that is not entirely true.

The other factor is that there is, unfortunately—partly through the wrongful efforts, in my opinion, of a previous member of this House, Winston Peters, and his party—a widespread prejudice against refugees. I was brought up in the tradition that Jewish refugees from Nazi Germany, etc., are people who have suffered and need our support, comfort, and compassion. But there is, because of the efforts of certain politicians, a feeling that somehow refugees are spongers. There is not a full understanding of what refugees are and how we must support them.

The case the Minister just quoted is interesting. It is a case I know quite intimately. When that case was put on the Refugee Status Appeals Authority website in February, the lawyer for the person involved made it quite clear, and went to the media to clarify the situation. The lawyer made it clear that many people who knew that person—workmates, parishioners, priests, the lot, including myself; I did not make a submission but I can testify about this person—testified that the person was a genuine Christian convert. The people who convinced me the most were his workmates, because he had no reason to try to convert them to Christianity. He is one of the most religious people I have ever met, and he could quote the Bible backwards.

That report on the Refugee Status Appeals Authority website does not mention that every single person who knew him and testified for his conversion to Christianity said he was a dedicated Christian. Nobody made a statement to the contrary, but the Refugee Status Appeals Authority did not even mention that. In my opinion, an injustice was done in that respect, although he now has refugee status for other reasons.

If we add an amendment like this, which adds a subjective element like good faith, where are we going with that? It could create terrible problems. Thank you.

Let me contribute to this debate by saying how easy it is for a refugee to be tricked into telling a mistruth. This is an honest, straight story from my own experience. It is those same two guys I mentioned in an earlier speech. When I got to the ship, the captain assured me they were Liberian. He had no written record and he had no reason to mislead me. He was a Chinese national who spoke perfect English, and he told me they were Liberian. They were not. The two guys in question had papers to say they were Rwandan. The papers came from a United Nations High Commissioner for Refugees office in Libreville, the capital of Gabon. They were not Rwandan.

The reason they carried papers to say they were Rwandan was that when they fled their country, Cameroon, and crossed the border to get away from the secret police, they spent 6 months in Gabon. The secret police came after the six of them. One of them disappeared, the other five fled, and two of those five ended up in Port Chalmers, Dunedin. Before they fled, they went to the United Nations High Commissioner for Refugees office in Libreville and were advised to be Rwandan because Rwanda was hot. Do members remember? So they got Rwandan papers with United Nations High Commissioner for Refugees certification that they were from Rwanda, their names, etc., and carried the papers with them to New Zealand and presented them to me. They then said through an interpreter “We are not Rwandan.” I was pretty confused. So back again through the interpreter, the cop I was telling members about, I came to a deal. I said I would back these guys if they did two things: never run away, and always tell the truth. That deal was struck on the night I got them off the ship, and they have never broken it.

The next morning the first question I asked them was their nationality. Through the interpreter again they said “Cameroonian”. I gave them the subscriber trunk dialling for Cameroon—0237. I told them if they had a phone number of anyone at home—these guys had been missing for 9 months altogether—they could ring someone and tell them they are still alive, and here are the digits they need to get into their country. They rang the number and I waited in the next room. Of course, all hell broke loose with the joy from one of those guy’s mothers.

That is how I learnt their nationality and that they had told the truth, even though they had papers telling me something else. That is how easy it is to make a mistake when someone is a refugee, and I say to the Minister that I think this is wrong law and we should abandon it.

Firstly, I acknowledge my colleague the Hon Pete Hodgson. For one thing, his was an amazing story that not only was he able to get those two Cameroonian gentlemen off that boat but also he took them in to his home for 4 years. I would like to publicly say that that tells us something about the man, as well as the former Minister.

I will divert slightly and recognise the immense courage of the refugee community. Many of us have been to a refugee and migrant day, for example at one of the Auckland festivals. I remember going to one early in my time as Minister of Immigration and coming away thinking that it was we who are privileged to have that body of people in our country, because most of them are amazing individuals with incredible qualifications. The fact that they have survived what they have been through to get here tells us that they have amazing character, as well.

On that note I will come back to the points that my colleague David Parker made with great eloquence. The State has immense resources. Two gentlemen who were traumatised, who were cooped up in a cabin for 6 months, who could not speak the language, who had false documents, and who had no friends and no phone numbers had the whole power of the State, the ministry, and the Minister arrayed against them. The State of New Zealand does not need these illiberal clauses for truth to prevail in refugee decision-making.

The Minister said that if refugees act in good faith and tell the truth, then they will be fine. I am sure he believes that. We would all like to believe that that would always be the case, but here is the rub: usually, telling the truth is not good enough in the law. It was not good enough for the mums on the domestic purposes benefit when the Minister’s colleague the Minister for Social Development and Employment outed their personal files. That action was deplorable, it was unethical, and it should have been, and may be, illegal. It was not good enough for the prison officers who testified at a select committee recently and who were told by the prison service, which was backed up by the Minister’s colleague the Minister of Corrections, that they stood to lose their jobs if they dared speak out against a provision of the Government. We live in a democracy and we ought to treasure that. We ought to at least offer some rights to have the considerations of democracy extended to refugee claimants.

Going back in history a way, it should not have been the case that Robert David Muldoon outed Colin Moyle in the Chamber, not because he was allegedly gay but because Robert Muldoon was violating his sworn duty as the Minister responsible for the Security Intelligence Service and in the Chamber used as a political debating point information that came to him by law in a different capacity.

💬 Chris Tremain: I raise a point of order, Mr Chairperson. The member is a senior member of the House; he knows that we are debating a particular part of the bill on refugees, and he is using the debate to go way outside the scope of the bill. Can I ask him to come back—

I will come back to the bill, Mr Chairperson. I take the member’s point.

The CHAIRPERSON (Eric Roy): Righto.

The reason why I brought up those unsavoury examples is very, very closely related to the bill. In all cases, the judgments of the three Ministers concerned—Bennett, Collins, and Muldoon—were arguably outside the law, and they argued against the rights of the individual. What it boils down to with the Supplementary Order Paper—which runs against the swim of the rest of the bill, which has a good balance—is that refugee claimants cannot even inadvertently have their information going into the public domain without being liable to be deemed by a desk officer in the Immigration Service to have acted in bad faith. Therefore, they are prevented from having their case heard. It will not be the case of a decision being found against them or there being a bias against them; they cannot even have their case heard, because they are judged to have waived their rights and thereby all their defence. The State does not need that power.

In regard to the other clause in the Supplementary Order Paper about the supporters of a claimant, refugees deserve to have referees if they have them. There is alpha and beta risk here. Yes, it is true that it is possible in some cases for referees to be duped, but it is equally true, probably more often true, that there can be valid referees whose appropriate testimony is disallowed under this provision because somewhere along the process, in circumstances such as those that my colleague the Hon Pete Hodgson outlined, somebody is deemed to have told an untruth or supplied a document that may not be accurate in all respects. Anyone who is familiar with refugee claims knows that after the hell that claimants go through, somewhere along the line that situation is not uncommon.

The question was put that the amendments set out on Supplementary Order Paper 32 in the name of the Hon Dr Jonathan Coleman to Part 5 be agreed to.