The Transport and Industrial Relations Committee has examined the Immigration Amendment Bill, and recommends by majority that it be passed with the amendments shown.
This bill seeks to amend the Immigration Act 2009 to enhance New Zealand’s ability to manage effectively and efficiently a mass arrival of irregular and potentially illegal migrants, and to make New Zealand a less attractive destination for people-smugglers.
It would establish a definition of “mass arrival group”; allow detention under a group warrant, for an initial period of up to 6 months, of irregular and potentially illegal migrants (other than unaccompanied minors) arriving in a mass arrival group; provide for further periods of detention for up to 28 days with court approval, or for release on binding conditions; and empower the making of regulations to suspend the processing of refugee and protection claims.
“mass arrival group”
The bill would also provide that
•the Immigration and Protection Tribunal was not required to conduct an oral hearing in cases where a second or further claim for recognition as a refugee or protected person had been lodged, and had been declined by a refugee and protection officer
•there was no obligation to consider a third or subsequent claim from the same person (while allowing discretion to consider such a claim if warranted)
•second and further claims could be rejected where there had been no material change of circumstances, or where the claim was manifestly unfounded, clearly abusive, or repeating an earlier claim
•review proceedings could not be taken on a matter being dealt with by the Immigration and Protection Tribunal until the tribunal had made a final decision on all relevant matters
•judicial review proceedings could be filed only by leave of the High Court.
Most of us accept the advice received that New Zealand faces an ongoing risk of a mass arrival of illegal migrants and has been targeted unsuccessfully in the past. With people-smuggling and mass arrivals being a constant problem for some of our nearest neighbours to tackle, New Zealand must implement a range of measures to prepare for any future mass arrival event. People-smuggling not only threatens a nation’s sovereign right to determine who can enter a country, but the criminal activity also puts the lives of vulnerable people at significant risk. While this legislation cannot guarantee a mass arrival event will not take place, it establishes important measures that would allow New Zealand to manage and process members of a mass arrival group, and would, with other measures, act as a deterrent to an unscheduled mass arrival.
We accept that New Zealand is a signatory to a range of international instruments that impose obligations on New Zealand for refugees and protected persons. While most submitters argued the bill does not align with New Zealand’s international obligations, most of us are of the view that necessary safeguards have been built into the legislation to ensure compliance with these obligations. Of particular note is the role that a District Court Judge would have in determining whether the criteria for the grant of mass arrival warrants had been met, including whether the period of detention sought was appropriate.
The question of detention was canvassed by a number of submissions. Detention, in the case of a mass arrival, is for administrative purposes to enable immigration authorities to manage the exceptional case of a mass arrival where the usual processes for dealing with an irregular arrival of migrants could be quickly overwhelmed. Most of us reject the arguments that the detention regime proposed in the bill amounts to mandatory detention. We note that a warrant of commitment could only be granted if such a warrant had been applied for and the warrant was considered by the District Court to be necessary for the reasons set out in new subsection 317A(1)(a). We also note that Article 31(2) of the 1951 Convention Relating to the Status of Refugees provides for restrictions on movements of refugees when necessary. Detention in exceptional circumstances for the purposes of dealing with a large-scale mass arrival is a necessary restriction on movement to maintain New Zealand’s ongoing security and the integrity of our immigration arrangements.
This commentary covers the major amendments that we recommend; it does not discuss minor, technical, or consequential amendments.
We recommend amending clause 12, which would insert new sections 317A to 317E into the principal Act; and schedule 2, which would insert new form 5—Warrant of commitment (mass arrival warrant)—into the Immigration (Certificate and Warrant Forms) Regulations 2010, as follows.
Inserting new subsection 317A(6), which provides a definition of identity information, along with other amendments recommended to new sections 317A, 317B, and 317C, and to new form 5, would make it clear that the persons included in a mass arrival warrant need not be individually named, but must be otherwise identified or described.
Amendments to new section 317B would enable a District Court Judge to treat an application for a mass arrival warrant as a group of applications for individual warrants of commitment if, having considered the matters in subsection 317B(2), he or she was not satisfied that the criteria for the issue of a mass arrival warrant were met.
Amendments to new section 317C would mirror amendments to 317B and would cover applications for variations to mass arrival warrants.
Amendments to new form 5 would provide for the situation where different people under a mass arrival warrant might need to be detained in different places.
We recommend amending clause 14, which would insert new section 324A into the principal Act, to clarify what applications might be made under the section, and how a District Court Judge must consider and determine those applications.
We recommend amending clause 15, which would amend section 403 of the principal Act, as follows.
The amendments to new paragraph 403(1)(ka) would make clear the intention that regulations made under section 400 suspending the processing and determining of certain claims should do so by reference to a set of circumstances or characteristics common to the relevant claims, or to the claimants making them.
New subsection 403(2) would describe the circumstances in which these regulations might be made: that is, where there were problems accessing or assessing information relevant to decisions on the claims to be suspended; or in circumstances where a decision on the claims was unlikely to produce a robust outcome.
The bill as introduced would provide for regulations made under section 400 to expire 6 months after their commencement, if not revoked earlier. The insertion of new subsection 403(3) would clarify that such regulations might specify an earlier expiry date and that they would have no continuing effect after that date.
The New Zealand Labour Party members of the committee support the Government’s right and duty to protect New Zealand’s borders. We also accept the Government has a responsibility to ensure we are prepared for the eventuality of a mass arrival of asylum seekers.
However, we do not support the punitive and unnecessary measures in the Immigration Amendment Bill and the proposed accompanying policy changes. We believe the bill represents a significant shift in direction from New Zealand’s longstanding support of the 1951 Refugee Convention and will undermine our reputation as a positive and constructive global player.
Many of the submitters to the select committee have significant international and local experience in dealing with the human and other rights of asylum seekers. Their evidence has confirmed our view that this bill should not proceed.
Millions of people enter New Zealand every year, tens of thousands obtain student visas, and many more are granted work visas or permanent residency. Our system copes with this with few incidents, and the unlikely threat of a group arrival of more than 11 asylum seekers should not pose a significant problem for the state’s resources and protection agencies.
New Zealand accepts 750 quota refugees a year, which is a tiny proportion of the more than 31 million refugees in the world. In addition around 300 people seek asylum each year, who must face meeting a very high hurdle in proving they should be recognised as convention refugees. Seeking asylum is not some easy ride, as some have suggested, and nor would so-called “economic migrants” meet the test required in the convention.
The New Zealand Labour Party members believe there is a conflict between the bill and New Zealand’s international obligations under the 1951 Refugee Convention (and the 1967 Protocol) and other human rights instruments to which New Zealand is a party.
We also believe that the bill imposes unjustifiable limits on fundamental rights in the New Zealand Bill of Rights Act 1990, particularly in regard to mandatory detention by group warrant, and that it would create a different class of asylum seeker, by virtue of the fact they have arrived in a group of 11 or more people.
New Zealand is obliged under the Refugee Convention to protect the human rights of all asylum seekers and refugees who arrive in New Zealand, regardless of how or where they arrive, and whether they arrive alone or as part of a group.
The cornerstone of the UN Convention is the Article 31 declaration that asylum seekers are not illegal immigrants and should not be pre-judged without due process, nor detained or penalised by virtue of their method of crossing borders.
The important part of Article 31 is that it provides for fair process and, in ensuring this, also gives the signatory nation the legitimate right to deport failed asylum seekers.
As one submitter stated: “This is very much like the criminal law assumption that innocence must be assumed until guilt is proven. While that is often annoying, especially to enforcers like the Police, most of us would not want the consequences of changing it. Yet that is, in effect, what this bill does.”
“This is very much like the criminal law assumption that innocence must be assumed until guilt is proven. While that is often annoying, especially to enforcers like the Police, most of us would not want the consequences of changing it. Yet that is, in effect, what this bill does.”
We believe there has been confusion between legitimate asylum seekers and illegal economic migrants, and thus the unfortunate use of language such as “illegal migrants” and “queue jumpers”.
The stated purpose of the bill is “to deter people-smuggling and to enable the effective and efficient management of a mass arrival of ‘illegal immigrants’ ”.
“to deter people-smuggling and to enable the effective and efficient management of a mass arrival of ‘illegal immigrants’ ”
Research and evidence provided to the committee showed that that mandatory detention of the victims of people-smugglers is not a deterrent and nowhere is this more obvious than in Australia.
From the 1990s to mid-2000s Australia introduced a number of policies aimed at deterring asylum seekers arriving by boat. Despite this, in 2000 and 2001, 94 boats carrying 8,455 people arrived, which is the greatest number of boats and people arriving in Australia in any two-year period between 1976 and 2008.
Punishing asylum seekers does not discourage people-smugglers. The root causes are not in New Zealand, but in the failure of other countries to comply with the UN Convention or to adequately police anti-people-smuggling laws in their countries.
New Zealand is an active player in the Bali process and other international forums and we also have domestic laws to punish people-smugglers under the Crimes Act.
A justification for the bill is that New Zealand “faces an ongoing risk of mass arrival of ‘illegal immigrants’ ”.
“faces an ongoing risk of mass arrival of ‘illegal immigrants’ ”
The assumptions for the bill are based on modelling the impact of a boat carrying 500 people arriving on New Zealand shores, but the bill defines a mass arrival as a group of 11 or more people.
There is a significant difference between the two, and in any case, a boat carrying any number of asylum seekers has never reached New Zealand’s shores.
Given the nature and danger of our coastline, it is ridiculous and overly alarmist to claim that a boat carrying 11 or for that matter, 500 asylum seekers are going to suddenly appear on our shores out of nowhere. There will be significant warning to enable preparation by the authorities for their arrival and the Government has just spent $200,000 on “Exercise Barrier” to test existing systems and facilities.
As many submitters pointed out, the bill discriminates against those who seek refugee status if they arrive by “mass arrival” in contrast with those who do not, and imposes an unjustified limit on the right not to be arbitrarily detained.
The right to seek asylum is not an unlawful act and detention for the mere fact of having sought asylum is unlawful.
There is no distinction in international law between the obligations owed to asylum seekers based on mode of arrival or arrival as a part of a group, yet this bill imposes a distinction of 11 people sufficient to trigger a proposed detention regime.
Using mandatory detention to penalise asylum seekers for irregular entry into a country contravenes New Zealand’s obligations under Article 31 of the Refugee Convention. The UNHCR has confirmed that detention, as part of a policy to deter future asylum seekers, is contrary to the principles of international protection.
The use of detention for an initial 6-month period (and beyond) raises issues relating to the enjoyment of other rights to which asylum seekers are entitled. Evidence from Australia shows the long-term adverse health and social impacts of detaining asylum seekers in this way and New Zealand should learn from this.
International guidance requires detention to be used only where necessary, as a matter of last resort and for the shortest periods possible. The proposed amendments are at odds with international best practice and natural justice.
Apart from any of this, the Australian experience clearly shows that mandatory detention is extremely costly. In 2011 the cost of detention in Australia was $137,317 per year per person. By contrast community-based processing is up to 90 percent cheaper.
We have other concerns with the bill, including the empowering of the suspension of the processing of refugee and protection claims by regulation, the proposed restrictions on family reunification on the basis that a person arrived in New Zealand as part of a “mass arrival”, and the restrictions on bringing judicial review proceedings.
It is important to note that this last provision is not limited to “mass arrivals” but applies across the board to all appellants before the Immigration Tribunal, whatever their status or grounds of appeal. The Government’s justification is that it will “streamline review proceedings”. By circumventing processes that may be inconvenient to the Crown, essential rights for individuals will be eroded.
“streamline review proceedings”
Even in the unlikely event of a so-called mass arrival of 11 or more people occurring, existing legislation already provides for proper process, including detention, if required, but that must be assessed on a case by case basis.
The Immigration Act 1987 has undergone a significant review in recent years with extensive public input and consultation. This resulted in an overhaul of the legislation, the new version of which was passed in 2009. The Immigration Act 2009 demonstrates the careful balance that can be achieved in the immigration space to ensure that rights are protected and our borders protected. It is a highly regarded piece of legislation internationally.
The lessons from Australia are very stark. Their arbitrary detention and management of asylum seekers has done untold harm, not only to the asylum seekers, who have suffered mental and other health deterioration as a result of detention, but it has polarised the people of Australia and contributed to ill-informed debate.
Further, so-called “boat people” have become a political football where no party is prepared to take the risk of being seen as “soft” on asylum seekers.
We are willing to work constructively on a multi-party basis, to make every effort to find a solution that does not involve what we believe is divisive legislation, that will do harm to our international reputation and erode the careful balance that has been achieved by the Immigration Act 2009.
There is no need for this bill.
Members of the Green Party do not support the intent or detail of the Immigration Amendment Bill.
The stated purpose of this bill is to effectively manage the mass arrival of irregular migrants and to make New Zealand a less attractive destination for people-smugglers.
The examples given by the Minister prior to the introduction of the bill, of a freighter carrying 500 asylum seekers that made it to Canada and a recent boat entering Australian waters saying they wanted to come to New Zealand, do not make a mass arrival by boat in New Zealand any more likely.
The freighter that made it to Canada was funded by a large and wealthy ethnic refugee community in Canada. The cost to that community was in the millions of dollars. New Zealand does not have a community large enough or with the disposable income to be able to purchase a freighter to undertake such a trip.
The biggest barrier to a mass arrival coming to New Zealand is our distance and treacherous waters. Plenty of boats have made it to Australia, mostly from Indonesia; none has made it to New Zealand. This is because we are that much further away than Australia and the risk is so much greater to get here.
We have been told that ten people is the largest group our agencies are able to process within existing processes. We find this implausible.
We have been told that this bill is a deterrent against people-smugglers, and yet there is no mention of smuggling or penalty against smuggling in this bill. It is our view that this creates an impression that people fleeing persecution assess which country has the best policies for settlement and direct their smugglers to take them there. It is our view, and that of many presenters, that this misunderstands or misrepresents the common experience of seeking asylum.
None of the submitters who work with or represent refugees in New Zealand supported this Bill.
We heard from people who once sought asylum and people who work closely with asylum seekers who told us that most people entering irregularly by boat are likely to be genuine refugees, and that detention regardless of conditions has a negative impact on the mental health of the asylum seekers and reduces their chances of integrating into New Zealand quickly.
We believe that this bill has already sent a message to existing refugees and asylum seekers that our Government is starting from a point of fear and reluctance to support them. We want to assure refugees and asylum seekers in New Zealand that we stand by our commitment to the Universal Declaration of Human Rights which enshrines our collective right to seek and to enjoy in other countries asylum from persecution.
New Zealand helped draft the Declaration of Human Rights and the right to seek asylum is as important now sadly as it was post world war two. New Zealand only takes up to 750 refugees a year and has not met that target in recent memory.
We are willing to work with other parties to seek consensus on how to address any of the drivers behind the numbers of people seeking asylum in our region and also any realistic administrative challenges to processing significant numbers of irregular entries.
Sadly we believe this bill does neither of these things and in fact creates an unnecessary barrier to integration and an unfounded fear of asylum seekers, which undermines our trust in each other as fellow New Zealanders.
We will continue to seek solutions that provide a real contrast to the persecution and mistrust people have been fleeing.
The facility for group detention for groups over 10, as mass arrivals, for an initial period of 6 months and for further periods of detention for up to 28 days with court approval, is, we believe, contrary to the intent of the Bill of Rights Act and Article 31 of the Refugee Convention to which New Zealand is a signatory.
Article 31 in particular protects asylum seekers from penalty regardless of mode of entry and requires states not to apply any restrictions other than those that are necessary until their status in the country is regularised.
Through the submission process we have come to believe the Government’s position is based on belief that applying for refugee status directly in a UN camp is more honourable than seeking asylum in a convention country without a camp, such as New Zealand. We believe this demonstrates a lack of understanding about the scarcity of camps, and of convention countries in our region.
Because we find the administrative argument implausible we believe detaining a group because they arrived by boat with more than ten people amounts to an arbitrary detention. The Bill of Rights Act clause 22 guarantees the right not be arbitrarily arrested or detained. We do not believe a judicial decision on this, based on uncontested advice from immigration officials, is enough of a check to protect against an arbitrary detention.
Further, we consider the restriction on bringing judicial review proceedings undermines our processes of justice. This provision applies not just to anyone who was part of a “mass arrival” but to all appellants before the Immigration Tribunal. The Government believes this will streamline processing, but evidence was given that the opposite may indeed happen. There was very strong opposition to this on the basis of fairness and the need for people to be able to appeal to an independent perspective earlier rather than later. Several high-profile cases of appeal regarding refugee status have shown the country the importance of the role of appeal. We should not start from the point of assuming people are just delaying their removal.
We also strongly oppose limits on family reunification based on mode of entry. People who have had to resort to the most extreme form of escape should not be penalised further for the “sins” of others.
It is our opinion that this bill is unnecessary and an embarrassment to our history as compassionate global citizens.
The Immigration Amendment Bill was referred to the committee on 3 May 2012. The closing date for submissions was 8 June 2012. We received and considered 33 submissions from interested groups and individuals. We heard 20 submissions.
We received advice from the Ministry of Business, Innovation and Employment.
David Bennett (Chairperson)
Jan Logie replaced Denise Roche for this item of business.