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Immigration Bill - Submission to the Transport and Industrial Relations Committee [2007] NZHRCSub 2 (2 November 2007)

Last Updated: 27 March 2015

Human Rights Commission

Submission on the

Immigration Bill


To the Transport and Industrial Relations Committee

2 November 2007

Sylvia Bell

Principal Legal and Policy Analyst
Human Rights Commission
Direct dial (09) 306 2650


1. Introduction 2
2. International context 4
Convention on the Rights of the Child 5
Convention against Torture/

International Covenant on Civil & Political Rights 6


3. Definition of classified information – clause 5 8
4. Permission to enter New Zealand – clauses 9 & 10 10
5. Immigration Instructions – clause 20 11
6. Biometric Information 12
7. Use of classified information – clause 30 13

  1. The use of classified information & Special Advocates in the Refugee determination process 15
  2. Right to vary conditions of entry visas 17
  3. Applications by Minors – clause 49 18

11. Complementary protection – clause 122 19
12. Deportation of visa holders – clause 150 21
13. Humanitarian exemption – clause 186 22
14. Increased powers of immigration officials – clauses 250-252 24
15. Detention - clause 275 24
16. Right to detain children & young people – clauses 294 & 295 25 17. Relationship with Human Rights Act 1993 – clause 350 26

18. 1954 Convention Relating to the Status of Stateless Persons 28
19. Conclusion 30


1.1 This submission is made by the Human Rights Commission (the Commission). The Commission is an independent Crown entity mandated by the Human Rights Act 1993 (HRA). The Commission’s primary functions include advocating and promoting respect for, and an understanding of, human rights in New Zealand society; encouraging harmonious relationships between individuals and the diverse groups in New Zealand; receiving complaints of discrimination; and leading, monitoring and advising on Equal Employment Opportunities (EEO).

1.2 Section 5(2)(m) of the HRA requires the Commission to develop a national plan of action to promote and protect human rights in New Zealand. While Mana ki te Tangata: The New Zealand Action Plan for Human Rights[1]recognises there is no specific right to immigration, it stresses the importance of protecting the rights of migrants and refugees at all stages of the immigration process.

1.3 Human rights standards provide a tool for managing the process in a principled and transparent way[2]. In the immigration context this means:

◦ transparent, fair admission procedures;

◦ procedural safeguards such as rights of appeal and access to effective legal remedies;

◦ clear detailed rules relating to the protection of personal information

1.4 The Commission acknowledges that aspects of the Bill reflect changes that it advocated during the review of the Immigration Act 1987. These include the reference in the purpose statement to individual rights, the implicit recognition of migrants’ contribution to the local workforce and the importance of New Zealand’s immigration related international obligations. It is also encouraging to see that the Bill specifically provides that education providers will not be penalised for allowing a child or young person under 19 who is not entitled to study in New Zealand to access compulsory education; that the health provisions currently found in immigration policy have not been formalised in the legislation and that the Bill specifically refers to the UN Convention against Torture and the International Covenant on Civil and Political Rights.

1.5 However, the Commission still has concerns about some aspects of the Bill including a number of matters that were not foreshadowed in the review process. Among the issues that the Commission considers to be of concern are:


2.1 The purpose of the Human Rights Act 1993 is to “provide better protection of human rights in New Zealand in general accordance with the United Nations Covenants and Conventions on Human Rights”. The Commission therefore has a specific mandate to promote the observance of international human rights standards in legislation, policy and practice.

2.2 While there is no right to immigration, migrants are entitled to the rights outlined in the major international treaties. Some of these rights – for example, the right to freedom from discrimination, to family reunification, freedom from arbitrary arrest, detention and expulsion and the right to justice – take on a particular significance in the immigration context. In addition all the relevant international instruments stress the importance of non-discrimination and the right to be treated with dignity and respect.

2.3 The criteria in the international instruments provide benchmarks for judging whether human rights standards are met in legislation and policy. The right to freedom from discrimination, for example, is relevant to the comments on age made later in this submission as is the right under the ICCPR not to be arbitrarily detained and the relevant jurisprudence.

2.4 The Commission’s position on its statutory responsibility to advocate and promote respect for the international instruments has consistently been that the relevant human rights instruments New Zealand has ratified should be explicitly incorporated in legislation. In this case the United Nations Convention on the Rights of the Child (UNCROC)[3] should be included in the proposed Act to ensure the legislation is interpreted in a way that recognises the rights and special needs of children and young people[4].

2.5 If there is no explicit reference to UNCROC in the legislation, then at the very least the best interests of the child should be identified as a primary consideration in actions concerning children. The Commission understands that the UNCROC obligations will be addressed in the Immigration Instructions and proposed humanitarian appeals process[5]. Should this be the case, then the humanitarian criteria should refer explicitly to the best interests of the child[6].

Ideally the legislation should refer to the UN Convention on the Rights of the Child. Failing this there should be specific recognition that decisions relating to children and young people are required to be in the best interests of the child.

2.8 The references to the Convention against Torture (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR) in the body of the legislation are designed to ensure consistency with New Zealand’s international obligations.

2.9 Both prohibit the refoulement of a person to a situation where they are in danger of torture or inhumane or degrading treatment or punishment. The activities of the individual, however undesirable or dangerous, cannot be a relevant consideration in such circumstances. The protection is absolute and non-derogable[7].

2.10 Article 7 of ICCPR - the right not to be subjected to torture or cruel, inhuman or degrading treatment – effectively complements Art. 3(1) of UNCAT which prohibits States from refouling a person to a State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

2.11 The relevant clauses in the Bill omit the words “in danger of”. This has the effect of increasing the threshold that a person will need to establish to avoid refoulement.

2.12 The wording proposed could have far reaching consequences for protection against torture. Given the Bill’s breadth of cover, diluting the absolute prohibition on torture could have an impact beyond simply security cases and erode the absolute nature of the right to freedom from torture when pressing policy considerations apply[8].

2.13 In Chalal v UK[9] the majority of the House of Lords held that whenever there were substantial grounds for believing that an individual would face a real risk of being subjected to treatment contrary to Art.3 if removed to another State, the responsibility of the contributing State to safeguard him or her against such treatment was engaged in the event of expulsion [para 80].

2.14 The minority suggested that expulsion could be balanced against the threat to national security. It followed that where on the evidence there is a “substantial doubt” as to whether the person would be subjected to torture or inhuman or degrading treatment on return, the threat to security would be sufficient to justify deportation. In Suresh v Canada[10]the Supreme Court of Canada also suggested that deportation might be justified in such circumstances.

2.15 In New Zealand, in Attorney-General v Zaoui[11], the Supreme Court held that in light of the guarantees under the New Zealand Bill of Rights Act 1990 (NZBoRA) - and by extension the ICCPR and the UNCAT - the right not to be deported to face torture could not be balanced against considerations of national security. In other words the Supreme Court upheld the absolute nature of the right.

2.16 The Attorney General’s advice on the Bill suggests that Courts would be likely to read in the reference to “in danger of” to ensure consistency with New Zealand’s international commitments but nevertheless recommends that the words be inserted into the provision during the Select Committee process.[12] The Commission agrees with this. It is always possible that a court may regard the omission as significant and interpret the provision accordingly.

2.17 It is inconsistent with New Zealand’s international undertakings - and the jurisprudence of its highest court - to omit the words “in danger of” from the relevant clauses in the Bill.

The Commission recommends that the words “in danger of” be included in clauses 120(1) and 121(1) of the Bill that refer to the Convention against Torture.


3.1 Clause 5 defines “classified information” as information that the Chief Executive of a relevant agency certifies cannot be disclosed. The information can be withheld if the agency that holds it, or was the source of the information or was provided with it, decides it is likely to infringe the criteria in cl.5(3). Classified information will able to be used in a variety of decisions under the Act[13].

3.2 The provisions relating to classified information raise concerns about:

3.3 The decision maker does not have to make an objective assessment in deciding whether information should be classified and disclosure only has to be “likely” to have one of the effects outlined in cl.5(3)[14]. A decision may therefore be wrong, arbitrary or even corrupt and could still meet the criteria of “classified information”.

3.4 A person who is subject to a prejudicial decision based on classified information is entitled to a summary of the reasons for the decision but not the information on which the reasons are based.[15]In addition, where a decision is within the absolute discretion of the Minister, the decision may be made in reliance on classified information but the Minister does not have to provide a summary or give reasons why he or she has elected to do so. The decision cannot be challenged under s.23 of the Official Information Act 1982.

3.5 The review agency will be bound by the decision to classify the information irrespective of how the decision was reached[16]and the Bill does not provide a remedy should information be incorrectly classified. Once information is defined as “classified” by a Chief Executive - even if the Tribunal subsequently decides it does not meet the criteria in cl.5 - the information remains confidential as a result of cl.32(2). Where an application for review of a warrant of commitment or detention involving classified information is made to the High Court, the Court is required to treat the classified information as accurate.

3.6 The ability to question the quality of classified information will be further limited by the restrictions on judicial review by the High Court to challenge the reasonableness of an official’s opinion[17], the exclusion of complaints to the Inspector-General[18]and cl.32(2) which appears to exclude not only the application of s.23(1) of the Official Information Act but also the role of the Ombudsmen under s.19 of the Ombudsmens Act 1975.

3.7 The way in which decisions about classified information are reached, and the limitations of the review mechanisms provided, will have the effect of shrouding the decision-making process in secrecy and subverting public sector accountability. The Commission does not consider that a determination that a decision to withhold information is wrong is an adequate safeguard against error or misadministration.

The Commission recommends that:

  1. Clause 5 is redrafted and replaced with a more objective test for defining classified information;
  2. The Tribunal is given the same powers to investigate, determine and recommend remedies as the Ombudsmen under the Official Information Act[19];
  3. Clause 32(2) is amended to ensure that the Ombudsmen’s powers under s.19 of the Ombudsmens Act 1975 are unaffected.


4.1 Clause 9 sets out the criteria under which a person will be refused permission to enter New Zealand. These include when a person has been removed, excluded or deported from another country: cl.9(1)(f). A person could therefore be removed from a country for political reasons or excluded for reasons that may not always be substantiated subsequently.

4.2 Although refusal under both cls.9 and 10 can be overridden by a special direction from the Minister, the decision to do so is an “absolute discretion” which means that it cannot be applied for, there is no obligation for the decision maker to consider an application and he or she is not obliged to give reasons for why they have decided to consider (or not consider) the application. Again s.23 of the Official Information Act will not apply.

4.3 The criteria in cl.9(1)(f) are too broad[20]. Should exclusion be justified it should either be because of the criteria in the preceding subsections of cl.9(1) or for the reasons listed in cl.10 (which prohibits a visa or entry permission being granted to persons who the Minister considers are likely to be a threat or risk to security, public order or the public interest).

The Commission recommends that:

  1. The criteria for refusing entry to New Zealand are tightened and cl.9((1)(f) deleted;
  2. Activities that are deemed to constitute a threat or risk are more clearly defined.


5.1 Globally immigration legislation and policy tends to be “gender neutral” and not reflect the particular experience of migrant and refugee women - despite the fact that migrant women make up nearly half of the migrant population world wide[21].

5.2 In New Zealand, for example, migrant women who have been subjected to domestic violence can find themselves in a legal limbo if their partners withdraw their sponsorship for residency when the woman leaves the abusive relationship.

5.3 The Commission recognises that such matters are addressed through regulation or operational policy such as immigration instructions. Clause 20(3) provides guidance on the type of matter that may constitute immigration instructions for the purposes of the Act. A number – for example, matters “relevant to balancing individual eligibility against the requirements of the immigration instructions” (e) and “information necessary to assess eligibility for a visa or entry permission”(f) - could be improved by a reference that would alert officials to the implications of the experiences of women.

The Commission recommends that consideration is given to including an explicit reference in clause 20 to ensure that regard is had to the particular experience of migrant women.


6.1 Under the Bill biometric information will be able to be used to establish or verify a person’s identity. While there are some positive aspects to this - for example, there is evidence that reliance on paper based identity documents is becoming increasingly inadequate and identity theft more common[22] - the Commission is not convinced that there are compelling reasons for requiring biometric data to be collected from everyone who wishes to come to New Zealand. It is concerned that this could set a precedent for the compulsory collection of biometric information in other areas or lead to data being exchanged with other countries.

6.2 Furthermore there is no indication in the Bill about how the information will be dealt with – for example, how it will be stored or for how long. Given the importance of biometric information to the scheme of the Bill, it should include a framework for managing and controlling its use, including necessary (privacy) safeguards.

The Commission urges that the Privacy Commissioner is consulted on the development of an appropriate framework for managing and controlling the use of biometric information.


7.1 Classified information will no longer be limited to security matters but will be able to be used in a variety of situations which involve matters of security or criminal conduct or “may have a significant impact on New Zealand’s international reputation” [23].

7.2 Apart from the implications of using classified information in a wide range of immigration matters, relying on concerns about the potential effect on New Zealand’s international reputation is problematic. Decisions about what amounts to a significant impact on a country’s reputation can be subjective. In the United Kingdom they have been described as “makeweight” and held not to justify detention without trial in the absence of other reasons: A(FC) & Ors v Secretary of State for the Home Department. [24]

7.3 Summaries of the allegations that make up the classified information can be provided to the person concerned “except to the extent that a summary would prejudice the interests referred to in cl.5(3)”. As the issues in cl.5(3) are those that led to its classification in the first place, summaries may not be provided at all.

7.4 As a general principle, an individual should be able to challenge information which forms the basis of an adverse decision about him or her through normal adjudicative, adversarial processes[25]. This is difficult, if not impossible, if a person is unaware of what they are accused of.

7.5 The Attorney General accepts that there should be mechanisms allowing an affected person to be informed of the nature of the information used in a decision that may be prejudicial to them, and to challenge the veracity of the decision - and the decision itself - by way of appeal[26] but considers that the procedures provided are satisfactory. The Commission does not agree that this will always be the case and considers that summaries of classified information should be provided in all cases where the information forms the basis of an adverse decision.

The Commission recommends that:

  1. The reference to New Zealand’s international reputation is deleted;
  2. Summaries of classified information are provided whenever classified information is used.


8.1 Under cl.137 classified information may also be used to decide a claim for, or cancel recognition of, refugee or protected person status. Decisions in such cases are made by the Tribunal rather than officials and an applicant is entitled to be represented by a Special Advocate.

8.2 The Tribunal can approve the provision of a summary of allegations to an applicant for refugee or protected person status on the same conditions as in visa and residency applications. That is, the summary will not be provided if it would involve disclosure that would be likely to prejudice one of the interests that led the information to be classified in the first place. It is therefore possible that an applicant may not have access to a summary of the information on which a decision about their status is made.

8.3 The refugee determination process differs from the standard immigration process because of the issues at stake, namely a well founded fear of persecution in the person’s country of origin. The use of classified information in the context of refugee decision making could significantly undermine a system in which it is particularly important that the decision making process is fair and transparent and administered in accordance with the principles of natural justice.

8.4 The United Nations High Commissioner for Refugees (UNHCR) has stated that the use of classified information in the refugee context is at odds with best practice and has urged against its use unless it is “declassified” and shared with all the parties concerned[27].

8.5 The Bill makes provision for a Special Advocate to represent an applicant for refugee or protected person status in situations where classified information is used. The advocate is able to see the classified information but thereafter can only communicate with their client in writing through the court and with the court’s approval and, again, only if it does not prejudice the interests that led to its classification in the first place. In other words whether the information is provided is effectively at the discretion of the decision makers.

8.6 The concept of the special advocate is very similar to that in the United Kingdom where the Joint Committee on Human Rights recently criticised the concept as “kafkaesque” and

“a system ... which is very far removed from what we would consider to be anything like a fair procedure. We were left in no doubt that proceedings involving special advocates, as currently conducted, fail to afford a substantial measure of procedural justice[28].

8.7 Underlying the Committee’s criticism were concerns about the limited disclosure of information which compromised the Special Advocate’s ability to rebut allegations against their clients, the lack of balance between the individual on the one hand and the public interest in non-disclosure on the other[29], and the limitation of what special advocates can practically do for their clients when they are prohibited from communicating with them about any matter connected with the proceedings as soon as the advocate has seen the classified material.[30]

8.8 In New Zealand the situation is compounded by the fact that Special Advocates are unable to being their own proceedings - for example, by way of judicial review[31]. This limits an applicant’s right to natural justice even further as the judiciary is excluded from reviewing the Tribunal’s decisions involving classified information.

The Commission recommends that:

  1. As a general principle classified information should not be used in refugee and protected person determinations but if it is then there should be statutory obligation to provide a summary;
  2. The prohibition on communication between the Special Advocate and an applicant after the advocate has seen the classified information is removed.[32]


9.1 Clause 39 confers a power on the Minister or an immigration official to impose additional conditions on the grant of a visa (other than in the case of a permanent residency visa). Any variation must be done with the agreement of the visa holder. The individual will be notified in writing at the address supplied in the visa application form. Where conditions are imposed “by or under any other Act” (inter alia) then the obligation to comply arises whether the visa holder is aware of it or not, or of the implications of not meeting it[33].

9.2 While the Commission recognises the advantages of having a simpler, more flexible visa system, it has concerns that the ability to amend or impose conditions on visa holders in this way could be abused in situations where there is a perceived risk to national security.

9.3 If people of a particular ethnicity or country of origin are the subject of restrictions (as happened for example, during the Gulf war or APEC) this can amount to discrimination. The UN Committee on the Elimination of Racial Discrimination and the Human Rights Committee have expressed concern at such a possibility[34]and in R v Immigration Officer at Prague Airport & Anor ex parte European Roma Rights Centre & Ors[35] Baroness Hale noted that,

The [decision maker] may be acting on belief or assumptions about members of the sex or racial groups involved which are often true and which if true would provide a good reason for the less favourable treatment in question. But ‘what may be true of a group may not be true of a significant number of individuals within that group ...’

The Commission recommends the criteria for varying visa conditions should be subject to an objective test rather than ministerial discretion.


10.1 A visa application by a person under 18 who is not married or in a civil union can be declined if the Minister or immigration official is not satisfied that the person’s parent or guardian agrees with the application.

10.2 As the provision treats people aged 16 and 17 who are not married or in a civil union differently, it breaches s.19 of the NZBoRA (the right to be free from discrimination) and, by extension, the Human Rights Act 1993 as both Acts limit discrimination on the ground of age and marital status to people over the age of 16[36].

10.3 The Attorney-General considers that persons under the age of 18 in this situation are vulnerable to exploitation by third parties in the immigration context and the check on parental consent acts as a “reasonable and protective measure” (together with the discretion which allows the Minister or immigration official to grant an application in deserving cases) thus justifying the infringement of s.19.

10.4 The agreement of a parent or guardian does not necessarily guarantee that a young people will be protected from exploitation. In other situations where the Act applies to young people[37], there is an opportunity for their views to be taken into account commensurate with their maturity and understanding. Taking a similar approach to applications for a visa would allow young people between 16 and 18 to participate in decisions about their own welfare.

The Commission recommends deleting cl.49 and amending cl.338(2) – with whatever other amendments are necessary - to include applications for a visa.


11.1 The concept of protected person status is new to New Zealand law and the Commission is pleased to see it included in the Bill. However the wording could be improved to better reflect developing international human rights trends.

11.2 The term “protected person” is used to describe people who do not fall within the Refugee Convention but cannot safely return to their country of origin because they might face torture, arbitrary deprivation of life or cruel treatment if they did so. The phenomenon is known as “complementary protection” and reflects the increasing difficultly faced by countries such as New Zealand when seeking to remove or deport asylum seekers who have failed in their claim for refugee status to potentially threatening situations.

11.3 Provisions such as cl.122 are therefore designed to provide protection for people who cannot benefit from the regime established for refugees under the 1951 Convention/1967 Protocol even though they, like Convention refugees, may have sound reasons for not returning to their home country. The nature and extent of protection varies from country to country depending on matters such as the way in which the definition of refugee is interpreted, moral and political considerations (including the country’s commitment to international human rights standards) and the practical difficulties in dealing with people who cannot be removed for logistical reasons such as proof of nationality[38].

11.4 In the absence of consistent international direction it can be difficult to say what the eligibility criteria should be in such cases. The UNHCR considers complementary protection should be available to people who are unable to return to their countries because of serious and indiscriminate threats to life, liberty or security of person resulting from generalised violence or events seriously disturbing public order[39]. In terms of State practice most countries that accept the need to provide such protection, support protection of removal from a situation of generalised violence in the country of origin.

11.5 Clause 122(b) qualifies the protection it affords by stating that it will not apply if the situation – that is torture, deprivation of life or cruel treatment - is faced generally by persons from the country in question. In other words, people who are threatened by indiscriminate or generalised violence in their country will not qualify for protection.

11.6 The Bill as currently drafted therefore limits the protection available and is arguably inconsistent with the standards and procedures adopted by some other like minded countries.

The Commission recommends that the meaning of protected person is redrafted to ensure that it covers indiscriminate or generalised risk of violence in a person’s country of origin[40].


12.1 Under clause 150 the holder of a residence visa will be able to be deported in the two years following the granting of residency if they are convicted of an offence punishable by imprisonment for 3 months or more (or convicted of an offence that carries a term of imprisonment of 2 years or more if they have been in the country for 5 years or a term of 5 years if they have held a visa for 10 years).

12.2 The Commission considers that once migrants have been granted residency then they should be treated the same as other New Zealanders. Immigrants have to satisfy certain character requirements before they can enter New Zealand or become eligible for an entry visa, therefore once they have been granted residency they should be treated equally.

12.3 Should the provision be retained, then the threshold should be more commensurate with the nature of the offence. At present this is not the case. For example, every period of imprisonment specified by the Crimes Act 1961 is for three months or longer and many offences in the Summary Offences Act 1981 have a maximum imprisonment term of three months or greater. Offences such as wilful damage[41]and being on a property without reasonable excuse[42]are therefore on par with serious offences (which might arguably justify deportation) such as murder or manslaughter. Deportation is also a possibility even if the person does not receive the maximum sentence.

12.4 The ability to deport people in such circumstances can have significant implications where one member of a family such as a young adult is deported as a result of committing an offence.

The Commission recommends that clause150 is deleted or if it is retained then the threshold for deportation is more closely correlated with the severity of the offence.


13.1 The Bill will include a single test for appealing deportation on humanitarian grounds. The test, which will require the applicant to establish both exceptional circumstances of a humanitarian nature and that the circumstances outweigh the public interest in expelling them, is the most restrictive version of the three tests that currently apply to humanitarian appeals. It will apply to all those liable for deportation, including permanent residents and people who hold temporary visas on conditions and breach them inadvertently[43].

13.2 The Commission considers that the test is too stringent and that 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 suitable given the potentially wide application of the test.

13.3 There is an assumption that the test will be interpreted consistently with the principles in UNCROC[44]. However, this may not always be enough. Canada provides a salutary example of why the best interests of the child should be specifically referred to in the legislation.

13.4 Until 2002 the Canadian immigration legislation referred simply to “compassionate and humanitarian considerations”. There was no reference to the UNCROC. As in New Zealand, application of the exemption depended on the exercise of (delegated) Ministerial discretion. In Baker v Canada (Minister of Citizenship and Immigration [45]- a case which examined the reasonableness of an immigration official’s refusal to grant a humanitarian exemption to the mother of children born in Canada - the Supreme Court “read in” UNCROC and the best interests of the child, noting that the principles in the Convention “... help show the values that are central in determining whether this decision was a reasonable exercise of the power”[46]. As a result of the decision in Baker, the Canadian legislation was amended to reflect the best interests of the child[47].

The Commission recommends that:

  1. the proposed test for exemption on humanitarian grounds is replaced by one which requires individuals to establish that they are suffering hardship which is unusual, excessive or undeserved and the result of circumstances beyond their control;
  2. If there is no reference to UNCROC in the legislation, the humanitarian test should specifically refer to the best interests of the child.


14.1 Clauses 250-252 extend the powers of entry and inspection currently available to police to immigration officials to investigate compliance with immigration obligations. This will include monitoring employers and education providers and people unlawfully in New Zealand or liable for deportation.

14.2 The Commission is concerned to ensure that immigration officials are provided with comprehensive training on human rights and that they exercise the new powers appropriately incorporating human rights in practice.

The Commission recommends that where powers of entry and inspection are exercised by Immigration Officials they are trained and to meet the relevant human rights standards in their work.


15.1 Predictably a significant number of provisions in the Bill relate to detention. While the Commission recognises that this is inevitable in the immigration context, it has concerns about clause 275 which increases the time that people will be able to be detained without a warrant of commitment to 96 hours. The extension is principally due to the increased administrative complexity that has resulted from the events of 9/11.

15.2 Even lawful detention can become arbitrary in terms of ss.22 and 23 BORA[48]. As the Attorney General notes, an initially valid power to detain may be abused by unwarranted delays or the treatment of the person detained. Detention for 96 hours is at the upper limit of such detention and accordingly there is an obligation to proceed expeditiously[49].

15.3 The Commission notes that a person who is liable to be detained under cl.275 may be required to reside at a particular place on conditions – although any such decision and the conditions which are imposed are at the discretion of the immigration official.

15.4 The exercise of the discretion cannot be challenged. Given the length of time and the fact that most people in this situation are unlikely to be criminals but are likely to be detained in police cells, the Commission suggests that there should be a presumption against detention, with residency with conditions being the preferred option.

The Commission recommends that the Bill incorporates a presumption against detention.


16.1 Provision is made for children and young people under the age of 18 to be detained either in residences under the control of, or approved by, the Chief Executive of the department responsible for administering the Children Young Persons and Their Families Act 1989 (“the Chief Executive”) or “any premises approved for the purposes of detention under th[e] Act.” The requirement is mandatory.

16.2 The Commission considers it is inappropriate in most cases to detain children and young people under the age of 18 and that minors – particularly unaccompanied minors – seeking asylum should not be kept in detention at all. Such treatment is inconsistent with the best interests of the child and with the principles in UNCROC.

16.3 While the Commission recognises that there will be situations where young people will need to be housed in accommodation approved by the Chief Executive, this should not be mandatory, should be a measure of last resort and only for the shortest time necessary.

The Commission recommends that:

  1. It should not be mandatory to detain minors;
  2. There should be a presumption against detaining children and young people under the age of 18;


17.1 The Bill effectively repeats s.149D of the Immigration Act 1987 which limits the role of the Human Rights Commission in relation to immigration matters. The provision is an anomaly. It makes the Immigration Act the only legislation in New Zealand that cannot be challenged under the Human Rights Act.

17.2 No compelling arguments have been put forward to justify the exemption. While the Commission recognises that the purpose of the exemption is to avoid the possibility of an additional review process developing through the Commission’s complaints process, it has repeatedly stated (for example, in its submission on the Human Rights Amendment Bill and the paper on the Immigration review itself) that it has no wish to become involved in providing a further appeal process.

17.3 Section 80(3)(d) of the HRA allows the Commission to decline to act on a complaint if there is an adequate right of appeal available. The Commission regularly invokes this provision when such cases arise.

17.4 At present the Commission can carry out a number of functions under s.5 of the HRA and address complaints about the manner and provision of Immigration services. However, it cannot seek a declaratory judgement under s.6 HRA relating to the Immigration Act, or bring civil proceedings arising from complaints under s.92B or about a breach of either Part 1A or Part 2 of the HRA identified in the course of a Commission inquiry.

17.5 Ironically, notwithstanding the proscription against the Commission’s involvement in immigration matters, individuals who can afford to, may complain about a breach of the Bill of Rights in relation to immigration. The best that s.149D (and by extension cl.350) does therefore is to deter people with little or no money from challenging their treatment.

17.6 As a result of the amendment to the Human Rights Act in 2001 the Commission, a complainant or an aggrieved person can take proceedings to the Human Rights Review Tribunal questioning discriminatory legislation or action authorised by an enactment. In such cases the only remedy available is that the Tribunal can make a declaration that the enactment is inconsistent with the right to freedom from discrimination under s.19 of the NZBoRA. This does not affect the validity of the enactment but ensures that the inconsistency is drawn to the attention of Parliament and a report on the Government’s response is provided by the responsible Minister. The effect of both the existing provision and that proposed in the Bill is to make the Immigration Act the only piece of legislation in New Zealand that is exempt from such a challenge.

17.7 If the Committee decides to retain the exception - which the Commission considers is unnecessary - clause 350 should be amended to allow the Commission to accept complaints about the content of the Immigration Act. The Commission recommends the wording of cl.350 be replaced by the following :

  1. Relationship between this Act and the Human Rights Act 1993
(1) Subject to subsection (2), the Human Rights Commission may perform, in relation to immigration matters, all of its functions (as described in section 5 of the Human Rights Act 1993), including –
(a) making public statements in relation to any matter affecting human rights;
(b) receiving and inviting representations from members of the public on any matter affecting human rights;
(c) inquiring generally into any matter, practice or procedure if it appears to the Commission that the matter involves, or may involve, the infringement of human rights;
(d) reporting to the Prime Minister on any matter affecting human rights.
(2) However, despite anything in the Human Rights Act 1993 no complaint may be made under that Act in respect of-

(3) This section recognises that immigration matters inherently involve different treatment on the basis of personal characteristics

The Commission recommends that the provision relating to the role of the Human Rights Commission as it relates to immigration matters either be deleted or reworded as suggested.


18.1 New Zealand is currently not a party to the 1954 Convention relating to the Status of Stateless Persons. Whether it should become so was raised as an issue during the consultation process. It was seem that there was support for the idea but it was decided not to proceed because of the claimed potential cost.[50]

18.2 The Commission recognises that New Zealand has recently ratified the 1961 Convention on the Reduction of Statelessness. However it also notes that the 1961 Convention is mainly aimed at avoiding future statelessness by setting standards for national laws on the acquisition and loss of nationality. It permits people to acquire nationality who would otherwise be stateless if they have an appropriate link with the State through birth or descent and allows for the retention of nationality in the case of persons who would be made stateless if they inadvertently lose nationality[51]. The 1961 Convention therefore has significant limitations.

18.3 While most of those who would be covered by the 1954 Convention are likely to be granted refugee status[52], there will still be a small number of people who will not fit the profile of a refugee. Recent developments such as the dissolution of the former Soviet Union and the former Yugoslavia, for example, have led to more people finding themselves stateless. While it is unlikely that large numbers of people in this situation will seek refuge in New Zealand[53], the Commission considers it is inappropriate to leave the small number that do in limbo or dependent on the exercise of ministerial discretion (which is the only other option at present).

18.4 As citizenship is the key to protecting rights, stateless people often do not have access to employment, health care, social security and mobility. Chief Justice Earl Warren therefore described being statelessness as lacking “the right to have rights”: Trop v Dulles.[54]

18.5 It could be argued that by not taking steps to alleviate the position of stateless people, a State violates the universal anti-discrimination norm and the duty to avoid stateless stemming from Article 15 of the Universal Declaration of Human Rights which guarantees everyone the right to a nationality. Ratification of both Conventions would be a significant step towards guaranteeing the rights of stateless persons and providing substantive protection of the individual right to a nationality. It would also affirm the primacy of the prohibition against discrimination[55].

The Commission recommends that further consideration be given to recommending ratification of the Convention


19.1 New Zealand’s interests are best served by the robust application of human rights standards. While there is no specific right to immigration migrants, refugees and visitors to New Zealand are entitled to be treated in a way that reflects their rights and acknowledges responsibilities.

19.2 The Commission urges as a priority that particular regard is had for the rights and interests of children and that the legislation specifically incorporates a reference to the Convention on the Rights of the Child and/or the best interests of the child. It also recommends that the reference in the Bill to the Convention Against Torture is reworded so that it does not derogate in any sense from the fundamental obligations in the Convention itself.

18.1 The Commission is encouraged that the proposed legislation reflects a number of the recommendations that were identified in the course of the review, but it considers that the Bill could be improved by making the following changes:

[1] Human Rights Commission Mana ki te Tangata: The New Zealand Action Plan for Human Rights (2005) Wellington
[2] Ibid. at 4.5

[3] The values and principles of the Convention recognise the importance of giving priority to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognises that “childhood is entitled to special care and assistance.”

[4] Clauses 338 - 340 address the matter of children and young people under the age of 18 by allowing for the nomination of a responsible adult to represent their interests and their views to be taken into account in relevant proceedings commensurate with their level of understanding and maturity. This is not the same as requiring a State to act in a particular way.

[5] Minister of Immigration, Immigration Act Review: Overview Paper and Human Rights Issues (3/11/2006) at para 18
[6] See for example, s.114(2) Immigration and Refugee Protection Act 2002 (Canada)

[7] UNHRCt General Comment 20 (Forty-fourth Session, 1992); see also Chalal v UK [1996] ECHR 54; [1997] 23 EHRR 413. The prohibition against torture itself is recognised as a principle of jus cogens – the highest form of customary international law which is binding in all circumstances, irrespective of treaty obligations.

[8] See House of Lords, House of Commons Joint Committee on Human Rights: The UN Convention against Torture, 19th Report of Session 2005-2006 (2006) Vol. 1 at 12
[9] Ibid.

[10] Manickavasagam Suresh v Minister of Citizenship and Immigration & the Attorney General of Canada (Suresh v Canada) [2002] 1 S.C.R 3; 2001 SCC1
[11] [2005] NZSC 38

[12] Attorney General, Legal Advice – Consistency with the New Zealand Bill of Rights Act 1990: Immigration Bill (20/7/07) at para 30. The opinion is available at
[13] Clause 30

[14]“Likely” is a difficult test. Whether the law is violated often depends on the enthusiasm of those charged with enforcing it: G Huscroft ‘Defamation, Racial Disharmony and Freedom of Expression’ in Huscroft & Rishworth (eds) Rights and Freedoms, Brookers (1995) at 205
[15] Clauses 34 & 35
[16] Clause 231
[17] Clause 222(2)
[18] Clause 35(3)

[19]For example, the criteria under s.18(c)(i) of the Official Information Act which allow the provision of information to be refused in certain circumstances.

[20]The explanatory note to the Bill states that cls.9 and 10 essentially repeat s. 7 Immigration Act 1987 but with broader exclusion criteria. However, the proposed legislation is not as explicit about linking to international circumstances activities that might be considered a danger to security or a risk to public order.

[21]‘Female migration: Bridging the Gaps through the Life Cycle’ UNFPA-IOM Expert Group Meeting May 2006, 3
[22] Ibid., at 4
[23]Onshore visa applications, residence visas and deportation matters
[24] [2004] UKHL 56 per Lord Rodger of Earlsferry at [181]

[25]Section 27(1) NZBoRA (the right to the observance of the principles of natural justice)

[26] Attorney General, Legal Advice – Consistency with the New Zealand Bill of Rights Act 1990: Immigration Bill (20/7/07) at para 146. The opinion is available at

[27] Submission of the Office of the High Commissioner for Refugees, Review of New Zealand’s Immigration Act 1987 (2006) at para 19

[28]UK Parliament, Joint Committee on Human Rights - Nineteenth Report, Session 2006-07 (2007) at para 192

[29] Ibid., at para 196; see also C Forcese & L Waldman Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom and New Zealand on the use of “Special Advocates” in National Security Proceedings, University of Ottawa (2007)
[30] Ibid., at para 200
[31] Clause 235(2)

[32]Similar suggestions have been made by both the UK Joint Committee (supra) and the Special Senate Committee of the Canadian Parliament (see Fundamental Justice in Extraordinary Times: Main report of the Special Senate Committee on the Anti-Terrorism Act, February 2007 at pp.35-36 and 42)
[33] Cl.44(2)

[34] Kofi Annan UN Secretary General, Protection of Human Rights and Fundamental Freedoms while Countering Terrorism A/58./266, 8 August 2003 at para 47
[35] [2004] UKHL 55
[36] Section 21(1) HRA 1993

[37]That is in relation to deportation, recognition as a refugee or protected person, appeal or detention: Cl.338(2)

[38] UNHCR Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”) Legal and Protection Policy Research Series (2005) available at at viii. Cl.122(b) is premised on the assumption the person seeking protection must be able to establish that they would face torture, arbitrary deprivation of life or cruel treatment in every part of their country of origin. What this means in practice can be problematic. See, for example the discussion in Canadian Legal Services Board, Persons in need of Protection: Risk to Life or Risk of Cruel and Unusual Treatment or Punishment Legal Services, Immigration & Refugee Board (2002) at

[39] UNHCR Complementary Forms of Protection: Their Nature and Relationship to the International Refugee Protection Regime (EC/50/SC/CRP.18) 19th June 2000

[40] Amnesty International have suggested the following definition based on the Council Directive 2004/83/EC of the European Union ... an applicant must demonstrate that there is a real chance that, if returned to his or her country of origin the applicant would face serious harm. (Serious harm would involve but not be limited to the death penalty or execution; torture or inhuman or degrading treatment or punishment or serious an individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict: Amnesty International: Review of New Zealand’s Immigration Act 1987 (2007)
[41] Summary Offences Act 1981 s.11
[42] Summary Offences Act 1981 s.29
[43] As a result of the combination of cls.44(2) & 146(5)(a)

[44] Minister of Immigration, Immigration Act Review: Overview Paper and Human Rights Issues (3/11/2006) at para 18
[45] [1999] 2 S.C.R 817
[46] Ibid., para 71 per Madam Justice L’Heureux-Dube

[47] Section 114(2) Immigration Act was amended by the Immigration and Refugee Protection Act in 2002 to confer a discretion on the Minister in deciding whether compassionate or humanitarian grounds apply to take into account the best interests of a child directly affected or public policy issues.
[48] A v Australia (1997) 4 BHRC 210 (HRC)
[49] Supra, fn10 at para 79
[50] Immigration Act Review: Summary of Cabinet Decisions (2006) at 8
[51] A Brouwer, Statelessness in the Canadian Context; A Discussion Paper (2003) 18 available at
[52] Many States did not ratify the 1954 Convention because they considered the Refugee Convention would provide adequate protection: J Hathaway, The Law of Refugee Status Butterworths, Canada (2001) at 59
[53] There is no evidence that statelessness claims increase in countries that ratify the Convention. Supra (fn 6) at 42
[54] [1958] USSC 57; 356 U.S 86 (1958) (USSC) at 102
[55] Human Rights and Legal Identity: Approaches to Combating Statelessness and Arbitrary Deprivation of Nationality, Thematic Conference paper: Open Society Justice Initiative (2006)

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