Review and appeal of temporary entry and residence decisions

Most submitters did not support the proposal to only provide residence applicants with the right of independent appeal if they are onshore or have a New Zealand sponsor. Over 60 percent of submitters who addressed this issue considered that all residence applicants should have access to independent appeal. They considered that independent appeal is necessary for all applicants in order to ensure that the law is applied correctly, provide for transparent and accountable decision-making, support the principles of fairness and natural justice and provide confidence in the immigration system.

Approximately 70 percent of submitters agreed that, in the normal circumstances, a person should exhaust all formal avenues of appeal before making a request to the Minister of Immigration. However, some submitters considered that flexibility is required in order to respond to individual circumstances, particularly urgent circumstances, and others commented that a legislative response is not necessary to implement this proposal.

Over 70 percent of submitters agreed that the Residence Review Board (or equivalent independent authority) should refer possible exceptions to residence policy back to the Minister of Immigration. A number of submitters considered that the appeal authority should be able make the exception to policy, at least in some cases, without having to refer the case to the Minister. One submitter suggested that the Board also have the authority to allow an appeal or refer a case to the Minister where it is in the interests of a child or the wellbeing of the family.

Appeals against expulsion

Approximately 55 percent of submitters responding to this issue agreed that persons should only have one opportunity to contest liability for expulsion on the facts. However, a number of submitters were of the view that an independent authority should consider appeals on the facts from both temporary and permanent residents, and expressed concern about the Department of Labour fulfilling this role for temporary entrants. Approximately a third of submitters considered that providing only one opportunity to contest liability for expulsion on the facts would be unfair to applicants.

Most submitters considered that all persons liable for expulsion should have access to independent humanitarian appeal: approximately 70 percent of submitters who responded to this issue indicated support for this option. Submitters generally considered that providing all persons with the opportunity for an independent humanitarian appeal is necessary to ensure New Zealand meets its international obligations and protects vulnerable people such as trafficked persons. A number of submitters commented that the appeal right should extend to people unlawfully in the country.

Approximately half the organisations and 75 percent of individual submitters considered that persons who obtain residence through fraud should be treated as overstayers rather than as residents for the purpose of establishing access to humanitarian appeal. A number of submitters commented that overstayers and residents should have the same rights to independent humanitarian appeal.

There was considerable interest in the proposed humanitarian test against expulsion. Most submitters agreed that there be a single test but many submitters, particularly organisations, disagreed with the nature of the test proposed in the discussion paper. They generally commented that it set too high a threshold. A number of submitters opposed the public interest element of the test and considered that the Canadian test that refers to hardship that is "unusual, excessive or undeserved and the result of circumstances beyond their control" would be more appropriate. Others expressed concern that the humanitarian circumstances would need to be exceptional. Some submitters commented that the test should be consistent with New Zealand's international obligations, and that express reference be made to these obligations.

A number of submitters were of the view that there should be different humanitarian tests for residents and for non-residents in recognition of the different interests at stake.

Summary of proposals

The discussion paper proposes that internal review (but no independent appeal) 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.

Continuing to provide all residence applicants with the right to independent appeal, or providing for internal review (but no independent appeal) of all residence decisions are presented as alternative options for residence applicants. Under all options, applicants for temporary entry would continue to be able to seek internal review of decisions if they are onshore.

Submitter response

One hundred and one submitters responded to one or both of these questions. This included 53 submitters responding on behalf of an organisation and 48 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 representatives, the Ombudsmen, the Families Commission and one government agency.

Comments on question one

Most submitters considered that all residence applicants should have access to independent appeal, with just over 60 percent of organisations and individuals favouring this option. Approximately 20 percent of submitters were in favour of onshore applicants and offshore applicants with a New Zealand sponsor having access to independent appeal. Approximately 15 percent of individual submitters were of the view that no residence applicants should have independent appeal rights, and a few submitters considered that only onshore applicants (two submitters) or only sponsored applicants (one submitter) should have access to independent appeal.

Submitters who considered that all residence applicants should have access to independent appeal commented that independent review is necessary to:

• ensure that the law is applied correctly
• provide for transparent and accountable decision-making
• support the principles of fairness and natural justice, and/or
• provide confidence in the immigration system.

It is the role of the judiciary, and in this case the relevant independent authority, to ensure that such decisions made by the government are in fact lawful. This is especially important where the law or policy is opaque, increasing the need for an independent appeal process that is necessarily transparent. (Wellington Community Law Centre)

Review and appeal provide important mechanisms for ensuring that government is held accountable for decisions it makes and the quality of those decisions. It is preferred that all residence applicants should have access to independent appeal because this upholds the principle of the legislation to provide a fair immigration system. (Asia New Zealand Foundation)

A number of submitters commented on the degree of error in initial decision-making and expressed concern about the ability of an internal review process to rectify these errors.

While a system of internal review within the Immigration Service may have some merit my experience in viewing the results of such internal reviews, in several countries, over a period of many years, has been that there are still very many poor decisions made, which are not in accordance with policy, and are only picked up at the time of independent appeal. (Individual submitter)

Submitters who favoured all residence applicants having access to independent appeal considered that there was no reason to distinguish between onshore and offshore applicants, or applicants who do or do not have a New Zealand sponsor. A number of submitters commented that many offshore applicants have the potential to make a significant contribution to New Zealand despite not having a strong existing connection to New Zealand. Others noted that section 27 of the New Zealand Bill of Rights Act 1990 requires all applicants to have access to justice, with one submitter commenting that section 27 does not make a distinction between citizens and non-citizens.

Some participants at the public stakeholder meetings commented on the possible effects of making a distinction between onshore and offshore applications. One commented that restricting independent appeal to onshore applicants could encourage people offshore to travel to New Zealand to lodge their application. Another expressed concern that it could impact on immigration officer decision-making and lead to less consistency among offshore officers (whose decisions would not be subject to appeal).

On the other hand, some submitters expressed concern about the time and cost associated with independent appeals and considered that only those with particular interests at stake should have a right to independent appeal. As noted above, approximately a quarter of submitters favoured onshore applicants and offshore applicants with a New Zealand sponsor having independent appeal, while a small number of submitters considered that only onshore or sponsored applicants should have this right.

Some submitters raised particular concerns about the family members of refugees and noted that a declined residence application is particularly devastating for these people, given limited options for family reunification under current policy settings. They considered it essential that appeal rights are maintained for this group.

Some submitters considered that in some cases access to independent appeal should be provided to applicants for temporary entry. Examples given were work permit applicants and partnership cases.

This point has assumed wider significance as a consequence of the large number of applications under the partnership policy category that are now treated in the first instance as applications for temporary visas and permits. They should be treated in the same manner as on-shore applications for residence. Because of the highly subjective and inconsistent criteria applied in the determination of a 'stable and genuine relationship' it is essential that the right of appeal to an independent authority be preserved in all cases involving a New Zealand resident or citizen as a sponsor, or partner, whether such cases involve applications for temporary or permanent permits. (Refugee and Immigration Committee, Wellington District Law Society)

One submitter commented that temporary entrants should be able to access internal review if their permit is valid at the time they lodge their application for a further permit. One submitter commented that it is essential that all review and appeal rights are set out in the legislation.

Comments on question two

Approximately 70 percent of submitters who addressed this issue agreed that, in the normal circumstances, a person should exhaust all formal avenues of appeal before making a request to the Minister of Immigration. Many submitters expressed qualified support for the proposal, commenting that:

• there needs to be flexibility to enable people to approach the Minister directly in exceptional cases, particularly where time is of the essence
• the Minister of Immigration should retain the ability to intervene in cases, and/or
• applicants need to be better informed about what formal avenues of appeal exist.

The NZAMI agrees that it is desirable that, in normal circumstances, a person should exhaust all formal avenues of appeal before making a request to the Minister of Immigration. However, under the present system there are such lengthy delays in exercising avenues of appeal that denying access to the Minister is unfair and undesirable. (New Zealand Association for Migration and Investment)

Submitters who oppose the proposal raised similar concerns, expressing the view that flexibility is required to respond to individual circumstances.

A number of submitters commented that a legislative response is not necessary to implement this proposal. Some submitters commented that a legislative restriction on approaching the Minister before exhausting all other appeal avenues would not be desirable in some cases.

Managing Ministerial workload and correspondence is a matter for policy, not legislation. The Minister currently does not consider appeals until all other avenues have been exhausted; communicating this to communities does not demand a legislative response. This proposal runs contrary to the purpose of the Act as framework legislation. (Individual submitter)

We have no objection to there being a policy that in normal circumstances the Minister intervenes only after all formal avenues of appeal have been exhausted. However, we are concerned that if the Immigration Act was amended to restrict the current right of applicants to request the intervention of the Minister at any time, this could cause unnecessary hardship for applicants who require the intervention of the Minister because of urgent circumstances. (Waitakere Community Law Service)

Other comments made by submitters were as follows:

• having an immigration commissioner would reduce the number of cases that need to be considered by the Minister
• the Minister should delegate decision-making to those with professional expertise
• greater clarity is required around what is meant by having "exhausted" all formal avenues of appeal, and
• not all applicants can afford the expense of a formal appeal.

Summary of proposal

The discussion paper proposes that the Residence Review Board (or equivalent independent authority) continue to have the power to reverse an incorrect decision, refer a decision back to the Department of Labour for reconsideration if due process has not been followed or recommend consideration by the Minister of Immigration as an exception to policy.

Submitter response

Seventy eight submitters responded to this question: 35 submitters responded on behalf of an organisation and 43 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, the Families Commission and one government agency.

Over seventy percent of submitters agreed that the Residence Review Board (or equivalent independent authority) should refer possible exceptions to residence policy back to the Minister of Immigration. Most submitters did not elaborate on their views. One submitter suggested that the Board also have the authority to allow an appeal or refer a case to the Minister where it is in the interests of a child or the wellbeing of the family.

It may be appropriate for the appeal body to recommend a course of action to the Minister, where a determination is made that the decision is contrary to the best interests of the child or where the wellbeing of the family will be severely impacted. We also support the Canadian example provided in the discussion paper where the appeal body may allow an appeal where it is in the best interests of a child - thus extending the groups upon the appeal may be made. This is consistent with the spirit and intent of UNCROC. We also support extending this criterion to include the wellbeing of the family. (Families Commission)

Most submitters who oppose the proposal considered that the appeal authority should be able to make an exception to policy without referring the case back to the Minister. One submitter commented that this would reduce the workload of the Minister and expedite outcomes for applicants. Another commented that the Minister may, however, wish to retain discretion in some instances and could communicate that to the appeal authority.

If the review board can see fit to make exception to policy, the Minister usually accepts the recommendation. There is no need to refer the matter back to the Minister. It is time and labour saving to enable the board to grant such exceptions. (New Zealand Chinese Association (Auckland Branch) Inc)

Summary of proposals

The discussion paper proposes that a person be allowed only one appeal on the facts, whether this be to the Department of Labour, an independent appeal authority or the courts.

The discussion paper presents two options for appeals on humanitarian grounds:

1. Enable any person liable for expulsion to appeal to an independent authority on humanitarian grounds, or
2. Enable all residents liable for expulsion to access independent humanitarian appeal as well as temporary entrants who had been living lawfully in New Zealand for two years or more at the point they become unlawful, or whose appeal is lodged by a New Zealand sponsor.

Under either option, an appeal to an independent authority could only be made once and would need to be made within a prescribed timeframe. There would be a departmental assessment of New Zealand's international obligations prior to expulsion for those who may not or do not access independent humanitarian appeal.

Submitter response

Ninety four submitters responded to one or more of these questions. These included 43 submitters responding on behalf of an organisation and 51 private individuals. Organisations that made submissions included immigration consultants, ethnic councils, refugee and migrant groups, law societies, community law centres, human rights groups, other community groups, businesses and the Families Commission.

Comments on question one

Approximately 55 percent of submitters who addressed this question agreed that persons should only have one opportunity to contest liability for expulsion on the facts. Some submitters made reference to the cost of multiple appeals. One submitter commented that any appeals should be at the person's own expense.

To do otherwise only plays into the hands of those who would make an industry of appeals. It also very unfairly drags out the removing of the person, usually at quite a considerable cost to the taxpayer. (Individual submitter)

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

• the appeal should be heard by a competent authority
• there should be greater clarity around how facts are identified and allowance for changes in the facts
• this should include cases in which poor processes have had a bearing on the facts
• appellants should have full access to the facts, be represented and have a reasonable time to prepare
• legal aid should be available in appropriate cases, and/or
• the person should have the right to appear before the authority.

A number of submitters expressed the view that an independent authority should consider appeals on the facts from both temporary and permanent residents. They did not consider it appropriate for the Department of Labour to fulfil this role in the case of temporary entrants.

The Committee agrees that there should be a single opportunity to appeal liability for expulsion on the facts, provided this is an independent appeal. There is a concern that the review envisages some departmental findings of fact being open only to internal review by the Department. (Immigration and Refugee Law committee, Auckland District Law Society)

One submitter considered that review should be allowed on both the facts and the law.

The legal overview will be required particularly to ensure the planned compliance with various provisions of the ICCPR, CAT and UNCROC. The decision to expel will need to take into account New Zealand's domestic law in this regard but also should endeavour to give consistency in the interpretation of international obligations. (Individual submitter)

Approximately 35 percent of submitters opposed the proposal to provide only one opportunity to contest liability for expulsion on the facts. Submitters considered that this would be unfair to applicants and that greater flexibility is required to provide for individual circumstances.

Circumstances change and other mitigating factors need to be taken into account. (Penina Health Trust)

Reducing avenues for appeal reduces fairness to the individual in favour of convenience for officials, which does not necessarily result in either efficient or effective processes. (Individual submitter)

Comments on question two

Many submitters considered that all persons liable for expulsion should have access to independent humanitarian appeal. Approximately 70 percent of all submitters who responded to the issue indicated support for this option. The level of support was higher among organisations than individuals: approximately 80 percent of organisations were of the view that all persons should be able to access independent humanitarian appeal compared to around 60 percent of individuals.

These submitters generally considered that providing all persons with access to independent humanitarian appeal is necessary to ensure New Zealand meets its international obligations and protects vulnerable people such as trafficked persons. Some submitters also commented on the need to maintain New Zealand's reputation for fairness.

The nature of humanitarian appeals is such that there are wide ranging and often unforeseen circumstances which could apply to any person in New Zealand that is being threatened with expulsion. On this basis it concerns us that any people were excluded from being able to access an appeal on humanitarian grounds this could result in a breach of New Zealand's obligations under international conventions. (Waitakere Community Law Service)

Presumably we do not want to be seen as a soft target and that our borders will be protected. On the other hand, does New Zealand want to be seen as providing a fair and transparent system when dealing with people whatever their status. (Individual submitter)

One submitter commented that narrowing appeal rights would be likely to result in increased numbers of applications for judicial review and/or requests to the Minister.

A number of submitters commented on the current lack of an appeal right for people unlawfully in the country and expressed the view that they should also have access to independent humanitarian appeal. The Auckland Refugee Council proposed that asylum seekers who are not issued with a work permit be granted a limited purpose permit, and that this permit provide permission to work and "a carefully restricted right to appeal against removal, with the leave of the Removal Review Authority".

Some submitters also commented on the procedural safeguards that should be in place for applicants. One submitter commented that people should have adequate time to prepare their case. Another expressed the view that people should be able to make personal representations and not have to rely on a lawyer or immigration consultant.

One submitter expressed the view that any person who has lodged an appeal against removal should be issued with a visa to allow them to continue working or studying until the appeal is decided.

Almost 30 percent of individual submitters were of the view that independent humanitarian appeal should only be available to residents and sponsored temporary entrants. Approximately 15 percent of organisations indicated support for this option. Most of these submitters did not elaborate on their views. Those who did generally commented on the need to shorten the appeals process. One submitter commented that the objective is to enhance existing communities and not take on the cases of individuals who do not have any connection to these communities.

One individual submitter expressed the view that no-one should have access to independent humanitarian appeal. Some participants at the public stakeholder meetings considered that some form of vetting of appeals is required to reduce the number of frivolous appeals.

Comments on question three

Approximately half the organisations and 75 percent of individual submitters considered that persons who obtain residence through fraud should be treated as overstayers for the purpose of establishing access to humanitarian appeals. Approximately a quarter of organisations and 10 percent of individuals considered that persons who obtain residence through fraud should be treated as residents.

Some submitters expressed the view that treating people who obtain residence through fraud as overstayers was the logical consequence of their actions. A number of these submitters also emphasised the seriousness with which fraud should be treated.

As overstayers they would not have been granted residency without the criminal act of fraud. Therefore they are technically overstayers, not residents and should be treated as such. (Individual submitter)

The New Zealand Association for Migration and Investment, on the other hand, argued that it is necessary to treat such people as residents in order to recognise the seriousness of the offence.

Obtaining residence by fraud should be recognised as a serious offence and appropriate weight must be given. The nature of the fraud may affect the public interest consideration and that could not be adequately recognised if perpetrators were automatically treated as overstayers. (New Zealand Association of Migration and Investment)

Other submitters commented that individual circumstances need be taken into account because a person may not have been aware of the fraud.

Some persons who will have obtained residence through fraud will have done so because they have been trafficked, and have had very little control over the migration process. There are also issues for women experiencing domestic violence, who may not have been in control of, or had any idea about, how their residency applications have been made. (National Collective of Independent Women's Refuges)

Some submitters felt that the issue is not relevant given their view that all persons should have access to independent humanitarian appeal. They considered that overstayers and residents should be treated on the same basis. One submitter commented that the issue only arises if there are different humanitarian tests for residents and overstayers. This issue is discussed in 7.2.1 below.

Summary of proposal

The discussion paper proposes the development of a single test for independent humanitarian appeals against expulsion that 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.

Submitter response

Eighty five submitters responded to this question: 39 submitters responded on behalf of organisations 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, human rights groups, other community groups, businesses, the United Nations High Commissioner for Refugees, a territorial authority, the Families Commission and one political party.

There was a marked difference in response between individuals and organisations. Approximately 80 percent of individual submitters agreed that there should be a single humanitarian test against expulsion as proposed in the discussion paper. Just under half the organisations supported the proposal and approximately 35 percent were opposed to the single humanitarian test proposed.

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

• there needs to be safeguards such as in Canada
• refugee matters should be treated separately
• it needs to be fair
• weight should be placed on the benefits to New Zealand of keeping people with strong family bonds here, and/or
• the public interest should be paramount.

One submitter proposed specifying what the public interest is, and suggested that appellants be required to demonstrate that they can support themselves and their family and make a positive contribution to New Zealand. The submitter also expressed the view that the test should require that the exceptional humanitarian circumstances may only be resolved by remaining in New Zealand.

Many submitters that opposed the proposal expressed support for having a single humanitarian test against expulsion but did not agree with the nature of the humanitarian test proposed. These submitters generally considered that the test set too high a threshold for appellants.

Some submitters opposed the public interest element of the test. A number of submitters considered that a test that refers to circumstances beyond the individual's control, along the lines of the Canadian approach, would be preferable.

The proposal places a significant burden on the applicant to demonstrate not only the exceptional circumstances, but the interface of those circumstances with New Zealand's public interest. This is a significant departure from the test currently employed by the Removal Review Authority. It could be argued that the creation of this reverse onus provision contravenes the principle of natural justice articulated in s.27 of the NZBORA by placing an unfair, and perhaps insurmountable burden. (Federation of Islamic Associations of New Zealand)

To appeal a decision on humanitarian grounds the applicant will need to demonstrate exceptional circumstances and that those circumstances outweigh the public interest in expulsion. A test similar to that used in Canada - which allows humanitarian access to people who can prove that they are suffering hardship that is "unusual, excessive or undeserved and the result of circumstances beyond their control" - would be more appropriate. (Human Rights Commission)

This is a higher threshold than currently employed. The onus of a public interest test should lie with the Crown to show that there are public interests that outweigh the interests of an applicant, more in line with the test employed by Canada. (Wellington Community Law Centre)

Other submitters expressed concern that the humanitarian circumstances would need to be exceptional. These submitters suggested changing the wording to "humanitarian circumstances" or "special humanitarian circumstances", while retaining the public interest element of the test.

This strikes a better balance and more clearly reflects the many reasons why applicants may appropriately be permitted to remain in the country. The concept of "special circumstances" already exists in s18D(1)(f) of the current Act. (New Zealand Law Society)

Some submitters commented that the test should be consistent with New Zealand's international obligations, with one submitter suggesting a move away from an exceptional circumstances approach.

It is also essential that New Zealand's humanitarian test is consistent with New Zealand's international human rights obligations and that the test complies with international human rights instruments to which New Zealand is a signatory. In particular, the International Covenant on Civil and Political Rights and the Convention of the Rights of the Child. We submit that these international human rights instruments be incorporated in the legislation as schedules. (Grey Lynn Neighbourhood Law Office)

While the "exceptional circumstances weighed against the public interest" is a pragmatic and established test in New Zealand I question whether it is actually necessary at all and suggest that domestic and international obligations in reaching and reviewing expulsion decisions could be adequately, and more satisfactorily, covered by a requirement to refer to internationally applied proportionality or balancing tests used to determine whether a country is meeting its international obligations under such treaties. (There is extensive international and European jurisprudence on this topic which could be a useful source of guidance and assistance to New Zealand decision makers.) Thus, in the New Zealand situation, a decision maker or judge reviewing an expulsion decision would be required to take into account all relevant issues and would place emphasis on ascertaining whether there had been compliance with the provisions of the Refugee Convention, CAT, Articles 6,7,23 and 24 of the ICCPR, relevant provisions in UNCROC, and in addition, recognizing domestic immigration policies and the "closeness" or otherwise of an appellant to those validly constituted immigration policies.

This approach would allow New Zealand to benefit from international jurisprudence on the subject rather than relying on the overtones of domestic "humanitarian policies" which, over time, could be far more variable, subjective and inconsistent in their application. It will achieve better clarity and less incentive to those wishing to abuse the system and those who may seek to delay or extend their overstaying in the hope of manufacturing a "humanitarian claim". (Individual submitter)

A number of submitters considered that there should be different humanitarian tests for residents and for non-residents in recognition of the different interests at stake. One submitter suggested that residents should only be required to demonstrate to "humanitarian circumstances" and non-residents should be required to demonstrate "exceptional humanitarian circumstances". One submitter considered that the appeals body should have discretion to allow appeals that are deserving but would not otherwise meet the test.

One submitter expressed the view that legal aid should be available in some cases and that people should have the right to appear before the tribunal. The submitter commented that "these safeguards are fundamental to a meaningful right of appeal and will pay for themselves in reduced Ministerial appeals and applications for judicial review."^[1]