Previous | Contents | Next

IMMIGRATION COMMISSIONER

43. A number of submissions contain recommendations for increased scrutiny of the immigration system, particularly where it is perceived that there was no independent appeal right. Approximately 10 submissions also call on the Government to establish an Immigration Commissioner to oversee the work of the Department, including decision-making, use of powers of entry and inspection or search, and detention. The submissions contain few allegations of systematic issues or faults in immigration practice in support of the proposal. Generally, they focus on the Bill itself and concerns regarding potential abuses, rather than current practice.
44. In all cases where a power can be exercised under the auspices of the Bill, a person has either:
    1. formal avenues of review and appeal to the Tribunal, the courts, the Ombudsmen, the Privacy Commissioner or the HRC, along with
    2. informal avenues to challenge the decisions of immigration officers or to make a complaint about the exercise of immigration powers, or
    3. both formal and informal avenues.
45. It has long been considered appropriate for certain non-citizens to have no formal immigration appeal or review rights where a decision is essentially about making an exception to the normal requirements of the immigration system, and where a temporary visa application is declined offshore. The current departmental reconsideration of onshore temporary entry decline decisions is also considered appropriate. It is important to note that there has been no reduction in appeal or review rights in the Bill.
46. Formal avenues of complaint, appeal and review outside the Bill include the complaint-making procedures established in the:
    • Ombudsmen Act 1975
    • Human Rights Act 1993
    • Official Information Act 1982
    • Privacy Act 1993, and
    • Habeas Corpus Act 2001.
47. Non-citizens can also seek judicial review of most exercises of statutory power under the Bill. Additional remedies can be sought under the New Zealand Bill of Rights Act 1990 (BORA), including injunctive relief from deportation. Informal avenues include writing to the Department, or to ministers.
48. Unless some of the current appeal and complaint making mechanisms are limited, the establishment of an Immigration Commissioner would have the potential to create parallel and duplicate appeal or review mechanisms.
49. This would serve to undermine the effective operation of the current mechanisms that represent the status quo under the 1987 Act. It may also create delays in the effective operation of the immigration system. The establishment of an Immigration Commissioner would also come at some considerable cost, requiring the establishment of a new agency with an appropriate support structure that was overseen by a Government agency.
50. In response to the concerns raised in the submissions, I have directed the Department to report back to me on initiatives that could be used to increase awareness about the current formal and informal mechanisms and remedies available to non-citizens engaged in the immigration system. Developing such initiatives would be valuable in addressing the concerns about perceived lack of oversight. Some examples include:
    1. making information about mechanisms and remedies more available and accessible in Immigration New Zealand (INZ) offices and online, and
    2. developing a client service charter for INZ staff that includes lines of accountability where a complaint is made.
51. I also note that the Immigration Advisers Licensing Act 2007 will help ensure that the immigration advice given to non-citizens is regulated. The purpose of that Act is to:

“promote and protect the interests of consumers receiving immigration advice, and to enhance the reputation of New Zealand as a migration destination, by providing for the regulation of persons who give immigration advice”.

52. The Immigration Business Transformation (IBT) project also provides an excellent opportunity for the Department to review its interaction with its clients and work towards improved client services, including timely and consistent decision making in the exercise of all powers under immigration legislation. For these reasons, I do not recommend establishing an Immigration Commissioner.

---

Previous | Contents | Next