Immigration Bill

I appreciate the opportunity to speak in support of Part 6 of the Immigration Bill. Part 6 provides for a streamlined deportation process that balances efficiency with fairness, and that is really the thrust of the whole bill. The deportation process as outlined in Part 6 brings together numerous provisions from the Immigration Act 1987. Words like “removal”, “revocation”, and “deportation” itself are put into an ordered framework that sets out a person’s rights and, just as important, a person’s obligations. The deportation thresholds broadly reflect the status quo, with enhancements to ensure that they are up to date and that they enable New Zealand to remove people who are not New Zealand citizens who do the wrong thing. A sovereign State must always have the right to remove people who do the wrong thing—in this case, those who do not comply with the New Zealand immigration system, or who do not comply with New Zealand law.

A key change is that in most cases the bill allows a person, with the exception of a foreign national who is unlawfully in New Zealand, to remain lawfully in New Zealand while that person’s appeal against deportation liability is being heard. This means that if the conditions of that person’s visa allow it, he or she can continue to work or study until that time—that is fairness. The bill allows for liability for deportation to be cancelled or suspended at the discretion of the Minister of Immigration, and the Immigration and Protection Tribunal can suspend a deportation liability of residents. However, a suspension may be used where the Minister wants to put a foreign national who is liable for deportation on to a form of good behaviour bond. Again, there is fairness and balance.

The Transport and Industrial Relations Committee, which held hearings into the bill—although I was not a member of the committee when those hearings were held—recommended an amendment to allow the cancellation of a deportation order of a foreign national unlawfully in New Zealand. This will facilitate the voluntary departure of foreign nationals. The ability to cancel a deportation order has some protections built around it so that it does not become another avenue of appeal for foreign nationals seeking to defer their departure from New Zealand. Again, this is balance and fairness.

One change the Government is making is the provision that the Minister can order the early release from prison of any foreign national offender who is liable for deportation, after having considered the safety of the community that the offender will be deported to. When an offender has been sentenced to 2 or more years in prison, he or she may not be released for deportation until he or she has served the lesser of a minimum of 2 years or one-third of the sentence. The requirement that an offender spend a minimum of 2 years or one-third of his or her sentence in prison in New Zealand is a clear signal about the desirability of offenders serving their sentences. But in exceptional circumstances, such as where the offender may have a serious medical condition and is being deported because of excessive cost to the health system or there are scarce flights available to deport an offender about be released, such as during a busy holiday period, the Minister has a discretion. I commend Part 6 to the Committee.

It is a pleasure to rise in support of Part 6, covering deportation. It is probably appropriate to begin by relating to the Committee the process that the Minister will be all too aware of, concerning the difficult decisions that Ministers and officials face in relation to what was formerly known as removal and deportation, and is now known as deportation. When a migrant has been accorded residence, but that status is removed from the migrant, typically because he or she has committed serious criminal offences, the decisions concerned are always very, very difficult—well, not always, but they are often very difficult. Although the migrant may clearly have done wrong, very often he or she has a family that has not done wrong and who will be fundamentally affected by the decision to deport the family member.

I guess the first thing I want to do is to acknowledge that those decisions are not taken lightly; they are not taken lightly in any case. Ministers rely heavily upon the advice and good offices of the department, which prepares extensive and thorough briefings, and particularly in difficult cases thanks are due to the department’s legal service, which can offer helpful advice at the most crucial of times. I would also like to acknowledge ministerial office staff, who provide invaluable assistance in helping Ministers to make those difficult and life-changing decisions for the people who are potential deportees.

We come to the provisions in Part 6. The essence of this part is to streamline a system that was more complex and more difficult to understand, into one that is more easily understood and implemented. It takes what were known previously as removal decisions for people who were not residents, and deportations for the revocation of visas and permits of non-citizens, and streamlines them all into a process called deportation—one word—for people who have visas; one word. That irons out, in and of itself, undue complexity. It also introduces more flexibility because rather than being a win/lose, pass/fail, it is easier to have gradations of decision making that are appropriate to the nature of the particular case that comes before Ministers.

The next clauses of the part are around the deportation by Order in Council of non-citizens who are a threat or who pose a risk to national or international security. This part of the bill tightens the requirement that a Minister cannot make such serious decisions on his or her own; the Minister must go to Cabinet and on Cabinet’s recommendation go to the Governor-General for an Order in Council.

I am sure there are many reasons why I cannot go into the details, and probably the official secrets legislation is but one, but I can clearly recall one case, and probably some of the officials present will remember too, when there was a grave risk concerning an individual who had allegedly—we think almost certainly—been proximate to the 9/11 bombings. Without breaching any secrets or going into the details of the case, it was possible, fully in compliance with the law and the Order in Council process, while preserving all of the appropriate legal rights of the individual, to have that person removed from New Zealand inside 48 hours from discovery of the circumstances. It was a proper, thorough, and expeditious process that protected the citizens of New Zealand. An Order in Council process was used. It was appropriate, because it was a serious matter, and it was done quickly. There is no reason why that should not be the requirement for the exercise of this very strong power. It requires Cabinet scrutiny, it requires the Governor-General’s final check, and it requires an Order in Council process.

It is a new provision of this bill that residents are liable for deportation if, within 5 years of residence being granted, new information relating to character applicable at the time of residence being granted indicates that the person would not have been granted residence if the information had been available. That is to say, if new information comes to light that changes the original decision to grant a residence permit, that information can subsequently be brought to bear upon the case to allow deportation to be effected. The types of cases that that might apply are where somebody has clearly lied to a very serious extent to falsify the conditions under which he or she gained entry. When that lie is discovered, clearly that person would not have been granted the original decision and that decision can be reversed, and the person is subject at that point to deportation.

I also want to mention that flexibility has been introduced in terms of the post-deportation re-entry bans, which were previously set at a 5-year bar for deportees. The new system allows the re-entry ban period to be graduated according to the circumstances of the case. In my view, that is both humane and ethical, and it is also good because it provides an incentive for compliance by the deportee—firstly, that he or she should leave New Zealand before being deported; and, secondly, if the worst comes to the worst and the person has to be deported, that the full circumstances of the case can be applied in determining what the re-entry period should be.

Those are just a few of the issues that occur in Part 6. In general, the Labour Opposition believes that this part is well crafted, it is well-thought-through, and in contradistinction to the amendments to Part 5, that it does offer an appropriate balance between the protection of the citizens of New Zealand, the ability to hear complex cases thoroughly, and the ability to move expeditiously when national security is threatened. Thank you.

I have an amendment to Part 6. It seeks to omit clause 152, “Deportation liability of persons threatening security”. That is a very short clause, but the key point is in subclause (1): “Where the Minister certifies that a person constitutes a threat or risk to security, the Governor-General may, by Order in Council, order the deportation from New Zealand of that person.” That gives quite extreme powers to the Minister, under the vague definition of a threat or a risk to security. This provision, as expressed in the previous Immigration Act, was applied to one person, and it may be the person that the previous speaker was referring to, a person by the name of Rayed Mohammed Abdullah Ali.

I want to talk about his case because I think it shows the injustice of that clause in the old Act and the similar one in the new bill. This person was Yemeni, but he went to school with one of the September 11 bombers, and one of the September 11 bombers flatted with him in the United States. When the September 11 event took place, he went directly to the FBI and voluntarily told the FBI everything about the situation. The American Government—he was married to an American woman—said he could stay in America. If he had been a danger to security he would have been kicked out of America, but he was not. He was told he could stay in America.

After some time in America he got so sick of the witch-hunt against Islamic people that he left voluntarily and went back to work in his parents’ business in Saudi Arabia. Then he decided to continue his flying lessons and he came out here. There was no prima facie case, or any obvious case, that he was a danger to the security of New Zealand, but he was picked up under the provision existing in the previous Act and, by Order in Council, was kicked out of the country. He had no legal representation.

When he arrived back in Saudi Arabia, where he had been living peacefully with his family and working in his family business, he was thrown in jail. He was thrown in jail because he had been expelled from liberal New Zealand. It was considered that someone who was expelled from liberal New Zealand must be a danger. His family visited him in jail and now he is in the community and no danger to anyone in Saudi Arabia. That is his history and it can be checked; he is a real person, he does live, and the Government can check. The Government made completely the wrong decision in that case and that can be proven by facts. That is where this legislation is so bad.

Interestingly enough, this person’s name and picture were flashed on the news on Television New Zealand last night during a special item about biometric testing relating to this bill. It stated that, somehow, if we had had biometric testing, Rayed Mohammed Abdullah Ali would have been picked up and would never have got into the country in the first place. That would have been an injustice, too, because he was not associated with September 11, and that is easily proven. His name ended up in the 9/11 commission report, because all sorts of names were just chucked in that report, but he was cleared. That case shows that we have to have a due process. We cannot have a Minister just throwing people out of the country willy-nilly.

The other point I want to make is about an improvement brought in by the select committee under clause 168, which gives discretion to the Minister. Clause 168(1) states: “The Minister may in his or her absolute discretion reduce, or remove altogether, the period of prohibition on entry that would otherwise apply to a person under section 167(1).” It gives the Minister power of discretion. Often when a person is living illegally here and an MP is advocating on his or her behalf there is a certain justice in the person staying here. We want to remove the prohibition on entry. Thank you.

I want to make a couple of brief comments on this part, as we have an alumni of former and, obviously, current Ministers of Immigration.

💬 Hon David Cunliffe: It’s a big club.

It is a big club, as my colleague says. The issue of deportation is dealt with in Part 6, and as a former Minister of Immigration I participated in and, I believe, signed off a few deportations. I say to Keith Locke that every immigration decision—and I am sure the Minister will agree—is a unique decision. None that I dealt with was a mirror copy of another.

When it comes to deporting human beings in respect of national security, I have to tell that member that I support the clauses in this bill. And if it came to a decision—and I was party, I think, to one—I would err on the side of the defence of our country, even if I got it wrong. The worst that could happen, I have to say, in deporting a person where there was evidence—and the member cited a case that he believes was wrong—is that somebody, an individual, is deported. I recall the case the member was talking about, and I do not believe the decision was wrong. But let us just for a moment say hypothetically that it was wrong. Well, when it comes to the balance between minimal damage to an individual or his or her reputation, and protecting the people of this country, I know where I stand. I put New Zealand before that person.

The member says that it is possible, even with the safeguards of going to Cabinet, and to the Governor-General for an Order in Council—and I sat in on one of those particular cases—for a decision to be wrong. Politicians and departmental officials are only human, so it is possible that information may be wrong. Information provided by intelligence agencies to officials, to the Minister, or to Cabinet may be wrong. But somebody at some point, I say to that member, has to make a call.

I say again to the member, Keith Locke, that he ought to think very, very carefully about the comments he makes. Maybe one day in the future he will be placed in a position where he is required to make a decision and have a role in such a case. I have to say to that member that if it came down to it again, I would not change a thing. A Minister is reliant, as is a lay person, on the information provided. I do not think that many former Ministers of Immigration have ever been experts on immigration. In fact, I suspect that many of us have never been experts in either the portfolios we hold now or the ones we have held previously. We have to make decisions—and when it comes to the national security of this country I would not change a thing. I would not change a decision I have made.

The counterfactual is pretty simple. If a Minister does not believe the intelligence or the advice from officials, who generally are the specialists, and the Minister lets a person stay and the decision goes wrong, who pays for that? I suspect that it will not be Mr Locke, me, or the current Minister. Nobody in this Parliament would personally pay for that decision. It would be the innocent folks outside this Chamber, the innocent families outside this Chamber, who would be on the receiving end of, potentially, a terrorist act.

So, although I respect Mr Locke’s view, I have to say—as one who has sat in the Minister of Immigration’s seat, along with colleagues who are former Ministers of Immigration, and Minister Coleman, who sits in the seat now—that these decisions are not made lightly. These decisions generally take an exhaustive amount of research, and we have to rely on the intelligence we get. I again ask Mr Locke to think through the practicality of his stance on this issue.

I recall speeches made by Mr Locke after 9/11, and I recall saying to Mr Locke that I would have liked him to, just occasionally, make comments in remembrance of the 3,000 innocent individuals who died at the hands of terrorists. I challenged Mr Locke at the time—

💬 Keith Locke: I did—several times.

The member said he did; I take him at his word. But I ask him to put himself in the shoes of the people who are on the receiving end.

I conclude by saying again to Mr Locke that if I was in the seat that Minister Coleman is in now, and if I received evidence and intelligence that I believed was credible, and if it was a decision about removing somebody on the basis of the information I was given and protecting the citizens of this country, I know where my duty lies. I know where it lay, and I know where it would lie in the future. The duty of every politician in this Chamber is to protect New Zealand’s citizens. If that means getting it wrong because we are human, so be it.

The question was put that the amendment set out on Supplementary Order Paper 31 in the name of Keith Locke to clause 152 be agreed to.