Section 9 - The Use of Classifed Information |
Section 5: Decision-making proposed options that would allow immigration applications to be declined on the basis of classified information without giving the information and reasons for decisions to the applicant. Both options proposed that in the case of offshore decision, appeal mechanisms are not warranted. No further mechanisms are required to protect the classified information in these cases. This section, therefore, does not discuss the use of classified information in offshore decisions.
Rather, this section considers options for the use of classified information, including classified security information, in onshore decisions. This section considers the mechanisms that would be needed to protect the classified information where:
Part 4A of the Immigration Act Special procedures in cases involving security concerns is not covered by this section as it is outside the scope of this review. Part 4A covers the use of classified security information relating to a security risk where the government considers the appropriate response is to detain and expel the person. It is the part of the Immigration Act that is being used in regard to Mr Ahmed Zaoui.
The New Zealand government has a classification system for official information held by government organisations. This ensures that information is protected according to the degree of harm that could result from its unauthorised disclosure. When official information has a classification, specified standards for its handling and protection must be followed.
Chief executives and heads of government departments and agencies, State Owned Enterprises and Crown Entities have the authority to classify material using the approved classifications. Chief executives and heads may delegate authority to classify to senior staff, but sparingly.
The New Zealand Government also has international obligations and statutory responsibilities to protect classified material received from allies, friendly nations and international organisations. Material must be classified at a level not less than that in force in the country or organisation of origin.
Classified security information refers to classified information held by the NZSIS and the Government Communications and Security Bureau. Other classified information may come to the attention of the Department of Labour through agencies such as the New Zealand Police or Customs Service, or overseas agencies.
This subsection discusses how classified security information (classified information held by the NZSIS or the Government Communications Security Bureau) could be used in decisions on onshore applications for residence or a further temporary permit. These agencies focus on maintaining New Zealand's security and may hold classified information about an individual that relates to New Zealand's security.
This section only refers to cases where the appropriate response is not to detain and expel under Part 4A.
As discussed in Section 6:Exclusion and expulsion, a core function of immigration legislation is to set boundaries on who may be excluded from New Zealand and who may be expelled. As discussed in Section 5: Decision-making, in most cases, natural justice requires that information that is potentially prejudicial to the applicant should be provided to the applicant before declining an immigration application. They should be allowed to respond to the information, and be given reasons for the decision.
There are, however, a number of reasons why classified information should not be disclosed to an immigration applicant or refugee/protection status claimant. These feature in the Official Information Act 1982 as reasons for not releasing information. Disclosure of the information may:
Because potentially prejudicial information should be disclosed to immigration applicants for natural justice reasons, and because classified information cannotbe disclosed, classified information (security information or otherwise) is not currently used in immigration decision-making. Classified information that cannot be released to an applicant can currently be used only as a starting point to find open-source confirmation of the information. Open-source information (information that is freely available and can be shared with the individual concerned) can then be used as the basis for decision-making.
Under the New Zealand Security Intelligence Act 1969, the NZSIS can make recommendations in respect of matters to be decided under the Immigration Act and the Citizenship Act 1977. This power is not currently used in the immigration context because of the current requirements to always give potentially prejudicial information and reasons for decisions to applicants.
This power is used in the citizenship context. The Minister of Internal Affairs may decline citizenship on character grounds on the basis of a recommendation from the Director of Security (NZSIS). In such cases, the person may complain to the Inspector-General of Intelligence and Security (Inspector-General).
The Inspector-General is an independent watchdog for New Zealand's intelligence and security agencies. Appointed by the Governor-General, the Inspector-General must have previously held office as a judge of the High Court of New Zealand.
The Inspector-General may investigate any act, omission, practice, policy or procedure of an intelligence and security agency. This includes the NZSIS and the Government Communications Security Bureau.
When citizenship is declined on the basis of an NZSIS recommendation, the Inspector-General may review the case and make such recommendations as the Inspector-General sees fit. A final decision on the citizenship application remains with the Minister.
In the immigration context, the current system (apart from Part 4A) requires all information used in decision-making to be disclosed to and contested by the applicant or claimant.
In the citizenship context, the ability for the NZSIS to make recommendations on security concerns, with independent review by the Inspector-General, allows New Zealand to make decisions about to whom it will grant the rights and privileges of citizenship using all the information available.
Other than in the case of Part 4A, classified information cannot be used as the basis for deciding an immigration application or refugee/protection claim. This may prevent New Zealand from making appropriate decisions when open-source information is unavailable.
Part 4A provides a process for detaining and removing a person who is a security risk. However, the legislation does not provide a process that allows the Department of Labour simply to refuse to grant a visa or a permit on the basis of classified security information. Not all persons identified by classified information as being of concern warrant immediate arrest, detention and expulsion from New Zealand as is required under Part 4A.
Australia, Canada and the United Kingdom (UK) have provisions enabling immigration decision-makers to use classified information.
In Australia, unless a visa applicant can satisfy specified public interest criteria they will not be granted a visa. Classified information may be used to inform the assessment against public interest criteria (for example, that the person is not a risk to Australian national security, or that the person's presence in Australia would not be prejudicial to relations between Australia and a foreign country). In such cases, only generic reasons for decisions are given to applicants.
Public interest criteria apply to all visas, except for special purpose visas and some bridging visas. There is no ability for a declined visa applicant to challenge an adverse assessment against the public interest criteria.
In Canada, the Minister of Immigration may make a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organised criminality. The information in the certificate may be security or criminal intelligence obtained in confidence from a source in Canada, or from a foreign government or organisation.
The Minister of Immigration refers the certificate to the Federal Court. The judge must ensure the confidentiality of the information if its disclosure would be injurious to national security or the safety of any person. The judge then makes a determination as to whether the certificate is reasonable. This determination is final and is not open to judicial review, but may be challenged under the Canadian Charter of Rights and Freedoms. There is a high number of challenges under the Charter.
The UK uses classified information in immigration decision-making, where this relates to national security. Where the Secretary of State deports or excludes someone from the UK on national security grounds, or for other public interest reasons, on the basis of sensitive information, there are no standard rights of appeal. However, there are rights of appeal to a body called the Special Immigration Appeals Commission (SIAC). The SIAC may review the case and make a final decision on whether the appeal should be upheld or not.
Retaining the status quo in its current form does not allow New Zealand to make immigration decisions using classified security information and is not considered to be robust. The proposal below builds on the existing functions of the NZSIS and Inspector-General. It mirrors the current practice in the citizenship context.
As discussed in Section 6: Exclusion and expulsion, exclusion criteria apply to all residence and temporary applicants. This proposal builds on that in Section 6 to introduce character grounds for exclusion into the legislation.
Under this proposal, legislation would specify that grounds for excluding someone on the basis that they were not of good character would include a recommendation by the NZSIS (based on classified security information). The NZSIS would fully disclose the information to the Minister and brief him or her on the recommendation.
The Minister could then choose to rely on the recommendation or not. The Minister could only rely on classified information where open-source information was not available.
If established, this function is most likely to remain with the Minister of Immigration. In the interests of flexible legislation for the future, there would be an ability to delegate this function to senior security-cleared immigration officials.
Where an application was declined on the basis of an NZSIS recommendation, under the existing Inspector-General of Intelligence and Security Act 1996, the declined applicant could make a complaint to the Inspector-General. The Inspector-General could undertake a full review of the NZSIS's recommendation that the person should be declined a permit on character grounds. There would be no further right of appeal to the immigration appeals tribunal.
If, however, the Inspector-General found that the NZSIS recommendation was unfounded, and the Minister of Immigration upheld his or her decision to decline the application for other reasons, the person could then appeal to the immigration tribunal.
The new provision could be used for people who present a risk to New Zealand's interests, but whose risk can be managed by preventing further extensions of their stay. Unlike Part 4A, the new legislative provision would not require the immediate arrest of the person affected, nor would it require their immediate removal.
This approach would clearly shift the weighting of immigration legislation from the individual's interests to New Zealand's interests. It would allow the government to exercise its sovereign right to choose who may enter and remain in New Zealand and provide for more integrity in the immigration system.
New Zealand could decline an immigration application on the basis of an adverse security finding by the NZSIS. This approach would build on successful existing processes in the citizenship and security vetting contexts. It would ensure that immigration applicants have the same rights of complaint as New Zealand residents applying for citizenship and applicants for a New Zealand government security clearance.
Creating a more flexible overall risk-management regime would allow certain prescribed risks to be managed by simply refusing additional permits, without requiring a person to be detained and removed under Part 4A. It would establish a process that would be streamlined and is most likely to meet the objective of efficient decision-making.
Importantly, this approach provides for the use of classified information to be impartially reviewed. This provides assurance that the process will be well scrutinised.
The process outlined would only be initiated where open-source confirmation of the information was unavailable. This would ensure maximum transparency in immigration decision-making, and keep the need for the Inspector-General's involvement to a minimum.
Decisions made under the new process could be contentious. Although a similar process has been used for some time in decisions related to denial of citizenship and security clearances, this is an untried process in an immigration context. Judicial challenges are likely the first times it is used.
This proposal may require some additional resources for the Inspector-General.
Security information about a person working on a temporary permit in New Zealand comes to the attention of the NZSIS. One month later, the person applies for residence in New Zealand. The Director of Security (NZSIS) recommends to the Minister of Immigration that this application be declined based on security concerns. The Director of Security gives a full briefing to the Minister on the information and their recommendation. The Minister declines the application on character grounds without disclosing the classified information to the person.
The person complains to the Inspector-General who reviews the case. The Inspector-General finds that the NZSIS recommendation was robust and reasonable. The person has no further avenue of appeal to the immigration tribunal. They may remain in New Zealand until their temporary permit expires and then they must leave.
9.1 Key question
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This subsection discusses how classified information held by the New Zealand Police, Customs Service or other departments, or an overseas agency, could be used to decide onshore applications for residence or a temporary permit.
Classified information other than classified security information (as defined above) does not relate to security concerns. It may relate to criminality, identity, or credibility generally. For example, it may give reason to believe that a person has been involved in serious human rights abuses or genocide, or is a member of a group which has engaged in trans-national crime.
As discussed in Section 9.1, in most cases, natural justice requires that information that is potentially prejudicial to the applicant should be provided to the person before declining an immigration application.
As with classified information held by the NZSIS, classified information from the New Zealand Police, Customs Service, other departments or an overseas agency cannot currently be used in immigration decision-making.
In addition, Part 4A only applies to NZSIS information. This means there is currently no mechanism, even in the most serious cases, for dealing with concerns raised about a person on the basis of classified information from a source other than the NZSIS.
The current system (apart from Part 4A) requires all information used in decision-making to be disclosed to the applicant. This ensures that the decision-making process is fair and transparent.
Currently there is no ability to use classified information from sources such as the New Zealand Police, the New Zealand Customs Service and overseas agencies.
As discussed in Section 9.1 above, New Zealand may be prevented from making appropriate decisions when open-source information is unavailable.
Australia, Canada and the UK have provisions enabling immigration decision-makers to take classified information into account, as outlined in Section 9.1 (paragraphs 530-535) above. These countries have one set of processes that do not distinguish between sources of classified information.
For the reasons identified above, retaining the status quo in its current form is not considered to be robust. The proposal outlined below sets up a new process, different to that outlined in Section 9.1 for two reasons:
Only the NZSIS has the statutory power (under the NZSIS Act) to make recommendations in regard to decisions made under the Immigration Act. No other government department or overseas agency can make recommendations in regard to decisions under the Immigration Act.
The role of the Inspector-General, under the Inspector-General's Act, is focused on reviewing intelligence and security agencies only. The Inspector-General has no mandate to investigate complaints about other government departments.
The legislation would establish a new process to allow classified information from sources other than the NZSIS to be used in residence and onshore temporary permit decisions.
As with the proposal in Section 9.1, this provision could be used for people who present a risk to New Zealand's interests, but whose risk can be managed by preventing further extensions of their stay.
Under this provision, the Minister of Immigration could rely on classified information, from a source other than the NZSIS, to decide an immigration application without disclosing the information to the applicant. The classified information concerned may relate to anything that is relevant to legislative or policy criteria. It would only be used where open-source information was not available. The Minister would be briefed on the information by the agency concerned.
At this stage the function is most likely to remain with the Minister of Immigration, but there would be flexibility to delegate it in the future to senior security-cleared immigration officials.
Once a decision was made on the basis of classified information, the person would be informed that their application had been declined, on the basis of classified information that could not be disclosed. They could appeal this decision to the independent immigration and refugee tribunal.
Only a member of the tribunal who is a judge could be designated to hear the appeal. This approach builds on the option discussed in Section 8:The independent appeal bodies, for the chair and deputy chair(s) of the new immigration and refugee tribunal to be appointed as District Court Judges. The judge would be privy to the classified information, but could not disclose it.
It could be possible for the tribunal to establish a role for a security-cleared 'special counsel' who could have access to the information and represent the person. The applicant themselves would not have access to the information. This type of arrangement would increase the extent to which the interests of the applicant were independently represented. Special counsel provisions in other jurisdictions have raised complications and their design would require careful consideration. Clear guidelines would be required to balance the interests of the applicant and the government.
Following this review, there would be no further right of appeal
The tribunal would consider both whether it was appropriate to use the classified information and whether the decision was correct according to the relevant policy or legislative criteria. The specific tests to be applied by the tribunal will be developed in the next stage of the Immigration Act review. At this stage, it is considered desirable that the tribunal addresses:
The new Immigration Act would need a definition of classified information that is consistent with other statutory definitions. In summary, it could be defined as information that, if released, may:
This approach would allow for the use of classified information from sources other than the NZSIS in immigration decision-making, while protecting the information from disclosure. It would provide assurance that immigration decisions are not made in error, or without full consideration of the facts, due to information being withheld from the decision-maker. It would help ensure that immigration policy is not abused.
This approach would have the same benefits as the proposal in Section 9.1. It would:
Using a judge from the independent immigration and refugee tribunal provides confidence that the person will also have the best possible knowledge and expertise in immigration law. It provides assurance that the process will be well scrutinised. The use of security-cleared counsel would reinforce this.
As with Section 9.1, decisions made under the new process could be contentious. Judicial challenges are likely the first times it is used.
Classified information about a person working on a temporary permit in New Zealand comes to the attention of the New Zealand Police. One month later, the person applies for residence in New Zealand. After a briefing, the Minister of Immigration declines the application on the basis of the classified information, on character grounds. The Minister declines the application without disclosing the classified information to the applicant.
The person appeals the decision to the immigration and refugee tribunal. The appeal is undertaken by a designated judge on the tribunal who is given access to the classified information. The judge may put any potentially prejudicial information other than the classified information to the person for comment. The judge finds that the original decision was robust and reasonable. The person has no further avenue of appeal. They may remain in New Zealand until their temporary permit expires and then they must leave.
9.2 Key question
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This subsection discusses how classified information could be used in refugee or protection status determination, at first instance and on appeal. It discusses the use of classified information from both the NZSIS and other agencies (such as the New Zealand Police and overseas agencies).
As with standard immigration decision-making, classified information cannot be used in refugee status determinations, either by a refugee status officer or the Refugee Status Appeals Authority, because the information cannot be disclosed. Classified information can only be used as a starting point to find open-source confirmation of the information.
A refugee or refugee status claimant may have a security risk certificate issued under Part 4A. This information cannot be used in the actual refugee determination process, but may be used in regard to refusing a permit or possible subsequent expulsion.
The current system (apart from Part 4A) requires all information used in decision-making to be disclosed to and contested by the applicant or claimant. It ensures that the decision-making process is fair and transparent.
What are the problems/opportunities?
Classified information cannot currently be used in the course of deciding a refugee/protection claim. This may prevent New Zealand from making accurate refugee/protection determinations when open-source information is unavailable.
Refugee/protection decision-making is different to standard immigration decision-making. Temporary and residence policy have character provisions that set a threshold for approving an application. Refugee/protection decisions are based on international conventions and do not factor in character issues, except in the most extreme cases. These conventions are discussed in more detail in Section 14: New Zealand's role as an international citizen. Therefore, it would not usually be possible to decline refugee/protection status on the basis of an NZSIS recommendation as proposed for temporary and residence decisions in Sections 9.1 and 9.2.
Classified information could be useful in determining that someone was excluded from protection under the relevant international convention. More commonly, however, it is likely to be useful in determining the credibility of a claim. In particular, classified country information and information that relates to the activities of the person would be useful.
Canada, Australia and the UK do not allow the use of classified information in refugee/protection determinations, on the basis that it cannot be disclosed to the claimant. Their provisions do allow for classified information to be used in expulsion cases for refugees or failed refugee status claimants.
For the reasons identified above, retaining the status quo in its current form is not considered to be robust. It may prevent New Zealand from making accurate refugee determinations. The proposal below builds on the approach in Section 9.2.
The legislation would establish a new process to allow classified information (whether from the NZSIS or another source) to be used in refugee/protection determinations.
Under this provision, a senior security-cleared refugee/protection officer could rely on classified information to decide a refugee/protection claim, without disclosing the information to the claimant. It is not proposed that this function sit with the Minister of Immigration for the same reasons that refugee determination is currently vested in refugee status officers.
The classified information concerned may relate to anything that is relevant to the international conventions being assessed. It would only be used where open-source information was not available. The senior security-cleared officer could receive a brief on the classified information from the NZSIS or other intelligence agency.
Once a decision was made on the basis of classified information (in part or in full), the person could appeal to the independent immigration and refugee tribunal.
The appeal process outlined in Section 9.2 would also apply here. Only a judge could hear the appeal, and special counsel provisions could be used. The role of the tribunal outlined in paragraphs 571 and 572 would also apply here
The New Zealand Police give classified information on a refugee status claimant in New Zealand to the Department of Labour. A senior, designated refugee status officer is assigned to the case, and allowed access to the classified information. The officer considers the classified information in the context of all of the other information they have been provided by the claimant, but may not disclose it to the claimant.
The officer decides to decline refugee status on the basis of the classified information. The person appeals to the immigration and refugee tribunal. The case is assigned to a judge on the tribunal designated for this function.
The judge has access to the classified information but may not disclose it. They review the case on the grounds set out at paragraphs 571 and 572. The judge may put any potentially prejudicial information other than the classified information to the person for comment.
The claimant may have 'special counsel' who has access to the classified information, and can make representations to the decision-maker on behalf of the claimant (but cannot disclose it to the claimant).
In this case, the judge decides that the person is not a refugee declines the appeal.
This approach would help to ensure that refugee/protection status is not given in error, or without full consideration of the facts, due to information being withheld from the decision-maker. It would help ensure that protection provisions are not abused.
Importantly, this approach allows the use of classified information to be impartially reviewed by the judiciary. This special consideration by an independent person of high standing provides assurance that the process will be well scrutinised. Using a judge from the independent immigration and refugee tribunal provides confidence that the person will also have the best possible knowledge and expertise in refugee law.
This approach would establish a process that would be streamlined and is most likely to meet the objective of efficient decision-making. The process outlined would only be initiated where open-source confirmation of the information was unavailable. This would ensure maximum transparency in immigration decision-making and keep the need for appeals to a minimum.
As with the proposals under Sections 9.1 and 9.2, decisions made under the new process could be contentious. Judicial challenges are likely the first times it is used.
9.3 Key question
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