Saturday, April 22, 2006

Immigration Act Review I: Decision-making

This is the first post in what will hopefully become a series about the government's Immigration Act Review Discussion paper [PDF]. The review aims to rewrite the Act from the ground up so it is clear and easy to understand, complies with our international obligations, and has "fair, firm, and fast" decision-making processes. However, the emphasis seems very much on the "firm" and "fast" at the expense of fairness, to the extent that the review has been called a power-grab by officials aimed at reducing accountability and oversight of their decisions. Excellent blog-fodder, in other words, and something well worth submitting on.

I've decided to start in the middle, with Chapter 5 ("Decision-making") because it’s where it begins to get interesting. I may eventually work my way back to chapters 3 and 4, but only after I've gone through most of the rest of the document first.

The first part of the chapter is devoted to the question of who should be making individual immigration decisions. Currently, this power is in the hands of the Minister, who then delegates it to officials. While in practice almost all decisions are made by those officials, the Minister has the power to intervene in any decision - and is therefore frequently asked to do so, particularly in granting exceptions to residence policy. The key suggestion is for this latter power to be delegated to senior officials, so that (for example) they can allow skilled people who fail to meet the age limit for residency to stay here. I don't have a problem with this particular delegation (its not as if they'd be allowing officials to revoke residence permits, for example) - but I do have a problem with the attempt to couple it to "administrative improvements" intended to severely curtail access to the Minister on purely procedural grounds. As the review points out, the ability for the Minister to intervene is an important safety valve which mitigates against the "unintended consequences of strictly applying rules and criteria". Another way of putting it is that it is the right of ultimate appeal over the heads of officials. Restricting that right of appeal will mean that people in perverse and Kafkaesque situations - people like Dean Kenny, for example - will be forced to incur enormous expense and frustration in order to jump through enough hoops to finally gain access to the Minister and have their situation resolved. More likely, though, they'll simply give up in frustration - which is, I suspect, the intention.

The second part of the chapter asks when immigration applicants should be given reasons for departmental decisions, or a chance to respond to "potentially prejudicial information" which may affect their cases. Currently, the Immigration Act and various other statutes require applicants within New Zealand (but not offshore) to be given reasons why their application is declined. A key question raised is whether reasons for decisions should be provided to offshore applicants, and the answer is "of course they should" - natural justice demands it. That same principle applies to the question of potentially prejudicial information, and currently applicants are given a chance to respond to such information before any decision in made. However, the department doesn't like this, and wants to be able to reject applications on the basis of classified information without having to say why or giving the applicant any chance to respond (this is covered fully in Chapter 9). This is an atrocity against the principle of natural justice, and makes a mockery of their claim that the review is intended to ensure that decision-making is "fair". Unfortunately, it looks as if the decision has already been made; the assumption in this section is that such information will be used, and not shared. So much for "discussion".

The third part of the chapter deals with two issues: electronic decision-making and third-party decision-making. The first seems relatively uncontentious, and the aim is to provide for its implementation in the future when the technological options become clearer, rather than implementing it now. The second would see tertiary institutions and employers making "some" immigration decisions - something which is simply insane. These people have no effective quality controls, are not bound by the checks and balances (the BORA, the Ombudsman) governing government departments, and are likely to make decisions based on their own interests in, for example, maximising the number of fee-paying foreign students they can get, rather than on the criteria used by the government.

Next: Chapter 6 - Exclusion and Expulsion


If someone is accused of a crime (no matter how trivial), or involved in a business or personal dispute, then they are entitled to a proper judicial hearing with all evidence being disclosed and made public. Why should a lesser standard apply for immigration decisions? Being thrown out of the country you live in is rather more serious than a $100 fine.

I don't share your problem with decisons being "delegated down" *provided* there is a proper right of appeal. It's quite possible to operate a quality control and auditing system that ensures that a university, for instance, follows proper procedure in checking visa applications. (It's not very dissimilar to the tax system, where businesses are responsible for collecting a range of taxes - the IRD don't check every invoice - they rely on spot checks and audits).

The vast majority of students who come here to study do in fact do so - and I suspect that neither immigration officers or colleges are particularly able to spot the minority who plan to skive off or engage in crime.

Posted by Rich : 4/23/2006 01:36:00 PM

Rich: it's precisely that lack of an appeal I'm concerned about. Such delegation would effectively remove decisions from the jurisdiction of the Ombudsmen, which is something we should all view with some alarm. the BORA is probably less of an issue, as it applies to any body performing a public function (which certainly includes immigration decisions).

Posted by Idiot/Savant : 4/24/2006 12:36:00 AM

This legislative proposal is an abomination and reflects the degree to which the Parliamentary wing of the Labour Party has become corrupted by over-long exposure to the bureaucratic and commercial elite. Frankly, this si the sort of stuff I'd expect from ACT-National, not the party that signed the Universal Declaration of Human Rights.

Posted by Anonymous : 4/24/2006 11:53:00 AM

i would like to express an opinion in relation to the fairness or otherwise of the Immigration process. In my case I am completely despondent and lacking of any faith as to the standard of their decision making or lack of - as in my wife's and my case, they seem to be devoid of any decision making ability. I am sponsoring my wife (we married on the 31st January 2006 in the Philippines). We have been in a relationship since February, 2005. My wife is pregnant and is expecting our first baby. She is highly intelligent - possessing an honours degree in business management and speaks 7 languages fluently (including English at a reasonably fluent level). We have managed to satisfy all of the conditional requirements relating economics, social,and proof of a relationship and there are no character problems or past indescretions or affiliations etc, which would prevent the issue of a visa. My wife is very healthy however, she did have inactive tb previously in her early years. As a consequence we agreed to her undergoing a full course of medication of 7 months and has passed all of their tests including sputum and other tests confirming that she has zero evidence of any disease . We are also only to willing to agree to any other tests or follow up in Australia - and if provided with the opportunity would sign an undertaking to that affect. The tests required by Immigration has entailed her attending another island on 6 occasions (for medical assessments)A final one is scheduled on the 12 May, 2006 - and two trips to Manila so far for a conference and interview. Each one of these trips has entailed a minimum of 14 - 16 hours travelling. We have put up with personal questions and disclosure of information - which as a social worker, i would not ever have envisaged, or have asked from client's. In my professional view, the persons asking the questions were neither qualified, or cognisant of the emotional and personal trauma's their incessant badgering and questioning creates. We have also put up with their misinformation and standardised meaningless responses when specific questions have been made. And have also put up with all of the big brother intrusions and commands which they arbitrarily make at will. As it currently stands the immigration department has delayed making any kind of decision in our case, for in excess of 10 months and effectively have held us in hiatus for this period. They seem to be prepossed with asking innocuous questions and delaying the process - by requiring duplicate information held within their possession, or which is easily ascertainable from the 100's of pages of documents we have already furnished to them. Given their lack of imagination in relation to our relationship - infact, one of their officer's suggested to me to forget about my wife - we are at the point, where i am now contemplating abandoning Australia altogether so that i can at least be with my wife. I know my ex wife - and my boys, who live with me 99% of the time ( one is 19 and the other 16) are concerned with my current mind set and are concerned that I will relocate overseas permanently. At this point i see no available option. I have heard of many cases like mine - yet, i have seen them bend over backwards whenever, political point scoring, or the world stage is involved. In my case - promises are totally meaningless, and i am uninterested in listening to any politically correct motivated response. I apologise for being long winded and to have meandered a little. Unfortunately, mine like allot of cases, has a mix of complexities which, require due consideration. The bottom line is that - how can any Department require the degree of disclosure, medical appraisement and a rheam of additional requirements spanned over a period greater than ten months and yet cannot confirm that a decision can be made. Or 'Saints Preserve' actually confirm that my wife's temporary visa can be issued so that our baby can be born in this country - the country of my birth and which my wife has a desire to be in. This is because only that i have commitments in this country - and she is happy to follow me to where ever in the world i located.

the information contained above actually occurred and is a real case, currently under consideration by the Immigration Department.

Posted by Anonymous : 5/08/2006 05:38:00 PM