Immigration Bill

The debate on Part 7 includes debate on clauses 169AA to 239A and schedule 2.

I propose several amendments to this part, and I will go through them quickly. I will make a general comment, which flows from the previous part. The question here is justice.

💬 Hon Member: We’ve moved on.

The question in the bill as a whole is justice, and justice requires legal representation—a fair go. This should apply—

The CHAIRPERSON (Lindsay Tisch): We are on Part 7. I ask the member to concentrate on Part 7.

Thank you, Mr Chairman. The first clause I want to amend is clause 174B, which removes the right to appeal in relation to transit visas. It is quite an extreme clause, in a way. The clause states: “(1) No appeal lies against a decision of the Minister or an immigration officer on any matter in relation to a transit visa, whether to any court, the Tribunal, the Minister, or otherwise. (2) No review proceedings may be brought in any court in respect of any decision to refuse to grant or to cancel a transit visa.” It is just too extreme to cancel that appeal right, even to a court, because there can be injustices in every area of immigration. Sure, transit visas might be the lowest level of visa in the sense that a person might be just passing through briefly, but to rule out appeal rights entirely is not correct.

I have had complaints about the existing provisions on transit visas, where sometimes people from Australia or India have had to pass through New Zealand quickly on their way to a funeral or something like that. They were not granted the transit visa or else it was too difficult to get one, and it caused great problems. I think that there has to be a provision for appeal rights.

The next amendment is to clause 195(1)(b), which relates to the membership of the tribunal. The problem with this clause was illustrated by a number of people who made submissions to the Transport and Industrial Relations Committee. They said that because the tribunal is merging a lot of authorities, the specialist experience of the Refugee Status Appeals Authority could get lost. The authority was a specialist tribunal established under the 1951 refugee convention. My amendment will try to reinstate some of that specialist experience in the new body. My amendment states that “at least one of the members of the tribunal has to have extensive experience in refugee law:”. I think that measure is fair enough, and it fits into a lot of what was said in the submissions to the select committee.

People also made submissions to the select committee about the Refugee Status Appeals Authority being viewed as a very respected body that contributes to international jurisprudence on refugee law. It is very hard for the tribunal to do that unless at least one of its members has refugee law experience. There is clause 195(1)(c), where a representative of the United Nations High Commissioner for Refugees can serve as an ex officio member on matters relating to refugees. But the United Nations High Commissioner for Refugees may not take up that role and it does not have a permanent officer in New Zealand, anyway, so I think that we need more than that. We need somebody with expertise in refugee law on that tribunal.

The next clause I want to amend on behalf of the Green Party is clause 231(2). With the present wording of that clause the chief executive of one of the relevant agencies—14 different agencies can provide classified information in relation to the immigration processes, including to the tribunal—which might be the Ministry of Fisheries or whatever it might be, has the power of veto over the tribunal as to whether classified information that has been provided should be released. The chief executive has the power of veto over even the Supreme Court. If we follow the cases that have taken place in our courts, we see that often there is a contestation between those who have classified information and the complainants, and the court adjudicates on this matter.

In the Ahmed Zaoui case the Security Intelligence Service was gradually forced to give out more and more information as part of the risk certificate process. In the Aziz Choudry case, back in 1996, the court required the Security Intelligence Service to give out certain information into the public realm, because, in effect, it was part of the court case. I do not think that we can override the courts, and my amendment is intended to prevent that from happening.

My amendment to clause 231(2) states that the chief executive is to be consulted on the question of classified information, not that the chief executive has to consent to the release of the information—that is, the chief executive of the relevant agency would no longer have a power of veto, but has to be consulted before the tribunal releases information that the agency deems to be classified. The next amendment relates to review provisions and it amends clause 234. That clause limits reviews on the use of classified information. I think that if members read it, they will see that it is fairly clear there should be a proper ability to review the use of classified information.

My final amendment relates to special advocates. There is a whole section on the role of special advocates, and the use of special advocates has been very controversial around the world. So far we have had only one experience of special advocates in New Zealand, and that was Stuart Grieve, who was appointed by the Government in the Ahmed Zaoui case. He gave quite a detailed submission to the select committee that was considering this bill. He said that most of the so-called classified information he received was out in the public space anyway, on the Internet or wherever. A lot of it was wrong and a lot of it was presented out of context. I think he showed the importance of having some independence in the process.

The big problem with clause 238, as it is at the moment, is that special advocates may not communicate with the people for whom they are being the special advocates after they have received the classified information. Even though a special advocate is the legal person appointed, effectively, by the Government to represent, in Stuart Grieve’s case, Ahmed Zaoui, no real dialogue can take place between that advocate and the person after the advocate has received the classified information. My suggestion is to eliminate that restriction so that clause 238(1) will simply state: “The special advocate may communicate with person A or person A’s representative.”—that is, the client in the immigration case. My amendment would omit the rest of subclause (1). I think we have to trust that person to not convey unnecessarily detailed classified information.

Part 7 of the Immigration Bill is very large. It covers appeals, reviews, and other proceedings, including, as my colleague Keith Locke has said, the use of special advocates and classified information as part of the appeal process. Why is this part here? Well, let us begin with a short homily. Imagine refugee claimant X loses a claim, then goes to appeal and loses the appeal. Then he or she goes to the Removal Review Authority and loses the second appeal. On the way to the airport he or she thinks of a new ground for a fresh appeal, and the whole process goes back virtually to the beginning. The process can take years and can cost the taxpayer millions of dollars. Usually, it does not change the outcome.

I have spoken on a number of occasions to say that collectively we have worked hard to make sure that there are sufficient human rights protections in the bill, and this part is no different. It has appropriate human rights protections, but, my goodness, we needed to streamline the process. It was getting rorted—I think that is the technical term.

There is no justification for repeat appeal processes that are or appear to be designed simply to elongate the time the claimant can live in the country no matter how often or how decisively the various appellate bodies say he or she has to go. The system has been open to abuse, and the taxpayer has been footing the bill. We have had enough, and the system is being changed. It is being changed in a thoughtful way, not a thoughtless way, because the provisions of Part 7 amalgamate the appellate bodies into one tribunal and give the claimant one shot to make a thorough and comprehensive appeal, both on points of law and on humanitarian grounds. The appellant loses none of his or her substantive rights under the law and, it can be argued, has a better chance of success by being able to deal with all the grounds in one process. Refugees’ rights are not being curtailed, but what is being curtailed is the abuse that has too often occurred, and of which I think the public has had a gutsful.

Administrative efficiencies are made by joining the various appellate bodies into one. It was almost unbelievable that as a Minister I would get quarterly or monthly reports from each of the appellate bodies that appeared to be identical. We could hardly tell one from the other, but they were all covering separate matters, and the whole process was done in quintuplicate to make each one comply with the reporting provisions. It is much better to have them confined—

💬 Amy Adams: Quintuplicate. How many is quintuplicate?

Five, but I am taking the odd liberty with the English language, as the member from “The People’s Republic of Canterbury” has pointed out.

💬 Amy Adams: You need a visa to get in there, David, and you wouldn’t get one.

I thank Ms Adams very much. I grew up there. Part 7 is a good part. It has been well-thought-through. Very few changes have been made by the Transport and Industrial Relations Committee. That is the other thing the Committee needs to record, and I think it goes to the original drafting of the bill Several of the particular changes that the select committee has recommended are about an appeal to the tribunal against a declined refugee or protection status claim, combined with lodging a humanitarian appeal, being allowed against removal—that is, the humanitarian appeal and the refugee protection status claim can be combined against a declined claim. That extends slightly the opportunities that were in the earlier provisions of the bill as introduced. The changes reported back from the select committee have been relatively minor.

The final point I will touch upon very lightly concerns the aspects of this part of the legislation that are about classified information. I note for the record that an enormous amount of time and effort has been put in by various agencies of the Crown to find a formulation here that is duly respectful to human rights yet is effective when necessary. That has involved a lot of consideration and some negotiation, and there is some extension from the select committee around, for example, clauses 239 and 239A on the appointment of an amicus curiae by the tribunal or a court, in addition to the role of a special advocate. I believe, and it may be contained elsewhere in the bill, that the use of classified information is limited if a summary cannot be produced and the appropriate safeguards of the special advocate cannot be effected. In that case the ability to use the classified information is restricted or not used at all. That is an even tighter formulation than in the bill as originally introduced, and I have no problem with that tightening.

In summary, taken as a whole—and the Minister may wish to comment on this—Part 7 ends a well-known loophole in the system whereby refugee claimants could make successive fresh claims every time an appeal was found against them. That process could take years, and after 10 or so years they could make a claim on the grounds that they had been here for a decade—because they had lodged 15 different appeals—and were well settled and now their children were settled in school. The process cannot be so open to abuse. Now we have one combined process, involving an appeal on the law and the facts, as well as a humanitarian appeal, with full consideration of all of the relevant legal rights in one process. The case is heard and a decision is made, and the decision is final on appeal. That is as it should be. Thank you.

I want to finish explaining my amendment to clause 238 in Part 7 on the issue of special advocates. I think those members who have followed criminal trials, particularly the David Bain case, which was one of the most recent, will be able to understand how complicated it is to get to the bottom of what happened. Often context is everything. In that case David Bain and his lawyer conversed about the context of the case and the Crown evidence. It went to and fro, more witnesses and evidence came forward, etc., and it was very difficult to get to a resolution. We can see the problem with special advocates who are appointed by the Government and represent a complainant in an immigration case. The special advocate gets all this classified information and does not quite know the truth or falsity of it, or the context of it, and needs to ask some questions. Perhaps those questions will be put in an indirect form so as not to disclose the sources of the classified information, but the special advocate needs to get more of a context of that information to properly represent the complainant in an immigration case. That is all the amendment is about. We just have to trust the lawyer appointed by the Government, not by the complainant, in these particular cases.

Finally, I will explain a bit further my amendment on Supplementary Order Paper 31 to omit clause 234 “Restriction on appeal and review”, so that appeals may be taken in cases involving classified information. Clause 234(1) states: “No appeal or review proceedings may be brought in respect of classified information” under the Act. Clause 234(2) states: “no appeal lies and no review proceedings may be brought in respect of—(a) a determination of the Minister” using classified information. That is out of bounds. It may not be done in respect of “(b) the form or content of a summary prepared”—that is the summary of the classified information, or in respect of “(f) a decision to withdraw, update, or add to the classified information.” None of that is subject to review. My amendment would at least allow a review to take place. In any case, new subclause (2A) has been inserted and it is a good clause. It states that no appeal under section 219 may be brought before the tribunal unless the tribunal has issued its final determinations. That means one can get to the end of a process but there can be some appeal or review process beyond that point. I think that is important for justice.

I will touch on Part 7 in respect of a couple of comments that my colleague David Cunliffe made in terms of the amalgamation of the appeal processes, and I will reinforce the point that this does not mean the removal of people’s rights to have their case examined. With one appeal to one tribunal, with the same individuals sitting on it, there is actually an advantage in that the same individuals on that tribunal will hear the case and will be briefed on it. That is preferable to having several layers of appeal, over several years in many cases, where other individuals will come and listen to that case.

💬 Hon Member: Tell a few war stories.

My colleague says I should tell a few war stories, but I do not think I will.

I recall another issue that these amendments in Part 7 will deal with. It relates to the sorts of cases that have happened all too often where individuals have launched multiple appeals and publicised their cases to the point where, ultimately, the final appellant body rules that they cannot go home because they have raised the awareness of their cases to the point where they fear reprisals from the authorities in their own country. In one case I recall that somebody converted to my own religion of Catholicism, via the airport in Seoul. The person was from Iran, or it might have been Iraq; I think it was Iran. The person arrived in New Zealand having somehow had—and I can say this as an Irish Catholic—a road to Damascus experience, or an airplane from Seoul experience, and had seen the light and converted. The person publicised the case over many years to the point where it could be argued that a return home was not possible because all the authorities in the country of origin would have taken reprisals against that person, whereas had the person returned quietly that may, or may not, have been the case.

What an amalgamated tribunal will do, I hope, is deal with that issue, because my colleague David Cunliffe is right. I have experienced it myself, time and time again, and I know about the time wasted, the money wasted, and the energy of officials wasted. The politics—I do not mean in this Chamber, but outside it—are often erroneous, and community stakeholders are led down the garden path where people, bluntly, as my colleague said, attempt to rort, and often succeed in rorting, the immigration system.

This is a cold hard fact that Mr Locke may want to take note of: there are many occasions when people arrive illegally, having converted, as in the case I mentioned, in a miraculous way that goes beyond the good book, in biblical proportions, to a religion—I suppose it happened to the saints in that people do see the light and do the right thing—and they attempt to rort the system by throwing their passports away. Those cases need to be tested on fact and evidence. They need to be tested on fact and evidence, not on whether that person is a good bloke or a good woman, whether he or she is a good cook, or whether he or she might, from time to time, have cooked for the odd President, but on whether the case is genuine. If cases are dealt with on evidence and fact, often that will lead to a decision, sad though it may be, that people have rorted the system and that they should shuffle off and go home. When those decisions have been made, they protect the credibility and integrity of the decisions that rule the other way and say that because of people’s circumstances—for instance, genuine fear for their life or their family’s circumstances—there is a genuine case for those people to be retained within our borders in New Zealand. That protects the credibility and integrity of the genuine cases.

I remember saying, as the Minister of Immigration, that people will believe that our immigration decision-making processes have credibility and integrity, and that the right people are being allowed to stay or allowed to be let in, only if they also believe that our processes have credibility and integrity, and that the bad guys, or the rorters, are being, bluntly, booted out. If the last part does not happen, then the genuine cases are not protected, and the credibility and integrity of the process is lost.

We have seen in this Parliament instances where the notion of immigration, over many years, has been used by the odd MP as a good little fuse to light, generally 6 months or so before an election. That is a shame, because it calls into question all immigration decisions. But it must be the case, just like in any criminal case, for instance, that a wrongdoer faces the consequences, whatever they may be. It must be the case that if somebody comes to take advantage of our social systems, our quality of life, and our environment, and does that on false pretences, then, hard though it may be, that person should then return home and the process should be expedited. It should be done after a fair hearing of evidence and it should be done in an efficient way, as Part 7 as amended is promoting.

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 7 be agreed to.

Amendments agreed to.

The question was put that the amendment set out on Supplementary Order Paper 31 in the name of Keith Locke to omit clause 174B be agreed to.