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Immigration Amendment Bill (no 2) - Submission to the Transport and Industrial Relations Committee [2014] NZHRCSub 1 (7 February 2014)

Last Updated: 16 January 2015

Submission by the

_{Human Rights Commission}

_{Immigration Amendment Bill (No 2)}

to the Transport and Industrial Relations

Committee

7 February 2014

Contact person:

Michael J V White Senior Legal and Policy Analyst Human Rights Commission Direct dial 04 4716752
Email: MichaelW@hrc.co.nz

Submission by the Human Rights Commission on the Immigration

_{Amendment Bill (No 2)}

1. The New Zealand Human Rights Commission (“Commission”) welcomes the opportunity to make a submission on the Immigration Amendment Bill (No 2) (“Bill”). The Commission is an independent Crown entity that derives its statutory mandate from the Human Rights Act 1993 (“HRA”). The long title to the HRA states it is intended to provide better protection of human rights in New Zealand in general accordance with United Nations human rights Covenants and Conventions.

2. These rights are set out in a number of international instruments including the

1951 Convention relating to the Status of Refugees (“Refugee Convention”), the International Covenant on Civil and Political Rights (“ICCPR”), the International Covenant on Economic, Social and Cultural Rights (ICESCR”), the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), the Convention on the Rights of the Child (“CRC”) and the Convention on the Rights of Persons with Disabilities (“CRPD”). New Zealand is bound by these covenants and conventions, having ratified them, and is required to report regularly to the United Nations on steps taken to realise its obligations.

3. While there is no right to immigration as such, migrants and refugees 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.

4. The Bill aims to ensure that the immigration system operates more effectively by:

• addressing gaps identified in the compliance regime;

_{• responding to opportunities provided by new technology;}

_{• introducing measures to address the exploitation of migrant workers;}

_{• clarifying provisions in the principal act;}

• addressing minor drafting issues.

5. Although the majority of the proposed changes can be categorised as minor and technical, some have the potential to tilt the carefully achieved balance between rights protections and border control and security. This submission addresses 4 aspects of the Bill, namely:

• measures to address the exploitation of migrant workers;

_{• search powers;}

_{• decisions made using absolute discretion;}

_{• the use of electronic notifications.}

Measures to address the exploitation of migrant workers

6. The Commission supports measures to better protect temporary migrant workers who often find themselves subject to exploitation. Including the exploitation of temporary migrant workers as an offence under the Immigration Act 2009 is one way of achieving this. However, the Commission notes that penalties in and of themselves will not necessarily improve the situation for all temporary migrant workers. It is important that education and awareness raising programmes are undertaken alongside this change to ensure that migrant workers are aware of their rights and how to enforce them. Likewise employers need to be made aware of their obligations and provided with appropriate advice and guidance to implement these into their day to day business operations.

7. Businesses must also be educated about the United Nations Guiding Principles on Business and Human Rights (“Ruggie Principles”). The Ruggie Principles received the unanimous endorsement of the Human Rights Council, in effect establishing them as authoritative international human-rights standards relating to business and human rights. The Ruggie Principles require the adoption of appropriate policies and regulations and impose a responsibility on business to:

• respect human rights;

_{• avoid infringing on the rights of others;}

_{• address any adverse impacts caused by their operations}

8. The Commission acknowledges that these activities will not form part of legislative change. However, it is important to be aware of the need for wider intervention to better ensure the realisation of rights for temporary migrant workers.

9. The Bill also makes employers who hold residence class visas liable for deportation if they exploit migrant workers or knowingly employ migrant workers without work rights. The Commission agrees that employers should not exploit migrant workers. However, making employers on residence class visas liable for deportation could be an overly harsh sanction in some circumstances.

10. Those on residence class visas are more likely to have families settled in New Zealand, attending New Zealand schools and actively engaging in the community. Any action taken on a deportation order would invariably impact on the rights of these children and other family members. Since Tavita v Minister of

Immigration¹ the rights of the child have been considered a mandatory

consideration in immigration decision making. The Commission would hope that these rights, as well as other human rights considerations, would be at the forefront of any decision as to whether to impose a deportation order or not.

11. It is recommended that the Bill be amended to explicitly acknowledge that deportation will only be an appropriate sanction in particularly serious cases and that decisions regarding its imposition should be made after consideration of other relevant factors such as those referred to above.

¹ [1993] NZCA 354; [1994] 2 NZLR 257 (CA)

Enhanced Search Powers for Immigration Officers

12. The Bill extends the powers of immigration officers to:

• undertake a personal search at the border;

• search a property or place for identity documents in order to facilitate a deportation or turnaround;

_{• enter or search an employer’s premises in order to search for unlawful}

workers, check documents and interview employees to ascertain whether the employees and employer are complying with the principal Act;

_{• apply for and execute a search warrant.}

13. The Commission raised concerns with the Ministry of Business, Innovation and Employment (“Ministry”) during the policy development stage about the implementation of these provisions. In particular the Commission was concerned that if any extra search powers were to be conferred on immigration officials they must be properly trained and there must be adequate scrutiny to ensure the powers are exercised appropriately and in a human rights focused manner.

14. The Commission is reassured to see that numerous safeguards are in place, including the explicit application of the Search and Surveillance Act 2012 to these proposed amendments. The Commission also welcomes the Ministry’s assurance that the new search provisions will not be implemented until appropriate training has occurred. The Commission is willing and able to assist with this training.

Decisions made using absolute discretion

15. The Bill proposes the removal of the ability for an individual to request information under the Privacy Act 1993 in relation to any decision made in the Minister’s absolute discretion (as defined in section 11 of the principal Act). According to the Ministry the reason for this is that the intention of the Immigration Act 2009 is to limit the rights and protections available to individuals disenfranchised from the Immigration system.

16. Although the Immigration Act 2009 states at s 11(c), in relation to such decisions, that “the decision maker is not required to give reasons for any decision...”, this does not mean that reasons must not be given. In fact until recently reasons were generally provided to ensure transparency and respect the principles of natural justice.

17. The giving of reasons is one of the fundamentals of good administration.

Immigration New Zealand itself acknowledges the importance of fairness and natural justice in decision making. In its 2012 operational manual it states:

a. Good decision-making requires attention to process, to how the decision is made, as well as looking at the merits of the case. A fair process is more likely to ensure a fair outcome. Decisions that are

not made in the proper manner may be reviewed by the courts or become a subject of complaint to the Ombudsman (see A9).

2. Making a decision in the proper manner involves acting on the principles of fairness and natural justice, which means:

i giving the applicant a fair hearing; and ii avoiding bias.

100. All immigration officers must act on the principles of fairness and natural justice when deciding an application.

18. The manual goes on to consider what constitutes a fair decision and accepts that the giving of reasons can have a bearing on the fairness of a decision. It states:

a. Whether a decision is fair or not depends on such factors as:

· whether an application is given proper consideration;

· whether the applicant is informed of information that might harm their case (often referred to as potentially prejudicial information);

· whether the applicant is given a reasonable opportunity to

respond to harmful information;

· whether the application is decided in a way that is consistent with other decisions;

· whether appropriate reasons are given for declining an

application;

· whether only relevant information is considered;

· whether all known relevant information is considered.

19. However, the latest circular on handling section 61 cases – Internal Administration Circular 11-10 - contains a section, instructing staff refusing to consider a request to:

not record any reasons or rationale for refusing to consider the request in either AMS notes or in the communication with the client.

20. This approach significantly impacts on rights to review and justice – in this case either by the Ombudsman or through Judicial Review proceedings. Removing the ability to request information under the Privacy Act 1993 further limits these rights.

21. Even where decisions are made in the “absolute discretion” under the Immigration Act 2009, some factors will still need to be taken into account as relevant and/or mandatory relevant considerations. For example, the interests

of the children as a primary consideration must be given proper weight and not discounted without adequate reason.

22. The Commission is deeply concerned that the proposed amendment essentially creates an unfettered discretion, removing the ability to assess whether decision making has been made in accordance with mandatory considerations such as New Zealand’s international obligations. In the Commission’s view such a discretion cannot co-exist with the rule of law and constitutional government. The Commission therefore recommends that clause 8 of the Bill be deleted.

Electronic notifications

23. The Bill expressly allows the Ministry to send notices electronically and allow the use of electronic communications in Immigration and Protection Tribunal proceedings. The Commission acknowledges that the use of electronic notices, documents and applications can increase efficiency and decrease cost.

24. However, it is imperative that any system for electronic communications is developed within a human rights framework ensuring that it is fully accessible to all groups of society. For example, as is required by the CRPD some disabled people may need accommodations to ensure a fully accessible system. The Commission is available to provide guidance on what may be required in this regard.

25. The Commission appreciates the opportunity to make this submission. It does not wish to appear before the Select Committee.

26. If you would like to discuss any aspect of this submission further please contact

Michael White, Legal and Policy Analyst at michaelw@hrc.co.nz.