1

In summary, classified information is information that the chief executive of the relevant agency certifies in writing cannot be disclosed. 

Submitters express concern that any chief executive can classify information.

2

If it is classified information, potentially prejudicial information (PPI) can be withheld from non-citizens.

A number of submitters are of the view that all PPI should be disclosed to non-citizens if it is to be used in decision making.

3

There are limitations on the role of the special advocate.

Some submitters expressed concern over the limitations on the special advocate.

4

If classified information is to be used in a refugee or protection claim, the Immigration and Protection Tribunal (the Tribunal) must determine that claim.

The claimant in this situation would have no appeal on their claim, only an appeal on points of law to the courts.

5

The Bill creates greater efficiencies in the appeals process, while maintaining standards of fairness.

The Transport and Industrial Relations Committee (the Committee) and submitters have expressed concern that the appeals process does not appear to be fully streamlined.

6

The Bill provides a framework for managing non-citizens who hinder their departure. 

Where a warrant of commitment (warrant) is sought, the Bill does not create an initial presumption for the detention of non-citizens who claim refugee/protection status after they have been served with a deportation liability notice, or have been arrested and detained pending turnaround and deportation.  Further, after the initial six month period of detention, the court has discretion to grant a further warrant of commitment for non-citizens who hinder their departure.

7

A court, in considering a warrant of commitment application, could exercise its jurisdiction to grant bail to a non-citizen.

These powers could be used to undermine the specific provisions for detention and monitoring under the Bill, which is contrary to the policy intent of the Bill.

8

The person in charge of an “approved premises” can give effect to the detention of non-citizens only under a warrant of commitment. 

The Bill does not provide the ability for the person in charge of approved premises to give effect to the detention of non-citizens within the 96 hour period of detention without a warrant.  This is inconsistent with the policy intent. 

9

Clause 305(b) of the Bill makes it an offence for a person to produce any document or supply any information to an immigration officer knowing that it is false or misleading, unless the person has a “reasonable excuse”. 

The “reasonable excuse” defence in clause 305(b) is broadly and inconsistently interpreted by the courts or a jury, which can lead to difficulties in obtaining a conviction for the offence.

10

Clause 350 provides the Human Rights Commission (HRC) with the power to perform most of its functions under section 5 of the Human Rights Act 1993 (HRA), but it limits the jurisdiction of HRC in matters of immigration law or policy. 

HRC opposes the current limitation to its jurisdiction imposed by the Bill which retains the status quo of the Immigration Act 1987 (the 1987 Act).

11

Under the provisions of the Bill citizens may not hold a visa.

This will adversely impact on dual citizens.  For example, dual citizens by descent would be forced to register and provide proof of their citizenship, even if they wanted to visit for a short time using their foreign passport.

12

The Bill provides that people seeking entry to New Zealand may be required to provide biometric information to confirm their identity.

There is no negative outcome for people who refuse to comply with the requirement to provide biometric information.

13

Information on refugee and protection matters must be kept confidential in many circumstances.

The provision in the 1987 Act has been subject to litigation around whether information from a refugee status proceeding can be used for extradition or prosecution purposes. 

14

Generally, there is no right of appeal against a decision of the Minister to decline a residence class visa, including where classified information has been used.   

Excluding an appeal right where classified information has been used would not allow independent scrutiny by the Tribunal of the veracity and relevance of the classified information.

15

The Bill is silent on criteria for leave to appeal to the High Court or judicial review proceedings.

Specifying criteria for leave would add clarity to the legislation and ensure that matters appealed were those of importance, reducing the use of the appeal and judicial review process to delay deportation. 

16

Courts must give priority to appeals involving classified information proceedings.  There is no requirement to give priority to other immigration matters.

Delays in hearing any immigration matters involving those unlawfully or temporarily in New Zealand can have a significant effect on outcomes.

17

The Bill does not contain an offence for fraudulently or improperly dealing with endorsements in foreign passports.  

It is possible that endorsements in foreign passports, which indicate citizenship, could be misused by non-citizens.         

18

The Bill does not outline the requirements for proving New Zealand citizenship to get an endorsement.

It would be useful to provide clarity on the requirements for obtaining a endorsement.