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