Review and appeal provide important mechanisms for ensuring the government is held accountable for the decisions it makes and the quality of those decisions. High-quality decision-making helps build New Zealand's reputation as an attractive migrant destination.
Any system of review or appeal must allow the government to ensure that the immigration system works in New Zealand's interests, as discussed in Section 3: Purpose and principles. It is in New Zealand's interests for the government to be able to both choose who may travel to, enter and stay in the country, and recognise particular individual interests (for example, where human rights obligations are involved).
This section discusses two broad mechanisms for the review of decisions, based on the interests involved:
- Internal review - A person may complain to, or seek a review of a decision from, the Department of Labour. The grounds for review are set out in legislation and are generally the same as the original decision-making criteria. Internal review provides a mechanism for ensuring that the Department of Labour delivers the immigration outcomes that the government determines are in New Zealand's interests.
- Independent appeal - A person may appeal to an independent statutory appeal authority. The grounds for appeal are set out in legislation and may be the same as, or broader than, the original decision-making criteria. Independent appeal provides a mechanism for ensuring individual rights are upheld where appropriate.
This section does not discuss changes to the role of the Ombudsmen or judicial review, which are additional avenues of review available in some cases. Access to internal review and independent appeal are, however, likely to minimise complaints to the Ombudsmen and the need for judicial review, which can be lengthy and expensive. Appeals against refugee/protection declines are discussed in Section 14: New Zealand's role as an international citizen
The role of the Ombudsmen
The Ombudsmen can inquire into complaints raised against the Department of Labour. They are independent review authorities and are accountable to Parliament, not the government. The Ombudsmen will generally consider investigating a complaint only after there has been an attempt to resolve the matter with the Department of Labour. They do not investigate the independent appeal authorities and will generally not investigate if there is an independent appeal avenue available to an applicant.
The role of judicial review
Under the Immigration Act, any person can seek judicial review of an immigration decision (initial decision or appeal) within three months of the decision. Some exceptions are specified in legislation, for example, offshore visa applicants cannot seek judicial review. Judicial review focuses on correct processes and procedures, rather than the substance of the decision.
7.1 What avenues of review or appeal should there be for decisions on temporary entry or residence?
This subsection considers who should have access to review of a decision to decline an application for temporary entry or residence. It considers whether this should be an internal review or the right to appeal to an independent appeal body.
Status quo
There are currently no internal review or independent appeal rights for applicants who are:
- declined temporary entry visas offshore
- refused entry at the border, or
- declined further permits when they are in New Zealand unlawfully.
The current system gives a more substantial right of appeal to declined residence applicants than temporary entry applicants. This model assumes that there are greater interests (for New Zealand and the applicant) attached to residence applicants because there are greater rights attached to residence.
In addition to the Ombudsmen and judicial review provisions noted above:
- declined temporary entry applicants onshore may seek internal review, as long as they apply while still holding a valid permit
- declined residence applicants may appeal to an independent appeal authority, the Residence Review Board. (Skilled Migrant and Investor Category applicants may only appeal if their application is declined following an "invitation to apply", not following an "expression of interest"), and
- the Minister of Immigration may intervene at any stage to grant a permit, but is not obliged to do so.
In 2004/05, 61 percent of all residence applications decided were lodged onshore. These accounted for 94 percent of approvals. 39 percent of residence applications decided were lodged offshore and accounted for 70 percent of declines.
Table 7: Numbers of temporary and residence decisions and appeals
|
2002/03 |
2003/04 |
2004/05 |
Total temporary applications declined* |
30,313 (8% of total decisions) |
29,426 (7% of total decisions) |
25,411 (6% of total decisions) |
Complaints to the Ombudsmen** |
216 |
176 |
164 |
Total residence applications declined |
6,711 (12% of total decisions) |
8,695 (18% of total decisions) |
6,160 (11% of total decisions) |
Residence Review Board - appeals lodged |
530 |
514 |
408 |
Residence Review Board - appeals decided |
309 |
410 |
418 |
Residence Review Board - appeals allowed *** |
98 (32% of total decisions) |
142 (35% of total decisions) |
137 (33% of total decisions) |
Judicial review of entry/stay declines |
9 |
11 |
13 |
Requests to the Minister of Immigration**** |
2,786 |
2,792 |
4,052 |
* Numbers of temporary permit reconsiderations are not collected.
** Numbers of complaints upheld are not collected, as most complaints are simply "resolved".
*** Includes reversal of original decision and referral back to Department of Labour for reassessment only.
**** Numbers of approvals by the Minister of Immigration are not collected.
What works well?
The current review and appeal arrangements generally reflect the interests at stake. These arrangements allow the government to be accountable to New Zealand for temporary immigration flows that meet New Zealand's needs, with little accountability to individual temporary applicants. They ensure greater accountability to the individual in the case of residence decisions where individual interests are arguably greater than the interests of temporary applicants.
It is considered appropriate for certain applicants to have no formal review or appeal rights where the decision is essentially about making an exception to the normal requirements of the Immigration Act and where a temporary visa application is declined offshore. No changes are proposed to the current arrangements that give no internal review or independent appeal rights for persons declined temporary entry visas offshore, refused entry at the border, or declined when they are in New Zealand unlawfully. This system is working effectively.
The current internal review arrangements for onshore temporary entry applicants are also considered to be appropriate, based on the interests at stake. Internal review of temporary permit declines provides a fair and efficient mechanism for allowing a person to challenge what are highly discretionary decisions. No options are proposed for change to onshore temporary entry review provisions.
Allowing declined residence applicants an independent appeal can be justified on the basis that:
- residence gives individuals greater rights in New Zealand and residents can ultimately apply for citizenship, and
- residence applicants are investing significantly more in the application process (higher fees, and health and character check costs in all cases) and can reasonably expect a greater avenue of review.
The independent Residence Review Board provides a robust mechanism for ensuring the Department of Labour's residence decision-making is fair and aligned with government residence policy. It allows expertise to be developed in government residence policy and relevant jurisprudence. The review provides a reliable source of quality control for the Department of Labour (in respect of residence decline decisions only). It also helps keep the numbers of judicial review and complaints to the Ombudsmen low (see Table 7).
What are the problems/opportunities?
While the current arrangements for residence appeals appear to work well, the Immigration Act review presents an opportunity to question whether they appropriately recognise New Zealand's and the individual's interests. Arguably, the government should have the right to decline residence applicants, without an independent authority overturning that decision. This is the principle behind the new Skilled Migrant Category, which limits the ability of applicants to appeal to an independent authority to those who are "invited to apply", not those refused at the "expression of interest" stage. This strongly emphasises New Zealand's right to choose the people who become residents.
As an alternative to removing independent residence appeals altogether, there is an opportunity to consider limiting the kinds of applicants who have access to independent appeal. For example, access to independent appeal could be limited to persons based onshore and/or persons with a New Zealand sponsor.
There is also an opportunity to consider what role the Minister of Immigration should play in considering personal representations once a residence application has been declined. As noted in Table 7 above and discussed in Section 5: Decision-making, requests to the Minister of Immigration are disproportionate to the number of appeals being lodged through formal channels.
What do other countries do?
Australia, Canada and the UK all link some avenues of independent appeal with sponsorship. Their approaches are outlined below.
Australia allows all onshore visa applicants (temporary and residence) a right of appeal to an independent immigration tribunal. If an applicant is offshore, an onshore Australian sponsor, such as an employer or family member, may appeal against the decision.
Canada only allows appeals to an independent board where they are made by the sponsor of the application for residence through the family class. All other declined applicants (whether onshore or offshore, temporary or residence applicants) may appeal to the Federal Court, with leave.
The UK has recently decided to remove all appeal rights for persons seeking to study and work in the UK. The only persons able to appeal to an independent immigration tribunal against declined immigration decisions will be those with close family sponsors.
Ireland provides only for internal review of immigration decisions (other than judicial review and complaints to the Ombudsmen). Ireland is currently reviewing its immigration legislation and has noted the following in its publicly released discussion paper:
"...the nature of immigration is that it is ultimately a matter for the discretion of the Minister of Immigration whether or not a non-national is permitted to enter or be in the State. In such circumstances, appeal to an independent body would be inappropriate. It is likely that the approach in the Bill will be to provide in general for internal review."
In Australia, Canada and the UK, as in New Zealand, a person may make a special request to the Minister of Immigration. In Australia, however, the person must exhaust all other avenues before the Minister will consider the case.
Proposal
Three options, including the status quo, are presented. Each option gives a different weighting to the interests at stake. Option A (the status quo) is based on the principle that all residence applicants have an interest at stake that warrants access to independent appeal. Option B is based on the principle that residence decisions should ultimately be at the discretion of the government. Option C is based on the principle that only some residence applicants have particular interests at stake that warrant access to independent appeal. At this stage, Option C is considered likely to best meet the objectives of the Immigration Act review and the principles of fairness, effective decision-making, efficiency and understandable and accessible legislation, and is preferred.
Under all three options, complaints to the Ombudsmen may be made about departmental decision-making and judicial review is available, except in the case of offshore visa declines.
The role of the Minister of Immigration
For all options, the new legislation would make a presumption that the applicant must make an application to the Department of Labour and seek review or appeal through formal channels. The Minister of Immigration would still have the power to intervene in any case, but under normal circumstances would not do so unless all other avenues were exhausted, and only if the case warranted such intervention. This proposal complements the proposal in Section 5: Decision-making to allow senior immigration officers to make residence decisions as exceptions to policy. Together, they are likely to help reduce the role of the Minister to exceptional cases and reduce the ministerial workload.
Option A - Status quo
Independent appeal is available for all declined residence applicants (onshore and offshore).
Benefits and costs
As discussed above, these arrangements ensure accountability to the individual in the case of residence decisions. The independent Residence Review Board provides a robust mechanism for ensuring the Department of Labour's residence decision-making is fair and in line with government residence policy. This option may not, however, be sufficiently weighted in New Zealand's interests because it does not differentiate between applicants on the basis of any connection to New Zealand.
Option B - Internal review for declined residence decisions
Internal review, but no independent appeal rights, would be available for declined residence applicants (offshore and onshore).
Benefits and costs
This option would ensure government's accountability for overall immigration flows was to New Zealand as a whole, rather than to individual applicants. Internal review of all residence decision-making would provide a check on quality and consistency. Over time, an internal review mechanism could assist the development of guidelines for the consistent use of discretion in residence decision-making. It could support the option presented in Section 5: Decision-making to delegate discretionary residence decision-making to the Department of Labour.
Unlike the current Residence Review Board, a departmental review process would be subject to complaints to the Ombudsmen, which may increase as a result. As this option provides for no independent appeal against decisions on residence applications, it may not be as robust as the status quo or Option C below. There would also be establishment and ongoing costs for the Department of Labour.
How would internal review work?
Under Option B, legislation would provide for internal review of both temporary and residence decisions. The detail of how internal review would work would be established by the Chief Executive or within a framework set by legislation.
In all cases, the reviewer would be senior to the original decision-maker and, in the case of residence reviews, would be part of a coordinated internal review mechanism. In all cases, the person could present written reasons as to why the permit should have been granted. The internal reviewer would consider whether the process was adequate, whether the decision was correct on the facts, or whether there should be an exception to policy.
Option C - Independent appeal for declined residence applicants onshore or offshore with sponsor
Internal review (but no independent appeal) would be available for declined residence applicants who are offshore with no New Zealand sponsor.
Independent appeal would be available for:
- declined residence applicants onshore, and
- declined residence applicants offshore where the appeal was lodged by the applicant's proposed employer or family sponsor.
Under this option, "sponsor" refers to a New Zealand resident or citizen who is prepared to support the declined applicant. Further work would need to be undertaken to define in more detail sponsorship requirements in this context. This option does not, however, refer to ongoing sponsorship requirements, which are discussed in Section 13: The role of third parties.
Benefits and costs
This option retains a role for an independent check on the Department of Labour's immigration decision-making, but reduces it to those residence applicants who are in New Zealand or who have a sponsor. It would signal, in a similar way to Australia's appeal policy, that there needs to be sufficient interest at stake for a person to challenge the Department of Labour's decision to decline residence. A New Zealand sponsor clearly indicates that there is a connection to New Zealand and that there are New Zealand interests at stake.
This option would establish an appropriate level of fairness and would meet the objective of ensuring that New Zealand's interests are protected and advanced. In combination with the proposal to create a single immigration and refugee tribunal (discussed in Section 8: The independent appeal bodies), this option would also support more effective and efficient decision-making.
This option could encourage people to come onshore on a temporary permit to lodge residence applications. Such encouragement could stimulate better settlement outcomes due to potential residence applicants spending time in New Zealand before lodging an application.
In 2004/05, 46 percent of residence appeals were family stream applicants and 25 percent of residence appeals were skilled stream applicants. Offshore family stream applicants and some skilled stream applicants are likely to be able to find a New Zealand sponsor.
There may, however, be a reduction in the number of independent appeals against residence decisions by offshore self-employed or business investor applicants who are unlikely to have a sponsor. These applicants would still have access to internal review. Declined business applicants accounted for 25 percent of residence appeals in 2004/05. This issue could be addressed by carefully considering who could be recognised as an acceptable New Zealand sponsor.
The option, discussed in Section 5:Decision-making, to delegate the power to make exceptions to residence policy to the Department of Labour is also likely to reduce the flow of residence appeals, as exceptions could be considered at an earlier stage.
This option would sit best with the proposal to establish a single independent appeals tribunal, as discussed in Section 8: The independent appeal bodies, with different streams of appeals. The single tribunal would ensure that a relatively light flow of residence appeals could be viable. The skills and expertise required for independent residence appeals could be sustained by a range of members who also worked on other streams of appeals.
Alternatives considered
The review considered a further option that would extend independent appeal rights to declined temporary work permit applicants, where they had been working in New Zealand lawfully for at least two years. This alternative was considered on the basis that long-term work permit holders may have similar interests to residence applicants.
This approach would open independent appeal rights up to a significant number of people, especially if students, who may work part-time, were included. It could create significant barriers to removal and impede the government's ability to regulate both immigration in-flows and removals in New Zealand's interests. It would not be in New Zealand's interests to grant independent appeal rights where the government has a high level of discretion regarding a person's stay in New Zealand.
A better outcome may be achieved by delegating discretion regarding residence policy to senior immigration officers, as discussed in Section 5: Decision-making. This could allow the department to make flexible residence decisions for temporary permit holders who have been in New Zealand a long time, but otherwise do not meet detailed residence policy criteria.
7.1 Key questions
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|---|
7.1.1 What role should an independent appeal authority have in regard to appeals against residence decisions?
This subsection considers what role an independent appeal authority should have when considering an appeal against a residence decision. This discussion is only relevant if it is decided that some or all declined residence applicants should have access to an independent appeal.
Status quo
The Residence Review Board currently has the power to uphold a decision, reverse an incorrect decision, refer a decision back to the Department of Labour for reconsideration, or recommend consideration by the Minister of Immigration as an exception to policy. In essence, the Residence Review Board has two roles:
- to ensure the Department of Labour's initial decision was correct in terms of government residence policy, and, if so,
- to determine whether there are any grounds for an exception to policy.
The Residence Review Board does not have the power to make an exception to policy. Exceptions must be made by the Minister of Immigration. In 2004/05, the Residence Review Board recommended consideration by the Minister of Immigration as an exception to policy in 10 percent of decisions made, or 44 cases.
There are no legislative guidelines for the Residence Review Board on recommending exceptions to policy. When assessing whether or not the person's circumstances warrant consideration by the Minister of Immigration, the Board simply weighs up the reasons for and against.
What works well?
The core function of the Residence Review Board to determine whether the initial decision was correct or not, and to be able to refer a decision back to the Department of Labour for reconsideration, provides an important quality assurance check for the department and the applicant. Under the status quo, it is appropriate for the Residence Review Board to refer consideration of exceptions to residence policy to the Minister of Immigration, as only the Minister has the power to make exceptions to residence policy.
What are the problems/opportunities?
As discussed in Section 5:Decision-making, the Immigration Act review presents an opportunity to establish clarity around who should have the power to grant a visa or permit as an exception to policy - the Department of Labour, an independent body, such as the Residence Review Board, or the Minister of Immigration.
What do other countries/authorities do?
In Australia, the Migration Review Tribunal (MRT) considers only whether the decision was correct or incorrect. Only the Minister of Immigration may make an exception to policy.
In Canada, only family class applicants can appeal to an independent board. The board can make an exception to policy if, taking account of the best interests of a child, sufficient humanitarian and compassionate considerations exist.
In the UK, the only avenue for appeal against immigration declines is for family applicants. The appeal may be brought on grounds that the decision was incorrect and/or unlawful under the Race Relations Act, Human Rights Act or Refugee Convention.
Other comparisons in New Zealand include:
- the Refugee Status Appeals Authority determines whether or not a person is a refugee, but makes no other assessment regarding special circumstances or immigration status, and
- the Removal Review Authority considers only special circumstances and does not review a departmental decision. It makes a decision regarding what type of permit a person should be granted, if any, and then refers the case to an immigration officer for action.
Proposal
Several options have been considered, including the status quo. At this stage, alternative options for change are not considered optimal, and the status quo is preferred.
The Residence Review Board (or equivalent independent authority) would continue to have the power to reverse an incorrect decision, or refer a decision back to the Department of Labour for reconsideration if due process has not been followed. It could continue to recommend consideration by the Minister of Immigration as an exception to policy.
Benefits and costs
The status quo would continue to allow the Minister of Immigration to consider exceptions to policy where the independent authority considers that this is warranted in the circumstances. It is an effective mechanism and does not have any significant problems. It complements the proposal set out in Subsection 7.1 above to reduce the role of the Minister of Immigration to involvement in exceptional cases only.
Alternatives considered
The following two alternatives have been considered that are not considered optimal:
- the independent authority refers possible exceptions to residence policy to the Department of Labour for consideration, or
- the independent authority makes decisions on exceptions to policy itself.
The first alternative was considered in light of the option presented in Section 5: Decision-making to allow senior immigration officers to make exceptions to residence policy. Given that the department would have already had an opportunity to consider an exception to policy prior to the appeal being made, it is likely to be more efficient and effective for the Residence Review Board to escalate any further consideration of an exception to the Minister of Immigration.
The second alternative would give the Residence Review Board the power to grant a visa or permit as an exception to policy without referral to the Minister of Immigration or the Department of Labour. This would not be a discretionary decision, but would need the application of a new "exceptions" test.
It is not desirable for an independent authority to decide what is appropriate for New Zealand (that is, essentially extending existing residence policy). This is a function that should sit with the executive government. The Department of Labour is directed by the Minister of Immigration in its decision-making - an independent authority is not. By setting out a test for exceptional circumstances, this alternative would effectively establish an additional humanitarian stream.
7.1.1 Key question
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7.2 What avenues of review or appeal should there be for expulsion decisions?
This subsection considers who should have access to review of a decision to expel them from New Zealand. It considers whether this should be an internal review or the right to appeal to an independent body. This section discusses all decisions to expel as set out in Section 6: Exclusion and expulsion.
Status quo
Any person who becomes liable for removal or deportation, or has their residence permit revoked, has at least one avenue of appeal in addition to a review by the Ombudsmen or a judicial review. Current provisions allow for both appeals on the facts (that is, liability for permit revocation) and appeals on humanitarian grounds (that is, where there are exceptional circumstances that should allow an individual to stay):
- A temporary entrant unlawfully in New Zealand has the right to an independent appeal against removal to the Removal Review Authority (on humanitarian grounds). They may also appeal to the Residence Review Board against any declined residence application before they become unlawful (on the facts and as exceptions to policy).
- A refugee whose status is found by the Department of Labour to have been falsely obtained may appeal against that finding to the Refugee Status Appeals Authority (on the facts). If they have citizenship, they may appeal against citizenship deprivation to the High Court (on the facts). They may then appeal again to the High Court (on the facts) and to the Deportation Review Tribunal (on humanitarian grounds) against residence revocation.
- A person whose residence permit is revoked may appeal to the High Court (on the facts) and to the Deportation Review Tribunal (on humanitarian grounds). Where relevant, they may also appeal against citizenship deprivation to the High Court (on the facts).
- A resident who is convicted of a serious criminal offence may appeal against deportation to the Deportation Review Tribunal (on humanitarian grounds).
- A resident whose deportation is ordered on the basis of their being a suspected terrorist may appeal to the High Court against this decision (on the facts).
Prior to all removals, an immigration officer assesses the case to ensure that New Zealand maintains its obligations under the Convention Against Torture, the Refugee Convention, the International Covenant on Civil and Political Rights and the UN Convention on the Rights of the Child.
Table 8: Appeals against expulsion and numbers expelled
|
2002/03 |
2003/04 |
2004/05 |
Removal Review Authority - appeals lodged |
475 |
415 |
410 |
Removal Review Authority - appeals decided |
425 |
391 |
300 |
Removal Review Authority - appeals allowed |
81 (19%) |
40 (10%) |
52 (17%) |
Actual numbers of removals (failed refugee status, overstayers, residence revoked) |
738 |
1,207 |
1,252 |
Number of residence revocations |
11 |
4 |
8 |
Number of deportations ordered |
22 |
13 |
25 |
Deportation Review Tribunal (against residence revocation and deportation) - appeals lodged |
31 |
25 |
50 |
Deportation Review Tribunal - appeals allowed |
1 |
4 |
3 |
Actual numbers of deportations |
5 |
5 |
14 |
Table 9: Projected numbers of residence revocations and deportations
|
2005/06 |
Projected number of residence revocations |
52 |
Projected number of deportations ordered |
51 |
What works well?
New Zealand's system of independent appeals authorities, while complex, is generally considered to be fair to the individual. In comparison to Australia and Canada, it also results in significantly lower levels of judicial review. New Zealand's independent appeal mechanisms are considered vital to maintaining low numbers of judicial reviews.
What are the problems/opportunities?
In contrast to the appeals system for temporary and residence decisions, the appeals system against expulsion is complex and inefficient. Any person liable for expulsion may have access to multiple avenues of appeal to different authorities, the courts and the Minister of Immigration. They can also appeal to the Ombudsmen and request a judicial review. This can create years of delays in reaching a final decision in some cases. Such delays generally decrease the justification for expelling the person due to humanitarian considerations and undermine New Zealand's ability to regulate immigration.
As set out in Table 8 above, the low number of actual deportations indicates that the current system is not effective. It does not allow the government to make decisions on who remains in New Zealand in the best interests of the country.
Small numbers of lengthy delays can be expensive for the taxpayer. Increased resources in fraud and investigation and better information-sharing with the Department of Corrections mean identified cases of residence fraud and serious criminal offending by new residents are forecast to increase. The time and resources spent by the Department of Labour in resolving these cases is also likely to increase.
The Immigration Act review presents an opportunity to question whether the system for appeals against expulsion appropriately recognises New Zealand's and the individual's interests. For example, there is an opportunity to consider whether government should have the right to expel some temporary entrants unlawfully in New Zealand without an independent authority overturning that decision.
What do other countries do?
In Australia, persons whose visas are cancelled or who are subject to a deportation order may generally appeal to an independent tribunal. The tribunals assess the case according to the law and policy on the matter - they do not consider humanitarian circumstances as in New Zealand. The person must go to the Minister of Immigration to receive a humanitarian assessment as an exception to law or policy.
In Canada, a person may appeal to an independent board against a removal order. The board can allow an appeal that was wrong in fact or law, or where it is in the best interests of a child. A person may also apply to Citizenship and Immigration Canada (CIC) for a pre-removal risk assessment on the basis of risk of persecution, torture, or cruel or unusual treatment or punishment in the country they may return to. In addition, a person may apply to CIC for permission to stay on humanitarian grounds.
In the UK, a person may appeal against removal, except where their exclusion is in the interests of national security or the UK's international relations. Any person making an asylum or human rights claim may appeal.
Proposal
For the reasons discussed above, the status quo is not considered to be optimal for the future. Appeals on the facts and appeals on humanitarian grounds are discussed separately below. The options discussed would build on Option B in Section 6:Exclusion and expulsion to streamline initial decisions to expel and to revoke residence only on departure from New Zealand.
The right to request a review by the Ombudsmen or to seek judicial review would remain in all cases.
The role of the Minister of Immigration
Under all of the options set out below, as discussed in Subsection 7.1 above, the new legislation would make a presumption that the person must seek review or appeal through the formal channels provided for. The Minister of Immigration would still have the power to intervene in any case but, under normal circumstances, would not do so unless all other avenues were exhausted and only if the case warranted such intervention.
Appeals on the facts
One appeal on the facts only
Only one appeal on the facts (against liability for expulsion) would be allowed. Temporary permit holders could contest liability for expulsion with the Department of Labour once only. Residence permit holders could contest liability for expulsion to an independent appeal authority once only.
In either case, if the person had been convicted by the court for an offence that made them liable for expulsion, they would not have access to departmental or independent appeal on the facts. The fact that they had committed an offence would already have been proven in the courts. Likewise, if refugee status had been cancelled, or citizenship deprived on the basis of fraud, the person would not have access to a further appeal. In each of these cases, the initial decision already carries a right of appeal to an independent authority or higher court on the facts of the matter.
Benefits and costs
This approach ensures that a person may contest whether they are actually liable for expulsion once only. Temporary permit holders are granted a conditional stay in New Zealand, and it is appropriate that the government retain control of the review of expulsion decisions for temporary entrants. New Zealand residents have been granted more substantial rights to be in New Zealand, and it is appropriate for them to be able to contest liability for expulsion with an independent authority.
The International Covenant on Civil and Political Rights
This approach ensures that New Zealand upholds its obligation under Article 13 of the International Covenant on Civil and Political Rights to provide persons lawfully in New Zealand, who we seek to expel, with a right to have the case reviewed.
Article 13 has no grounds attached to it - the person must simply be allowed to submit the reasons against his or her expulsion and have the case reviewed. It does not apply to persons unlawfully in New Zealand, such as overstayers. It does apply where the legality of the person's stay may be disputed.
It is unclear whether Article 13 requires a second level of decision-making or whether reconsideration by the original decision-maker is sufficient. A prudent approach is proposed - that review by a higher decision-maker, whether departmental or independent, is required.
Appeals on humanitarian grounds
Both options discussed below allow for exceptions to expulsion criteria to be made on humanitarian grounds.
In combination with proposals to streamline liability for expulsion (Section 6), appeals on the facts (above) and proposals to establish an amalgamated appeals authority (Section 8), either option discussed below could significantly reduce the time it takes to expel a person. Either option could create a system that allows for New Zealand to retain control over expulsions, yet remains fair. Either option would create more effective and efficient decision-making processes.
These options do not present changes to the current limitations on appeal for residents whose deportation is ordered on the basis of their being a security threat. Where a person is a security threat, deportation is ordered by the Governor-General on the advice of the Minister of Immigration and the person has no right of appeal, other than judicial review. Likewise, neither option suggests introducing an appeal right for persons turned around at the border (including failed refugee status claimants detained at the border). In all other cases, complaints to the Ombudsmen could be made about departmental decision-making, and judicial review would also be available.
The options present different approaches to recognising the interests at stake, and, at this stage, there is no clearly preferred option.
Option A - Humanitarian appeal for all persons facing expulsion
Under Option A:
- any person liable for expulsion could appeal to an independent authority on humanitarian grounds once only and within a set time (for example, 14 days) of liability for expulsion being upheld at appeal on the facts
- appeals from persons unlawfully in New Zealand would have to be lodged within a set time (for example, 28 days) of becoming unlawful, and
- where a person did not access independent appeal, there would be a departmental assessment of New Zealand's international obligations prior to removal.
Figure 2: Option A - Humanitarian appeal for all persons facing expulsion
Benefits and costs
Option A gives equal opportunity for temporary entrants unlawfully in New Zealand, and residents who commit residence fraud or a serious criminal offence, to have an independent humanitarian assessment prior to deportation. It recognises that, in some cases, temporary entrants will have connections as strong as resident permit holders.
Any person who did not access their right of humanitarian appeal could still have an assessment of international obligations completed by the Department of Labour prior to deportation, as is the current policy. Option A is most similar to the status quo in that it allows for all persons to access an independent humanitarian appeal prior to expulsion within a limited time period.
Option A may encourage non-compliance with immigration requirements by allowing overstayers a more comprehensive humanitarian assessment than that accessible to those who lawfully apply for residence.
How would Option A work in practice?
Under Option A, any person who comes to New Zealand and stays temporarily on a student, work or visitor permit and who overstays, and any resident who becomes liable for expulsion, could access a humanitarian appeal against expulsion - as long as they appeal within the set period of time. Such people may have been in New Zealand for a short period of time, or for many months or even years. They may or may not have family in New Zealand.
Option B - Humanitarian appeal for residents and sponsored temporary entrants
Under Option B:
- unlawful temporary entrants (overstayers and failed refugee status claimants) would have access to an independent humanitarian appeal against expulsion only where the appeal was lodged by a New Zealand sponsor, or where the person had been living lawfully in New Zealand for two years or more at the point they became unlawful
- all residents liable for expulsion would have access to an independent humanitarian appeal, and
- where a person had no access to (or did not access) independent appeal, there would be a departmental assessment of New Zealand's international obligations prior to removal.
As with Option A, appeals would have to be lodged within a set time period.
Figure 3: Option B - Humanitarian appeal for residents and sponsored temporary entrants
Note to Option B
Option B gives different humanitarian appeal rights against expulsion to temporary entrants and residents. This distinction raises the question whether persons who obtained residence status through fraud should be classified as residents or not (for the purpose of the humanitarian appeal). Such people only gained residence status by concealing the truth and have essentially been living in New Zealand unlawfully. As such, they could be treated the same as temporary entrants who have overstayed. Canada deems a person to have been present in Canada unlawfully from the time the fraud was committed (subject to appeal on the facts).
Benefits and costs
This option would allow those with demonstrated New Zealand interests an avenue of independent appeal. It can be seen as parallel to the option discussed in Subsection 7.1 requiring declined residence applicants to have a New Zealand family or employer sponsor in order to access an independent appeal. This option would reduce the number of persons eligible for independent appeal prior to expulsion. It may establish a framework that is more in line with New Zealand's interests as a whole. It may create a system that is more effective and efficient, while maintaining fairness.
7.2 Key questions
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7.2.1 What test should an independent appeal authority apply when considering an appeal against expulsion?
This section considers what the test should be for independent humanitarian appeals against expulsion.
Status quo
There are currently three tests for humanitarian appeals against expulsion (set out in the legislation).
Test 1
- An appeal by an overstayer to the Removal Review Authority may be upheld where: "there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in the circumstances be contrary to the public interest to remain in New Zealand."
Test 2
- A person whose residence permit is revoked (on grounds of fraud or misrepresentation) may appeal to the Deportation Review Tribunal on the grounds that: "it would be unjust or unduly harsh for the person to lose the right to be in New Zealand indefinitely."
- Even if this test is not met, the Deportation Review Tribunal may quash the revocation of the residence permit in any case, as it thinks fit.
Test 3
- A person subject to a deportation order (on grounds of serious criminal offending) may appeal to the Deportation Review Tribunal on the grounds that: "it would be unjust or unduly harsh to deport the person from New Zealand, and that it would not be contrary to the public interest to allow the person to remain."
What works well?
Test 1 is well established as a tight test that requires the humanitarian circumstances to be exceptional and the public interest to be taken into account. Ten to twenty percent of appeals are allowed through this test each year.
What are the problems/opportunities?
In a legal sense, Tests 1 and 3 and very similar. However, both the Deportation Review Tribunal and Ministers have expressed concern that, in practice, Test 3 does not allow for a proper balancing of New Zealand's interests and humanitarian concerns. The problem may be:
- the absence of exceptional circumstances in the test,and/or
- that the legislation does not adequately account for the two sides of the test. The legislation requires a number of factors to be taken into account in determining what would make it unjust or unduly harsh to deport, but is silent on what must be considered in determining the public interest.
Test 2 was designed to create a lower threshold than Test 1 and Test 3. This distinction was made on the basis that a resident whose permit is revoked should have greater rights and interests in remaining in New Zealand than a temporary entrant, or a resident who criminally offends. This idea is contestable, as Test 2 applies only to persons who obtained residence through fraud or misrepresentation and otherwise would be in New Zealand unlawfully. In many cases, their level of offending may be equal to those to whom Test 3 applies. It appears particularly anomalous that under Test 2 the appeal may be allowed in any circumstances that the Deportation Review Tribunal sees fit. This gives the Tribunal highly discretionary powers to override the grounds for expulsion.
This review presents an opportunity to question whether there should be differing tests for unlawful temporary entrants (overstayers), residents who commit fraud, and residents who otherwise seriously criminally offend, and to ensure that the tests are appropriate.
What do other countries do?
None of the countries compared have different tests like New Zealand. As noted above, Australia does not have a statutory humanitarian test at all. Humanitarian exceptions are made purely at the discretion of the Minister of Immigration.
Canada, in addition to the international protection regime discussed in Section 14: New Zealand's role as an international citizen, allows humanitarian access to applicants who can prove they are suffering hardship that is unusual, excessive or undeserved and the result of circumstances beyond their control.
The UK's legislation does not set out a humanitarian test as such, but appeals may be brought on the grounds that the decision was unlawful under the Race Relations Act, Human Rights Act or Refugee Convention.
Proposal
For the reasons discussed above, there is little justification for three separate humanitarian tests against expulsion. The status quo is not considered to meet the objectives of the review, particularly in light of the proposals to streamline expulsion provisions. A single test is proposed, as discussed below.
A single test based on exceptional circumstances weighed up against the public interest
A single, robust test for humanitarian appeals against expulsion would be developed. It would require the humanitarian circumstances to be exceptional, and weighed up against the public interest. The onus would be on the person to justify their continued stay by establishing any exceptional humanitarian circumstances that outweighed the public interest in their expulsion.
What constitutes an "exceptional circumstance" would not be set out in legislation, as this would create a de facto policy. Exceptional circumstances must be assessed on a case-by-case basis, taking into account the particular situation of the individual.
The legislation could be drafted to place greater emphasis on consideration of the seriousness of the crime in cases involving criminal offending. The legislation could also direct how the nature and seriousness of particular crimes are considered. For example, certain types of crimes could be highlighted and rebuttable presumptions set out.
How would the single test work in practice?
Any person who was eligible for an independent humanitarian appeal, whether they were an overstayer, a person who had obtained their residence permit through fraud, or a new resident who committed a serious offence, would be subject to the same humanitarian appeal test. The test would assess:
- whether the person's humanitarian circumstances were exceptional, and
- whether it is contrary to the public interest to allow them to remain in New Zealand.
Additional guidelines would be set out for cases involving serious criminal offenders.
Benefits and costs
This approach would ensure that those who obtain residence through fraud have the same grounds for humanitarian appeal as people who otherwise criminally offend, or remain in New Zealand unlawfully. The additional guidelines to help assess the public interest where the person has criminally offended would help address concerns that serious criminal offenders should not be allowed to stay where this is not in New Zealand's interests.
This proposal would better uphold the proposed purpose of New Zealand's immigration legislation - to regulate the entry, stay and removal of a person in New Zealand's interests. Combined with the proposal to amalgamate the appeals authorities (Section 8), this option would address concerns with the status quo and is the preferred approach.
Alternative options not considered appropriate
Alternative options considered included a) giving the Minister of Immigration power to override the decisions of an independent authority in the case of very serious criminal offenders, and b) preventing serious offenders from appealing in the first instance.
The first alternative would put the Minister of Immigration in a very difficult position, potentially subject to serious criticism. This option would introduce the ability for the Minister to exercise discretion contrary to the interests of the individual in a way that is not provided for elsewhere in immigration legislation.
The second option would create a rigid and potentially arbitrary mechanism in an attempt to better regulate expulsion. Removing an independent appeal right based on a definition of "very serious offending" would mean there was no opportunity for an independent assessment of the actual nature of the offence, the risk the person presents and the circumstances of the offender. These issues should be evaluated on appeal and weighed up against the public interest at that point.
7.2.1 Key question
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