Summary of proposal

The discussion paper proposes that the Minister of Immigration be able to decline an application for a residence or temporary visa based on a recommendation from the New Zealand Security Intelligence Service (NZSIS) that the applicant is not of good character. Under this proposal, the NZSIS would fully disclose the classified security information that formed the basis of the recommendation to the Minister and brief him or her on the recommendation.

The discussion paper indicates that where the Minister decides to decline an application based on the classified security information, the person would be able to seek a review of the NZSIS recommendation by the Inspector-General of Security and Intelligence under the Inspector-General of Intelligence and Security Act 1986. The person would have no right of appeal to the immigration and refugee tribunal, unless the Inspector-General found that the NZSIS recommendation was unfounded and the Minister declined the application for other reasons.

Submitter response

One hundred and twelve submitters responded to one or all of the proposals in section 9. This included 61 submitters responding on behalf of organisations and 51 private individuals. Organisations that made submissions included immigration consultants, refugee and migrant groups, ethnic councils, law societies, community law centres, human rights groups, other community groups, businesses, government agencies, local government and one political party.

Approximately 55 percent of submitters indicated their support for use of classified security information in immigration decision-making. Approximately 35 percent expressed strong opposition and other submitters either were unsure or did not indicate a clear view either way. There was a difference between the views of organisations and individuals: approximately 65 percent of individuals expressed their support for the proposal, whereas approximately 45 percent of the organisations support and approximately 45 percent were opposed to the use of classified security information.

A number of submitters made general comments on the use of classified information, which covered this proposal as well as the proposals discussed in sections 9.2 and 9.3. For the most part, these submitters were opposed to the use of any classified information in immigration or refugee decision-making. The comments made by these submitters are reflected here and discussed further in section 9.4.

Comments of submitters who support the proposal

Those who expressed support for the use of classified security information in immigration decision-making generally did not elaborate on their views. Some submitters expressed qualified support for the proposal. They indicated that the Minister of Immigration should be able to decline a visa application on the basis of classified security information, provided that:

• the Minister receives full information on which to base the decision
• the information is correct
• the information is crucial to the decision and is not publicly available
• the process is transparent, and/or
• the reasons for the application being declined are provided to the applicant.

A number of submitters expressed concerns about the proposed review process, suggesting that a review panel of at least three people would be preferable to review by the Inspector-General of Intelligence and Security alone.

In order for classified security information to be seen to be fairly used, it must come under a robust review process. Review by the Inspector-General of Intelligence and Security is not an adequate safeguard in the use of classified security information. Classified security information used in decision making must be subject to review or appeal by a tribunal made up of no less than three people. The members of the tribunal should include an expert on immigration and an expert on classified information. (Individual submitter)

One submitter suggested establishing a court or tribunal closely allied to the proposed immigration and refugee tribunal to provide for greater transparency and independence of the review process. The submitter proposed that, in cases involving classified security information, the specialist court include the Inspector-General of Intelligence and Security along with the chairperson or deputy of the new immigration and refugee tribunal and another High Court or District Court judge. The submitter recommended the use of a panel of three judges due to the complexity and precedent-setting nature of the cases that will come before it, and that the specialist court/tribunal be established as a court of record to ensure that it has all the powers of a High Court judge.

Other suggestions for improving the review process were:

• enabling or requiring the Inspector-General to interview the applicant in order to gain any information that may be relevant to the applicant's defence, and
• the use of an advocate, who may access the classified security information, to represent the applicant's interests.

Comments of submitters who oppose the proposal

Submitters who oppose the proposal expressed concern that it contravenes a person's right to a fair hearing and the principles of administrative and natural justice. Submitters considered that all information should be disclosed to applicants to enable them to challenge that information.

It is fundamental to a fair system that individuals have the right to respond to potentially prejudicial information. There is no reason to distinguish between potentially prejudicial information, whether classified or unclassified. For this reason, classified information should remain as a "trigger" for the location of open source information only. (New Zealand Law Society)

Without an opportunity to respond to or rebut classified information, there is no possibility of a fair hearing. (Caritas Aotearoa New Zealand)

Some submitters noted a recent High Court ruling that, even in security matters, applicants have a right to a meaningful summary of the classified information and a real opportunity to rebut any prejudicial allegations. One submitter commented that it would be preferable for a "sanitised" version of the entire information to be made available to applicants, with information that identifies individuals omitted.

Submitters also expressed concern about the accuracy of classified information, including classified security information, and the risks associated with using it.

Just because there may be more information in existence doesn't mean that it should be able to be used in immigration processes if it infringes natural justice rights (e.g. current evidentiary rules, BORA, ICCPR), nor does it mean that there will be greater accuracy or appropriateness in the decision if it is used. In fact, classified information is notoriously inaccurate and relying on it will lead inevitably to less accurate decisions. (Human Rights Foundation)

A number of submitters commented on the need to use classified security information in immigration decision-making. Some submitters considered that the discussion paper had not made a compelling case for change. One submitter noted that the NZSIS is able to give a recommendation based on open-source information that can be disclosed to applicants. Others expressed the view that sufficient provisions already exist for dealing with people who pose a security risk to New Zealand, such as Part 4A of the 1987 Act and the Terrorism Suppression Act 2002.

It is submitted that the status quo should remain regarding the use of classified security information in immigration decision-making. If classified security information were not of sufficient weight to warrant the arrest and removal of the individual from New Zealand then one would have to seriously question its relevance to an application for a visa or permit. (Refugee and Immigration Committee, Wellington District Law Society)

Concerns were also raised about the proposed process for reviewing decisions made on the basis of classified security information. A number of submitters expressed the view that the Inspector-General of Intelligence and Security is not sufficiently independent to provide for a fair review. Others considered that it is inadequate for the review to be undertaken by a single person. Concerns were also expressed that the Inspector-General lacks the resources necessary to consider these appeals, which means that there is potential for significant delays in decision-making.

Submitters suggested various alternatives including:

• independent scrutiny by a High Court judge
• review by a panel of independent experts, potentially along the lines of the Special Immigration Appeals Authority in the United Kingdom, and
• review by the Chair or Deputy Chair of the Refugee Status Appeals Authority in combination with a High Court judge.

Some submitters suggested that another important protection for applicants would be the use of security-cleared special counsel to advocate on the applicant's behalf. However, other submitters expressed concerns about the ability of special counsel to play an effective role because they would not be able to disclose the information being used against the applicant. The use of special counsel is discussed further in section 9.2.

Summary of proposals

The discussion paper proposes that the Minister of Immigration be able to use classified information from a source other than the NZSIS to inform a decision on a visa application. The information would only be used where open-source (unclassified) information was not available and the Minister would be briefed by the agency that provided the information.

In such cases, the applicant would be advised that their application had been declined on the basis of classified information that could not be disclosed and would have the right to appeal the decision to the independent immigration and refugee tribunal. Only a member of the tribunal who is a judge could hear the appeal.

The discussion paper indicates that the tribunal could establish a role for "special counsel" who could access the classified information and represent the person.

Submitter response

Approximately half of the submitters who addressed this question expressed their support for the use of classified information, other than classified security information, in immigration decision-making. Approximately 35 percent were opposed to the proposal, while other submitters either were unsure or did not indicate a clear view either way. As with the proposed use of classified security information, there was a difference in response between organisations and individuals: almost 60 percent of individuals supported the proposal compared to approximately 40 percent of organisations.

Comments of submitters who support the proposal

Some submitters expressed unqualified support for this proposal. One submitter commented that decision-makers should have all relevant information at hand in making immigration decisions. Another expressed the view that the cost of any appeal should be met by the applicant.

Other submitters qualified their support, commenting that:

• applicants should be represented by security-cleared special counsel
• applicants should be informed of the information, but not necessarily the source
• applicants should have an opportunity to respond before decisions are made
• the information must be correct, and/or
• extensive consultation is required on this part of the legislation.

Some submitters commented on the proposed review process. As with classified security information (discussed in section 9.1 above), one submitter recommended the use of a panel of three judges in these cases due to the complexity and precedent- setting nature of the cases that will come before it. The submitter suggested that the panel be chaired by the Chairperson of the immigration and refugee tribunal or another District Court judge, with the remainder of the panel being comprised of the Deputy Chairpersons or District Court judges.

I support the proposal to allow classified information that is not classified security information to be used in immigration decisions, but it should be appealed to a team of experts rather than a sole person, with at least one member from the independent immigration and refugee tribunal. Also, while the possibility of judicial challenges to the new procedure is seen as a cost, this type of activity need not be seen as negative. New procedures need to come under a high level of scrutiny in order to become fairer, and clearer. (Individual submitter)

Comments of submitters who oppose the proposal

Submitters who oppose the proposal raised similar concerns to the concerns discussed in relation to the use of classified security information. These submitters generally considered that using classified information without disclosing that information to the applicant would be contrary to the principles of fairness and natural justice. Submitters considered that both the nature of the information and the source of the information should be disclosed to the individual.

It is important that the applicant be provided with the classified information or a full summary of the information. Again, it is important that natural justice and fairness be followed and that New Zealand's international human rights obligations are complied with and not circumvented. (Grey Lynn Neighbourhood Law Office)

Submitters also expressed concerns about the accuracy and reliability of classified information. Some submitters were more strongly opposed to the use of classified (non-security) information than they were to the use of classified security information.

While perhaps there is a rationale for using classified information in narrowly defined security cases, this is not accepted in general immigration matters. The concerns about the potential unreliability of classified information weigh most heavily against its use - especially when the person concerned is unable to test the validity of the information which is being used against them. (Immigration and Refugee law Committee, Auckland District Law Society)

Some submitters considered that the definition of classified information is too wide and would cover information provided by an aggrieved ex-partner or others with a personal grudge against the applicant. One submitter commented that the examples provided in the discussion paper relate to security-based classified information rather than non-security classified information.

Views were also expressed about the proposed process for reviewing the use of classified information in immigration decision-making. One submitter considered that appeals should be heard in the High Court to ensure access to the appropriate level of experience, skill and authority. Others suggested that the review process should involve a panel of at least three experts. One suggested the inclusion of a security-cleared layperson from the refugee community on the immigration and refugee tribunal. Another submitter, on the other hand, expressed the view that there is no place for independent appeal authorities in immigration matters.

A number of submitters commented on the possible role for special counsel. Some submitters considered that the use of special counsel would provide an additional safeguard for applicants and could, depending on the provisions put in place, alleviate their concerns about a perceived lack of natural justice. Some submitters suggested that the process would be more robust if applicants were provided with a summary of the information. One submitter considered that applicants should be offered a choice of security-cleared counsel.

Other submitters expressed the view that special counsel would be unable to adequately represent the applicant because they would not be able to disclose the classified information being used against the applicant. A number of submitters noted that this would be contrary to the Rules of Professional Conduct for Barristers and Solicitors. Some submitters commented that the use of special counsel has not worked well in the United Kingdom and noted that a number of special counsel have publicly resigned there because they felt unable to adequately represent their clients.

Summary of proposals

The discussion paper proposes that a senior refugee/protection officer who has been security-cleared be able to rely on classified information to decide a refugee/protection claim, without disclosing the information to the claimant. The information would only be used where open-source (unclassified) information was not available and the officer could be briefed by the agency that provided the information.

If a decision is made on the basis of classified information, the claimant could appeal to the independent immigration and refugee tribunal. Only a member of the tribunal who is a judge could hear the appeal, and special counsel could be used in the process.

Submitter response

As with the other proposals relating to classified information, there was a mixed response from submitters regarding the use of classified information (security or otherwise) in refugee/protection decision-making. However, the response to this proposal was more even, with just over 45 percent of submitters expressing support for the proposal and approximately 40 percent indicating opposition to the proposal. The difference in response by individuals and organisations was more pronounced for this proposal, with approximately 60 percent of individuals indicating their support compared to only 35 percent of organisations.

Comments of submitters who support the proposal

Submitters made similar comments to this proposal as to the proposal relating to the use of classified (non-security) information in immigration decision-making. Some submitters expressed unqualified support for the proposals. One submitter commented that decision-makers should have all relevant information at hand in order to reach an informed decision. Another expressed the view that the cost of any appeal should be met by the applicant.

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

• applicants must know what information is used so they can respond to any allegations, and/or
• special counsel are required to ensure that refugees have access to a process that is as fair as possible.

Classified information may be used in declining refugee or protection status, BUT applicants must know what information is used in order to answer allegations. This would only be natural justice. (Wellington Chinese Association)

Comments of submitters who oppose the proposal

As with the other proposals in this section, many submitters were strongly opposed to the use of classified information in refugee/protection decision-making. The primary concern expressed by submitters was that the proposal contravenes the right to a fair hearing and the principles of natural justice. Submitters were generally of the view that people seeking refugee status or protection in New Zealand should have the opportunity to see and respond to any information that may be used against them. The United Nations High Commissioner for Refugees (UNHCR) was amongst those opposed to the proposal.

UNHCR is of the view that classified information can be used in refugee status determination (RSD) only if the asylum-seeker is duly informed of it. RSD should be a fair and transparent process which ensures that asylum claims are determined in accordance with natural justice principles, i.e. an applicant should be informed of information being used against him and be given a reasonable opportunity to present his side and/or provide further information or evidence. In asylum systems which are adversarial in nature, due process means that authorities should not rely on or use classified information, otherwise it places asylum-seekers at an unfair disadvantage. (United Nations High Commissioner for Refugees)

Some submitters commented that providing applicants with an opportunity to challenge prejudicial information is particularly important in this context because of the risk of "contaminated" information being provided to New Zealand by the countries from whom claimants are seeking asylum or protection. The risk of returning a person to persecution was identified as another reason for taking particular care to ensure that refugee/protection applicants know of, and can rebut, any allegations made against them. One submitter expressed the view that classified information should only be the starting point for locating open-source information in this context.

The issue as identified suggests that in assessing a person's claim for refugee status classified information can be obtained about the person. Presumably this is obtained from some foreign country. Collecting such information is contrary to the concept of providing safety to the refugee. Such information should not be gathered and should not be used. (New Zealand Law Society)

Some submitters questioned the need for the proposal. One submitter commented that it is already very difficult to meet the legal requirements for refugee status and the use of classified information is an unnecessary additional hurdle for applicants to meet given the quality of the system in place. Another noted that there are already grounds for refusing access to information in the OIA. Comments made in relation to the OIA are discussed further in section 9.4.

A number of submitters expressed the view that, if the proposal is to proceed, a number of protections are required to ensure the applicant is fairly treated. Suggestions included the following:

• providing applicants with a summary of the classified information, or a "sanitised" version of the information that removes identifying information
• giving applicants the opportunity to respond to any prejudicial information
• allowing security-cleared special counsel to advocate on behalf of the applicant
• providing for decisions to be reviewed by a panel rather than a single person, and/or
• enabling applicants to access legal aid.

While some submitters considered that the use of special counsel would be an important safeguard, others expressed reservations about the ability of special counsel to play an effective role. The concerns discussed in section 9.2 were reiterated here.

One submitter suggested the United Kingdom's Special Immigration Appeals Commission as a model for the review process, although noted that the Commission had been subject to some criticism in the United Kingdom. Another commented that judicial challenge of decisions was likely.