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Recommendations

101. It is recommended that Cabinet:
     1. note that, where agreed, the recommendations below will be made to the Transport and Industrial Relations Committee;
     2. agree to the recommendations in Appendix A;
     3. note the recommendations in Appendix B;
     4. agree that the Immigration Bill be a code for natural justice in immigration and in refugee and protection decision making involving classified information;
     5. agree to limit classified information to information from security, defence, law enforcement, and border agencies and the Ministry of Foreign Affairs and Trade and the Department of Internal Affairs;
     6. agree to maintain the application of the Ombudsmen Act 1975, Official Information Act 1982 and Privacy Act 1993 in the classified information provisions of the Immigration Bill;
     7. agree to delete the words “in the opinion of the chief executive” in clause 5(1) of the Immigration Bill to make the definition of classified information more objective;
     8. agree that the chief executive’s power of delegation under section 41 of the State Sector Act 1988 should not apply to the definition of classified information in the Immigration Bill;
     9. agree that classified information cannot be used in immigration and refugee and protection decision making unless a summary of allegations can be provided to a non-citizen so that they may be informed of the gist of the prejudicial allegations;
     10. agree that the limitation on a special advocate lodging proceedings on behalf of a non-citizen under clause 235 of the Immigration Bill be lifted;
     11. agree that the Immigration Bill be redrafted to clarify the role of special advocates in matters involving classified information as having a duty to:
         1. the Immigration and Protection Tribunal (the Tribunal) and courts
         2. ensure that the classified information remains protected, and
         3. represent the interests of the appellant;
     12. rescind its previous decision that “all refugee and protection decisions using classified information must be made by the Immigration and Protection Tribunal” [CAB Min (07) 25/1A];
         
         

         And instead

     13. agree that the Immigration Bill be amended so that senior, security-cleared determination officers make first instance refugee and protection decisions involving classified information;
     14. agree that failed refugee and protection claimants be required to lodge their humanitarian appeal at the same time as their appeal against their declined refugee or protection claim;
     15. note that the Minister of Immigration has directed the Department of Labour to report back to him on initiatives that could be used to increase awareness about the current formal and informal complaint mechanisms and address the concerns of perceived lack of oversight of the immigration system;
     16. agree that the Immigration Bill be amended to partially restore the status quo of the Immigration Act 1987 so that, where a warrant is sought, except in exceptional circumstances, there is a presumption of detention of non-citizens who:
         1. claim refugee or protection status after they are served with a deportation liability notice, or who are liable for arrest and deportation, and
         2. deliberately hinder their departure;
     17. agree to exclude “length of detention” from being an “exceptional circumstance”;
     18. note that if recommendation 17 is agreed, the Department of Labour will work with the Ministry of Justice to endeavour to ensure consistency with the Bill of Rights Act and the International Covenant on Civil and Political Rights and the Ministry of Foreign Affairs will be consulted
     19. agree that a person in charge of an “approved premises” for the purpose of immigration detention (and any person acting under the authority of that person) be authorised to detain non-citizens, whether they are detained with or without a warrant;
     20. agree that the Immigration Bill be a code for the immigration detention of non-citizens;
     21. rescind the decision “where a non-citizen has exhausted all appeal rights and has no right to remain in New Zealand, and they have not departed after an ongoing period of secure immigration detention of 12 months, the Bill require the courts to consider ordering the non-citizen to either:
         1. cease the action preventing their departure being facilitated, or
         2. undertake an action in order to facilitate their departure” [CBC Min (06) 20/14];
     22. agree that the “reasonable excuse” provision be removed from the offence of knowingly producing false or misleading document to an immigration officer;
     23. agree to the insertion of an “avoid any doubt” clause that recognises that the offence in no way limits the application of Article 31.1 of the United Nations Convention relating to the status of Refugees;
     24. agree, in relation to the role of the Human Rights Commission in the immigration system, to:
         
         

         Either:

         1. retain the status quo of the Immigration Act 1987 which has been retained in the Immigration Bill
         2. Or,
         3. to enable the Human Rights Commission to intervene in legal proceedings (as an intervener or amicus curiae) in matters involving immigration law and policy;
     25. note that as the Immigration Bill is currently before the Transport and Industrial Relations Committee, no publicity is recommended in conjunction with this Cabinet paper.

 

Hon Clayton Cosgrove
Minister of Immigration

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