Department of Labour Briefing to the Transport and Industrial Relations Committee: Immigration Amendment Bill

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1 In Confidence 31 May /02668 Department of Labour Briefing to the Transport and Industrial Relations Committee: Immigration Amendment Bill Executive Summary 1. The Immigration Amendment Bill (the Bill) had its first reading on 3 May 2012, and was subsequently referred to the Transport and Industrial Relations Committee. Submissions are due by 8 June The Bill proposes a number of changes to the Immigration Act These include establishing a definition of a mass arrival and introducing mandatory group detention for up to six months on group warrants. It is this second aspect of the Bill which is likely to be the main focus of submissions. 3. More broadly, the Bill will also restrict review proceedings on any matters being dealt with by the Immigration and Protection Tribunal; review proceedings will only be able to be filed by leave of the High Court. The Immigration and Protection Tribunal will no longer be required to provide oral hearings for subsequent asylum claims that have been declined on the papers by a Refugee and Protection Officer. The obligation to consider third or further protection claims from the same person will also be removed. 4. The Bill has been drafted to comply with the New Zealand Bill of Rights Act (NZBORA). This includes ensuring the Bill is explicit about the purpose of group detention, and specifying that a District Court Judge must only issue the group warrant if satisfied it is necessary in all the circumstances. The judge can also vary the duration of the warrant. 5. This paper includes a comparison of proposed New Zealand legislation with Australian and draft Canadian legislation in respect of mass arrivals. It also discusses the current numbers of refugees accepted by New Zealand through its quota programme. The paper concludes with a brief discussion of the likelihood of a mass arrival in New Zealand. An arrival in 2010 in Canada has had significant impacts on their refugee processing mechanisms. Several asylum seekers from maritime ventures have been deported from Canada due to security concerns. Select Committee Process 6. On 3 May 2012 the Immigration Amendment Bill had its first reading. The Bill was supported by the National Party, Māori Party, Act and United Future, and opposed by the Labour Party, Green Party, New Zealand First and the Mana Party. 7. The Bill was referred to the Transport and Industrial Relations Committee. Submissions are due by 8 June 2012 with a report due by 10 September Based on available information, submissions are likely to be received from a range of interested stakeholder groups, including: a. Office of the United Nations High Commissioner for Refugees b. Amnesty International c. Refugee Council of New Zealand. 1

2 Policy rationale for legislative changes 8. New Zealand has been targeted by maritime people smugglers in the past, and there is a risk of being targeted again in the future. People-smuggling, particularly by sea, offers considerable profits to organisers. It places the lives of vulnerable people at significant risk and needs strong deterrence mechanisms. 9. Other countries, including Australia and Canada, have experienced the arrival of vessels carrying large numbers of illegal immigrants. This activity has significant security and resource implications for destination countries. It can also overwhelm or undermine administrative processes for determining asylum claims, given the large number of claims made at one time. Amendments to the Immigration Act 10. The Bill will introduce the following changes: Definition of a mass arrival 11. A mass arrival, as established in the Bill, will be defined as a group of more than 10 people, each of whom came on board the same craft (either sea vessel or plane), or the same group of craft at the same time, or within such a time or in circumstances that indicates they all arrived together, or intended to do so, as part of one group. The definition is needed to deter people smugglers from deliberately sending people in small groups over a short space of time. Mandatory detention for up to six months (for those who are not unaccompanied minors) 12. The Bill allows for the detention for up to six months on group warrants for those who arrive as part of a mass arrival and who are not unaccompanied minors. A group warrant can only be obtained if the grounds for a group warrant exist. Exceptional circumstances could be taken into account in individual cases. 13. Extension of the mandatory period will be possible for up to 28 days at a time (as directed by a District Court Judge). Alternatively asylum seekers could be released into the community on conditions. 14. The Bill provides the Court with the discretion to set the initial term of detention (up to six months) and the ability to release an individual on conditions: a. once that term expires, or b. where the Department applies for a variation of the warrant of commitment for that person. Mandatory group detention likely to be the focus of submissions 15. Public comment around the Bill has largely focused on the issue of detention for mass arrivals, and this is likely to be the subject of a significant percentage of submissions. 16. Submissions may argue that mandatory detention is not consistent with section 22 of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides that people should not be subject to arbitrary arrest or detention. 2

3 17. The Bill complies with the NZBORA, as it: is explicit about the purpose of group detention; states that a District Court Judge must issue the warrant (only) if satisfied it is necessary in the circumstances; and allows a District Court Judge to vary the duration of the warrant if the purpose of detention can be achieved in a shorter period of time, based on regular reviews following the initial warrant decision. 18. Submissions may also argue that group warrants contravene the principle that asylum cases ought to be treated individually. Group warrants will, however, be used for administrative purposes, not to be punitive. Asylum claims (for refugee or protection status) will continue to be determined individually. Policy rationale for mandatory detention 19. Overseas experience shows that many of those who arrive in a group will have no travel documents or identification. If the Department is unable to confirm a person s identity then it cannot confirm whether they are likely to pose a risk to national security. Further, it is more difficult to confirm the person s claim. For example, it is common for crew (complicit in smuggling) to pass themselves off as asylum seekers. 20. If members of a mass arrival were unable to be processed for a warrant as a group then documentation would have to be completed for each individual separately, and individual decisions made as to whether each person should be detained. In the event of an arrival of up to 500 asylum seekers, as other countries have experienced, this would pose a significant administrative burden, both on staff in the Department, and the Courts system. Minimising the administrative burden frees up officials to concentrate efforts on processing and determination of individual claims. 21. Mandatory detention will be for a purpose allowed for in law. As such, it will not constitute arbitrary detention. Further, judges will have discretion to impose a shorter period of detention. A shorter period may be imposed if the judge feels it to be more appropriate and sufficient in the circumstances, is in the public interest, and is consistent with the need to maximise compliance with the Immigration Act Limited access to judicial review 22. The Bill will restrict review proceedings on any matters being dealt with by the Immigration and Protection Tribunal until the Tribunal has made a final decision on all relevant matters. Judicial review proceedings will also be able to be filed only by leave of the High Court. 23. Restricting access to judicial review until after a decision has been made by the Immigration and Protection Tribunal is intended to prevent significant delays to the full processing of particular claims. It may, however, be viewed by some submitters as limiting rights to justice. 24. The restriction will only prevent an application for judicial review while the matter is before the Immigration and Protection Tribunal and awaiting determination. It will not limit the avenues of appeal (i.e. appeal to the High Court on points of law and the Court of Appeal on the facts). The restriction replicates the Employment Relations Act The provision enables all relevant information to be considered by the specialist tribunal before it makes a decision. That decision may then be challenged by appeal or 3

4 review, if leave is granted. The provision prevents pre-emptive attempts to interfere with the decision-making process. Requiring review proceedings to be filed by leave of the High Court. 26. There are two forms of legal challenge currently permitted in the High Court: judicial review alleging an error of law and appeal on a question of facts. The Amendment Bill will provide consistency in the way that the two forms of legal challenge are dealt with. To be consistent, applications for judicial review should also require leave. 27. Providing consistency between the two forms of legal challenge may be considered by some to be contentious. This is because the net effect will be that an application for judicial review to the High Court will no longer be as of right. 28. However judicial review is not generally excluded and the High Court will control, through the leave requirement, what legal challenges of immigration decisions may be pursued in that court by appeal and/or judicial review. Either way, an avenue for legal challenge remains. Additional restrictions on subsequent claims 29. Sometimes individuals whose refugee or protection claims (asylum claims) have been declined will lodge subsequent claims. At present, if their subsequent claim has been decided on the papers by a Refugee and Protection Officer, they must be interviewed by the Immigration and Protection Tribunal if they appeal. Unfounded subsequent claims are sometimes made to extend an individual s time in New Zealand. 30. The Immigration and Protection Tribunal will no longer be required to provide oral hearings for subsequent asylum claims that have been declined on the papers by a designated Refugee and Protection Officer. The obligation to consider third or further protection claims from the same person will also be removed, subject to discretion, and second and further protection claims may be rejected when there has been no material change of circumstances, or the claim is manifestly unfounded, clearly abusive, or simply repeats the earlier claim. Power to suspend the processing of asylum claims 31. The Bill will enable the processing of asylum claims to be suspended by regulation for specified classes of people. This power may be needed, for example, to provide flexibility where reliable country information is not immediately available to inform decision making. Regulations would only be prepared once information on the specified classes of people was known, and would be subject to the Regulations Disallowances Act Suspension could be used only in a limited number of circumstances, and would not remove the requirement to process the claim at a later date. Policy matters outside of Bill 32. The Minister of Immigration has also announced changes to policy settings, which do not require any changes to the Immigration Act 2009, and subsequently are outside the scope of the Amendment Bill. The changes to policy include: Asylum seekers granted refugee or protection status following a mass arrival will be granted a three year temporary visa in the first instance, rather than being able to apply for a permanent resident visa immediately after their claim is approved. 4

5 At the end of the three year period their claim will be reassessed. If they are found to still require protection they will then be able to apply for and be granted residence. Once granted residence they will be able to support the applications for residence of their immediate family (i.e. partner and children). However, they will not be able to sponsor extended family members, as those granted refugee and protection status, and who do not arrive as part of a mass arrival, are able to do. 33. While these matters are policy decisions, and not changes to legislation, you are likely to receive submissions on them. This is because the policy changes are likely to be contentious, as they both provide less certainty for the asylum seeker in the immediate future, and limit the ability of the asylum seeker to reunite with their wider family. 34. People smuggling syndicates are well aware of destination country policy settings. The changes to policy settings are considered to be an important deterrent to a mass arrival. Asylum seekers may choose not to endanger their lives by attempting to travel to New Zealand by sea if they know they must wait for three years and have their claim reassessed before they can apply for residence. Likewise, they may choose to explore other legitimate channels for immigration if their ability to sponsor extended family for residence is limited. Refugee statistics Quota Refugees 35. New Zealand accepts 750 refugees (plus or minus 10 per cent) through its Refugee Quota Programme per year. The programme is made up of the following categories: General protection 450 places, including up to 300 family-linked and up to 35 emergency places Women at risk at least 75 places Medical/disabled up to 75 places Emergency situation up to 150 places. Asylum claims (spontaneous refugees) 36. In comparison with other refugee-receiving Western states, the numbers claiming refugee and protection status in New Zealand are very low. Over the last five years New Zealand has received on average around 300 asylum claims per year. The main nationalities claiming refugee status in recent years have been from Fiji, Iran, Sri Lanka and China. Most applications are submitted onshore. The number of claims lodged each year varies. Between 2007 and 2010, 895 claims were lodged, with an approval rate of 28.6 percent. How likely is a mass arrival in New Zealand? 37. In the financial years 2005 to 2011, around 6,500 people were turned around at the border and refused entry to New Zealand. In the 2010/11 financial year alone, 684 people were turned around, and 149 were stopped before they were able to board a plane. 5

6 38. While all of these figures relate to arrivals by air, not by sea, recent events show that a sea arrival is not impossible, and that maritime voyages are being planned. An example of this is the group of Chinese nationals who claimed refugee status in Australia, but who had originally signalled their intent to continue travelling to New Zealand by boat. 39. A further example of the risks posed of a mass arrival is the arrival of a steel-hulled ship in Canada in August The ship had sailed from Thailand with 492 people on board. All claimed asylum, and required detention while their identity and any potential security risks were investigated. 40. Refugee hearings for some of these asylum seekers are still being considered. Several passengers have been ordered to be deported, due to security concerns. The Canadian experience shows that a mass arrival is not out of the realms of possibility, and that effective measures need to be in place to handle one should it occur. A steelhulled ship would be able to travel to New Zealand. 41. The table below provides details on ventures which have been intercepted, failed to reach New Zealand, or were halted at source. Details of all incidents are publicly available. Date May-July 2002 July 2002 November 2004 Details A small Vietnamese fishing boat carrying 34 passengers reportedly spent three months travelling around the Java sea. The crew claimed to be heading to New Zealand but the vessel did not make the trip. Vessel from Sri Lanka, carrying 56 passengers, was intercepted while reportedly en route to New Zealand when it called into Dili, Timor-Leste to resupply. Vessel reportedly intercepted in Sri Lankan waters with 100 passengers on board after the arrest of two organisers, who claimed the vessel was headed to New Zealand Sri Lankan vessel was intercepted by local authorities carrying 100 passengers reportedly heading to New Zealand March 2009 August 2009 April 2012 MV Duma intercepted by Australian authorities in Torres Strait. The fifty passengers claimed their destination was New Zealand. Sri Lankan authorities reportedly stopped 32 passengers on a beach near Colombo who claimed to be intending to sail to New Zealand. SV Rahmani was intercepted in Darwin with ten passengers who claimed they were en route to New Zealand. 6