Yellow Peril by Tze Ming Mok

Everyone is Illegal: part 1

A few examples of notes made so far on my copy of the Immigration Act Review discussion paper: "Unconvincing"; "removing accountability"; "no adequate argument for change"; "fairness??"; "Aaaargh!!!"; "oh this bit's quite good actually"; and "you bastards!"

Okay - I'm about halfway through the 263 pages. It's long. You can read sections and make submissions online here by June 14th please, and register here for the consultation sessions. Be quick - they start next week! Click on the 'play the audio' link at the top of this post for the consultation timetable (word document). The Auckland refugee interests and community interests sessions are on Tuesday 2 May, at ye olde Roskill municipal stomping grounds: the Fickling Centre at Three Kings. Refugee interests 1-3 pm, community/migrant interests 7-9 pm. If you're in the biz, please register and come along. It's important.

Idiot/Savant is also on the case. Here are some of his useful running observations: a general first impression, comment on the Radio NZ panel discussion (audio file no longer up unfortunately), and comment on Section 5: decision-making.

For my part, here's summary overview of my objections thus far which anyone is welcome to use for their own submission.

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The stated third objective of the Immigration Act review is to “establish fair, firm and fast decision-making processes.” This objective supports a balance between fairness, procedural integrity, and efficiency. However, numerous proposals in the discussion paper are unbalanced away from fairness and in favour of fast decision-making and ‘firmness’ of state sovereignty (rather than of procedural integrity). Key objectives of the proposals displaying this imbalance appear to be:
- to reduce the workload of the Minister by reducing the number of Ministerial appeals
- to reduce and constrict the avenues and timeframes for appeals, and reducing independent oversight of decisions.
- to increase the powers of immigration officials at the expense of independent or accountable bodies and the current rights of individuals who come into contact with the immigration system.

My main objections to the proposals can be broadly categorised as follows:

1. Using secret evidence in immigration and asylum cases

I object to proposals to use classified information against immigration and asylum applicants with no right of the applicants to respond to those allegations at first instance, nor directly at appeal level [proposals 9.1, 9.2, 9.3]. Similarly, I object to the proposal to use unclassified but potentially prejudicial information against immigration applicants without revealing it to them or giving them a chance to respond to the information. [proposal 5.2] These proposals contravene the principles of natural justice and fairness – administrative justice principles which form the basis of the immigration system and which maintain the system’s integrity.

Shifting the immigration and asylum system towards relying on secret evidence also bears significant practical risks for accurate decision-making, even though the intention of using classified information is to increase accuracy.

Classified information cannot be openly challenged, which will always cast doubt on its accuracy and robustness. The sources of classified information cannot always be assumed to be dependable. Incentivising false and malicious informing is a real risk of these proposals. Unchallenged use of intelligence of questionable credibility from foreign governments is also problematic, as is illustrated by:
a) the arguments employed by US intelligence to wage war on Iraq
b) the ongoing case of Ahmed Zaoui, in which classified information of questionable credibility and robustness may have been provided by foreign agencies actively hostile to the applicant – for example, European security forces and the Algerian government. The progress of this case has done much to publicly undermine the appearance of competency in the NZSIS, and to bring the integrity and fairness of the Section 4a procedures into disrepute, to the point where they will be the subject of a separate review. Given the example of this case, it is bewildering that the Section 4a use of classified information is referred to as a “successful” example that can be applied throughout the immigration and refugee system. [para 545].

There is a significant risk of these proposals breeding an internal culture of impunity and an external culture of malicious informing, damaging institutional credibility all round.


2. Expanding powers of immigration officials at the expense of rights of applicants

I object to proposals increasing the powers of immigration officials to search, detain and arrest suspects [proposals 10.1.2 and 10.1.3], and in general to proposals increasing the powers of immigration officials and the state apparatus at the expense of independent bodies and the rights of those who come into contact with the immigration system. The overall approach of these proposals is stated at para 544: “This approach would clearly shift the weighting of immigration legislation from the individual’s interests to New Zealand’s interests.” I dispute that it is in New Zealand’s interests to erode the rights of people who come into contact with its administrative systems. These measures will also erode public faith in the Bill of Rights and the commitment of the state to uphold civil liberties.

In practise, the expansion of these powers will instil fear and mistrust into migrant populations, and will erode faith in the fairness and integrity of the immigration system. There is a risk that cooperative relations between immigration officials and migrant communities may be damaged, in light of negative historical experiences such as the “dawn raids” of the 1970s.

Expanding search and detention powers carries a risk of conflict with Bill of Rights Act, and of misuse by officials, opening the government up to extensive litigation.

Moreover, the argument for the need for expanded powers of short-term detention is administratively unconvincing, and supported by anecdote, but not statistics, in the discussion document. Assurances that the risk of misuse of expanded powers will be managed by intensive training of special ‘immigration detention’ officials highlights the fact that, as not all immigration officials will be ‘detention officers’, there is still the same potential for there occasionally being no official with powers to detain present at the right moment. It seems far more appropriate to invest in better coordination between immigration officers and the police so the police do their job effectively, rather than training another tier of immigration officials to carry out police work.


3. Eroding the status of permanent residents subjected to deportation and appeals proceedings

I object to proposals that reduce the status of permanent residency within deportation and appeals processes to the same as that of temporary permit holders [proposals 6.2 and 7.2.1]. These proposals show a disregard for the national status of permanent residents currently embodied by the differential treatment of permanent residents and temporary permit holders within the deportation/removal and appeals processes. As the discussion paper states, current differentiations are “made on the basis that a resident whose permit is revoked should have greater rights and interests in remaining in New Zealand than a temporary entrant…” [para 434]. The proposals devalue the status of permanent residents and permanent residency.

Assurances that the well-founded divisions in circumstances and status will still all be taken into account, begs the question as to why all groups should collapsed into one administrative category. If these differences are still all to be accounted for in decision-making, the argument for pressing the consideration of the different categories down one level beneath an overall umbrella category is weak.

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Next in this series: detention policy and international human rights obligations! Wicked-cool fun.