Summary of proposals

The discussion paper proposes that the legislation enable the Minister of Immigration to delegate his or her power to approve an application as an exception to residence policy to selected senior immigration officials. Guidelines for when the Department of Labour could make exceptions to residence policy would be agreed with the Minister of Immigration.

The discussion paper indicates that administrative improvements could also be made to limit the volume and nature of personal representations considered by the Minister of Immigration.

Submitter response

One hundred and seven submitters responded to this question: 61 submitters responded on behalf of an organisation and 46 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, law societies, community law centres, other community groups, businesses, business and industry representatives, a territorial authority, government agencies and the Ombudsmen.

Approximately 65 percent of submitters that addressed this issue considered that the power to make positive exceptions to residence policy should be delegated to selected senior immigration officials. A number of submitters commented that the proposal would enable exceptions to be made more quickly.

We believe that decisions relating to exceptions to policy where this would clearly benefit New Zealand should be made without unnecessary delay. For that reason we would support enabling delegated senior immigration officials to make positive exceptions to residence policy. (Institute of Professional Engineers New Zealand)

Many submitters expressed qualified support for the proposal, emphasising the need for:

• consistency in decision-making
• transparency in the process used to determine whether an exception will be made
• accountability for decisions, and
• ability to appeal or seek review of decisions.

A number of submitters commented that decision-making guidelines should be publicly available and that immigration officers should be required to provide reasons for decisions. Submitters considered that these requirements would be essential to provide for consistency and transparency of decision-making, and to enable decisions to be reviewed. Some submitters considered that immigration officials should also have an obligation to consider an exception to policy.

In my view, for the system to have fairness and integrity at least brief reasoning should be given for both positive and negative decisions. It will not be difficult in this situation, given that ministerial guidelines will be provided to officers and they will have full knowledge of Government Residence policy and other past precedents. (Individual submitter)

The obligations to consider exceptions to policy and to give reasons for not approving an exception would not remove flexibility and discretion, but simply make transparent the reasons for exercising these principles in a given case, thus maintaining the essential elements of fairness and natural justice. (New Zealand Law Society)

If officials are given the power to make such decisions without restrictions, there is a risk that their actions may be perceived as being arbitrary, capricious or corrupt. There is also a risk that they may be perceived as being motivated by bias or some form of discrimination. (New Zealand Association for Migration and Investment)

Other suggestions were that two officials be required to approve an application as an exception to policy, and that exceptions be considered by a specially trained team. Some submitters considered that there should be internal monitoring and review of such decisions; others considered that applicants should be able to seek independent review.

A number of submitters commented on the situations in which senior immigration officials might approve an application as an exception to policy. Most of these submitters made reference to the applicant having skills sought by employers. Some submitters commented that other factors such as family stability could also constitute a benefit to New Zealand. One submitter expressed the view that senior officials should only be permitted to make exceptions in the Skills/Business stream.

Many submitters commented that the Minister of Immigration should retain a residual discretion to make exceptions to policy and that applicants should continue to be able to approach the Minister directly. Some submitters considered that the Minister should be involved in decision-making only as an avenue of last resort; others considered that applicants should be able to seek Ministerial intervention at any time. One submitter suggested that all Ministerial appeals should be made via a Member of Parliament.

Some submitters expressed concern about large numbers of cases being considered by the Minister because of the lack of transparency about how decisions are made. One submitter suggested that the Minister be required to report to Parliament each year on the use of Ministerial discretion, including reasons for the exceptions made.

Approximately 20 percent of organisations and a third of individual submitters did not support the delegation of the power to make exceptions to residence policy to senior immigration officials. These submitters expressed concerns about a lack of transparency about how decisions are made, inconsistency of decision-making, reduced accountability and a risk of bias and discrimination. Some submitters commented that communities do not trust immigration officials to make fair decisions. A number of submitters commented that the Minister of Immigration is accountable to the electorate for his or her decisions, unlike officials.

The Forum is aware that delegating responsibility to senior officials would reduce the Minister's workload and could lead to more immediate decisions being made. However, this streamlining could reduce the transparency of the process as well as reducing the responsibility and accountability that should be associated with decisions of this type. (Road Transport Forum New Zealand)

Increasing delegation to immigration officials is problematic considering the perception from constituents that unfair decisions are often made. The credibility of the system would need to considerably improve before this could become a viable option. (Asia New Zealand Foundation)

A number of business and industry representatives commented that people who appeal to the Minister should not get any special treatment or advantage over those who follow normal immigration procedures.

Business New Zealand does not consider that direct appeals to the Minister should receive any special treatment. Appellants should not be penalised for following the proper process. (Business New Zealand)

One individual submitter expressed the view that there should be no exceptions to policy at all.

Not all submitters expressed a clear preference for or against the proposal. These submitters generally commented on the need for transparency and consistency of decision-making and the various safeguards proposed by submitters who support the proposal. Some submitters commented that senior immigration officials need to be properly resourced and trained. One submitter expressed the view that specific training should be provided around questions of disability and it should be a guiding principle that decisions are consistent with the New Zealand Disability Strategy. The Ombudsmen noted that the proposal could lead to increased complaints to the Ombudsmen.

Summary of proposals

The discussion paper presents two options for consideration:

1. Give potentially prejudicial information and reasons for decisions to onshore applicants only, with the exception of classified information, or
2. Give potentially prejudicial information and reasons for decisions to onshore and offshore applicants, with the exception of classified information.

The discussion paper indicates that, under both options, onshore applicants declined on the basis of classified information would have an avenue to have the decision reviewed. This is discussed further in section 9 on the use of classified information.

Submitter response

One hundred and seven submitters responded to one or both of these questions: 55 submitters responded on behalf of an organisation and 52 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, a territorial authority, government agencies, the Ombudsmen and one political party.

Comments on question one

There was strong support for decision-makers being required to provide potentially prejudicial information and reasons for their decisions to both onshore and offshore applicants. Approximately 75 percent of organisations and almost 90 percent of individual submitters indicated support for this option. Approximately 10 percent of submitters considered that potentially prejudicial information and reasons for decisions should only be provided to onshore applicants. One submitter expressed the view that this information should be provided to onshore applicants and onshore applicants who have an identifiable connection to New Zealand (such as having family here).

Most submitters were strongly of the view that it is in the interests of fairness and natural justice to provide all applicants with potentially prejudicial information and reasons for decisions. Submitters commented that there is no justification for distinguishing between onshore and offshore applicants. Some submitters disagreed that onshore applicants are more likely to have a connection to New Zealand, noting that many offshore applicants have family, property or business interests here.

We note that the current practice is for reasons to be given for decline decisions to all applicants, including offshore applicants "in the interests of the administrative law principles of fairness and natural justice". We believe that these principles are fundamental to a fair and just society which upholds the rule of law and strongly oppose any departure from these principles. (Waitakere Community Law Centre)

TANI believes that potentially prejudicial information and reasons for decisions should be given to both on-shore and off-shore applicants. Given the importance of fairness and transparency, discriminating between the two groups does not seem appropriate. (The Asian Network Inc)

Some submitters commented that providing potentially prejudicial information to applicants enables this information to be challenged and any flaws in the initial application to be easily corrected. Some submitters considered that this is particularly important in the case of offshore applications where there is greater potential for inaccurate or malicious information and/or subjective decision-making.

In offshore decision-making, as much if not more than in on-shore decision-making, there exists the potential for decisions to be made based upon unfounded and/or flawed suspicions which are subjective in nature. Unless applicants are given sufficient opportunity to address such suspicions, there is no way of ensuring a just and accountable system. (New Zealand Law Society)

Some submitters commented that providing reasons for decisions would provide transparency and consistency of decision-making, and help applicants to decide on the merits of pursuing a further application.

A number of submitters expressed the view that failure to provide some applicants with potentially prejudicial information and reasons for decisions could give rise to a perception that New Zealand's immigration system is arbitrary and unfair. Submitters commented that this could undermine New Zealand's efforts to attract potential migrants. One submitter commented that the administrative costs associated with providing applicants with potentially prejudicial information and reasons for decisions are outweighed by the benefits of being seen to be fair.

The strong global reputation that New Zealand's administrative system enjoys, rests on the fairness of its practises. Reducing that level of fairness would be out of step with the stated aims of the Act to attract high quality and consistent levels of immigration. (Individual submitter)

The Ombudsmen raised practical difficulties with the option of only providing information to onshore applicants, noting that the Official Information Act 1982 (the OIA) would enable a person in New Zealand to obtain information relating to an overseas applicant on their behalf.

Quite apart from questions of natural justice that this raises regarding distinctions based on the location of an applicant, it is unclear how these proposals are seen to be compatible with the operation of the Official Information Act 1982 (or, in due course, the Privacy Act 1993, which we understand is to be amended so as to apply to all individuals wherever they may be). As you will be aware, official information requests may be made by anyone in New Zealand. Consequently, the professional adviser of an overseas applicant may request relevant information about a client to enable advice to be given. (Office of the Ombudsmen)

A participant at a public stakeholder meeting commented that limiting the provision of potentially prejudicial information to onshore applicants could act as a disincentive for people unlawfully in New Zealand to move offshore to regularise their status.

Some submitters considered that information should be withheld in cases involving national security. One submitter commented that disclosure of information should not compromise the safety and integrity of others and gave the example of a third party reporting on a person who is in New Zealand unlawfully.

Comments on question two

There was not a high level of support for declining an application on the basis of classified information without disclosing that information to the applicant. Just over 20 percent of the submitters who addressed this issue indicated support for this approach. One submitter commented that New Zealand's interests should always take precedence over an applicant's interests. Other submitters expressed qualified support for the proposal, commenting that:

• classified information needs to be well-defined
• the proposal should only apply to classified security information
• the classified information and the source of the information must be reliable
• information should only be withheld where disclosure would be detrimental to the safety of the people providing the information, and/or
• there should be appropriate safeguards including the right to appeal a decision, controls on the acquisition, use and storage of classified information and provision of the information to the applicant's legal representative.

Approximately two thirds of submitters were opposed to the use of classified information to decline an application without disclosing that information to the applicant. Submitters considered that the proposal is contrary to the principles of natural justice and the right to a fair hearing. A number of submitters suggested that the proposal would be inconsistent with section 27 of the New Zealand Bill of Rights Act 1990. Submitters commented that applicants are entitled to know all of the information held against them and to test the reliability of that information. Some submitters considered that the proposal would reduce confidence in the immigration system.

This is contrary to the principles of natural justice and the right to a fair hearing. It also weakens the integrity of information used in decision-making, and trust in immigration systems. (Individual submitter)

Making decisions on the basis of secret information with no disclosure is inimical to the standards our society claims to represent. (Individual submitter)

Migrants are entitled to know why their application has been rejected, even if it is classified information. (Tauranga Regional Ethnic Council)

Some submitters considered that applicants should be provided with the classified information but not the source of the information. Other submitters commented that applicants should at least receive a summary of the classified information. One submitter suggested that classified information be disclosed to an applicant subject to confidentiality requirements.

Some submitters commented that the legislation should not attempt to restrict the availability of information under the OIA and the Privacy Act 1993 (the Privacy Act). The Ombudsmen noted that "the concept of restricting the availability of information on the basis of 'class' is inconsistent with the purposes of the OIA."

Submitter views on the use of classified information in immigration decision-making are discussed further in section 9, which summarises comments on the more detailed proposals set out in section 9 of the discussion paper.

Summary of proposals

The discussion paper proposes that new immigration legislation enable decisions to be made electronically. This would be an enabling provision for the future rather than a mechanism to be implemented immediately. The discussion paper notes that, in practice, the use of electronic decision-making would be restricted to low-risk application types and any decision to decline a decision would be referred to an immigration officer.

The discussion paper also presents the possibility of enabling decision-making by third parties (such as education providers and employers) in the future.

Submitter response

One hundred and seven submitters responded to one or both of these questions: 60 submitters responded on behalf of an organisation and 47 submitters responded as private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, human rights groups, law societies, community law centres, other community groups, businesses, business and industry representatives, union representatives, airline representatives, education sector representatives, a territorial authority, government agencies, the Ombudsmen and one political party.

Comments on question one

Approximately 75 percent of organisations and just over half the individual submitters that addressed this question agreed that the legislation should enable decisions to be made electronically in the future. A number of submitters commented that New Zealand needs to move with the times and make use of technologies that can help streamline application processes. Airline representatives noted that Australia is introducing automated border processing.

Some submitters expressed qualified support for the proposal, commenting that:

• only positive decisions should be made this way
• it should only be used for low-risk applications and/or low-risk countries
• the right technology is required
• fairness and transparency should be maintained
• the quality of decision-making should not be compromised
• New Zealand's international obligations need to be respected
• there should be careful monitoring and review of decisions, and/or
• there should be an avenue for personal representations.

For low risk cases, e.g. student visa renewals. We need to up to date by using technology of this day and age. (Individual submitter)

So long as there are easy appeal options or the ability to move from electronic application to dealing with a immigration officer if it appears the application is not appropriate for an electronic assessment or there is something unusual in the application. (Individual submitter)

TANI agrees that provision should be made to "future-proof" the legislation and to consider how electronic technologies might hasten the process. However, it is imperative safeguards are implemented in any use of such technologies to ensure that fairness and transparency are preserved and that human rights requirements are respected. (The Asian Network Inc)

Approximately 15 percent of organisations and 35 percent of individual submitters were opposed to the proposal. Submitters expressed concerns about the potential for error, the possibility that not all information would be taken into account, the lack of accountability for decisions and the impersonal nature of electronic decision-making. Most of these submitters considered that an immigration officer needs to be involved in making the final decision.

Allowing for decisions to be made electronically increases the risk of errors being made and not all relevant information being taken into account. We submit that all immigration decisions should be made by real people to ensure transparency, consistency and accountability and so that positive exceptions to policy may be made where appropriate. (Waitakere Community Law Centre)

Identifiable human decision makers are essential to ensure the accountability of the system. (Individual submitter)

One submitter considered that electronic decision-making would favour applicants from some countries and commented that there should be one process for all applicants. Some submitters expressed concern that electronic decision-making may make it easier for people to enter New Zealand to undertake illegal activities.

Comments on question two

The submitter response to the possibility of third party decision-making was mixed. Of the organisations that addressed this question, approximately 45 percent expressed support for the legislation enabling some decisions to be made by third parties and approximately 45 percent expressed opposition. Of the individual submitters that responded, approximately 35 percent indicated support and just over half were opposed to the legislation enabling third party decision-making.

Business and employer representatives were among those who indicated support for this option. A number of submitters noted its potential to benefit employers through timely decisions and improved ability to secure skilled workers.

There would be flow-on benefits to third parties if immigration decisions could be made more quickly, as attracting and recruiting highly sought after talent requires such responsiveness. (New Zealand Retailers Association)

Education New Zealand and Business New Zealand both expressed strong support for enabling some decisions to be made by third parties.

Business New Zealand supports wholeheartedly the development of this proposal. Employers could choose to participate and in return would have to meet accreditation and accountability requirements. We believe many businesses would enthusiastically join such a scheme. Indeed, organizations such as the Employers and Manufacturers Association (Northern) have been calling for something similar for a number of years. (Business New Zealand)

Education New Zealand strongly supports this proposal. If implemented this proposal would match a scheme that the Australian Department of Immigration introduced several years ago of "Pre-Qualified Institutions". Our understanding is that this scheme has worked well, and there is little reason why responsible educational institutions in New Zealand cannot enjoy the same level of trust/responsibility from the NZ Department of Labour. (Education New Zealand)

Other submitters expressed more cautious support for the proposal, commenting on the need for robust accreditation criteria to ensure that third parties have the integrity and capability to make immigration decisions consistent with immigration policy requirements. Submitters also commented on the need for strict monitoring and audit requirements to ensure that third parties are held accountable for their decisions. Some submitters commented that care would need to be taken that these processes did not become so onerous that they outweigh the benefits of enabling third parties to make immigration decisions.

The process would presumably need to be introduced with careful management and monitoring, and substantial training for relevant third parties, which if not balanced correctly will make the overall task of obtaining Talent visas for companies the same or more onerous than the current requirements. For example, if the monitoring and/or auditing requirements are so involved and resource-intensive for employers, then they may choose to take the current option, i.e. having an INZ officer make the decision. (Fragomen New Zealand)

Some submitters commented that small businesses would be unlikely to meet accreditation requirements. One submitter suggested that industry or employer groups could be accredited to make decisions on their behalf.

Submitters who oppose the proposal expressed concern that third parties would further their own interests without due regard to the wider national interest. A number of submitters commented on the potential for abuse and expressed concerns about being able to hold third parties to account for their decisions.

Border control is a sovereign power to be exercised by the Government. Such a power should not be delegated to non-government third parties. Were this to occur, there is a risk that third parties would seek to benefit themselves or others without due regard to the national interest, and without the same constraints and accountabilities applied through legislation to immigration officers. (New Zealand Law Society)

These third parties may not be as accountable to the public as the government agencies. Such decision making ability may encourage them to misuse, over-use and/or abuse the legislation. (Bangladesh New Zealand Friendship Society)

Some submitters expressed concerns that third parties would not comply with human rights requirements and the principles of administrative justice and fairness. Some submitters considered that it would be difficult to effectively monitor the decisions being made, with a number commenting that the additional audit costs would outweigh any advantages of third party decision-making.

Some submitters considered that there is no need for the legislation to enable third parties to make immigration decisions given that the Department of Labour has no immediate plans to implement third party decision-making.

A number of submitters commented that third parties should be able to contribute to immigration decisions by providing a recommendation or advice, but considered that the actual decision-making should be retained by the Minister of Immigration and delegated officials. Some submitters commented that improvements to decision-making processes can be achieved in other ways.

Problems with efficiency and timeliness of decision-making ought to be addressed by applying more resource to the making of immigration decisions, not by abdicating the role to third parties. (New Zealand Association for Migration and Investment)

Some submitters did not indicate a clear preference for or against the legislation enabling third parties to make immigration decisions. These submitters noted the risks associated with third party decision-making and commented on the need for robust accreditation and accountability requirements. The Ombudsmen noted that "accountability for immigration decisions should be the same, irrespective of whether the decision-maker is an official or a third party."