This Supplementary Order Paper amends the Immigration Bill. Most of the amendments are of a minor, typographical, or technical nature (for example, cross-references and inconsistencies in language within the Bill are corrected). In addition, there are some more substantial amendments, including the amendments discussed in the following paragraphs.
Clause 4B describes how time frames are calculated in relation to making applications or for lodging appeals under the Act. The amendment to this clause describes how time frames are calculated for lodging appeals if another department is responsible for providing administrative support to the Immigration and Protection Tribunal. In this case, the period between Christmas and New Year will not count when calculating the time frames for lodging appeals.
Clause 7 of the Bill is amended to reflect the intent that generally a New Zealand citizen will not hold a visa. The amendment recognises that there are some people who are New Zealand citizens by operation of law, but who will have no evidence to prove that is the case (as they have not registered or sought an evidentiary certificate from the Department of Internal Affairs). This class of person may hold a visa.
New clauses 37D and 41D are inserted to clarify that sponsorship may be a condition of a visa. If sponsorship is imposed as a condition of a visa, this amendment clarifies that a visa holder may become liable for deportation if a sponsor fails to meet his, her, or its undertakings.
Clause 125 of the Bill is amended to provide that a claim for refugee status must not be accepted for consideration if the refugee and protection officer is satisfied that circumstances related to the claim were brought about by the claimant acting otherwise than in good faith and in order to create grounds for recognition as a refugee. The amendments to clause 125 also provide that actions of other persons do not mitigate the claimant’s actions in this respect. Clause 176 is amended to provide a right of appeal against such a decision by a refugee and protection officer, and new clause 176C is inserted to set out the way in which the Tribunal will determine these appeals.
Clause 130(1) of the Bill limits the situations in which a refugee and protection officer may consider a subsequent claim for refugee status. This clause is amended to reflect the amendments made to clause 125. Clause 178 of the Bill sets out how the Tribunal must determine appeals against the refusal of a refugee and protection officer to consider a subsequent claim by a person to be recognised as a refugee. This clause is also amended to align it with the amendments to clauses 125 and 130.
Clause 140 of the Bill currently requires confidentiality to be maintained in relation to claimants, refugees, and protected persons (and the particulars of their cases) while also allowing disclosure of information in certain circumstances as appropriate. However, the clause allows information to be disclosed where the claimant or person concerned has expressly waived his or her right to confidentiality. Clause 140 is amended to allow information to also be disclosed where the claimant or person concerned has impliedly waived his or her right to confidentiality through his or her words or actions. This amendment reflects the status quo under the Immigration Act 1987. Clause 140 is further amended to allow the chief executive and the Attorney-General to publish certain refugee and protection decisions if they determine that publication is in the public interest and would not endanger the safety of the claimant or any other person.
The Transport and Industrial Relations Committee recommended in its report an amendment to the Bill to empower the Minister or an immigration officer to cancel a deportation order served on a person who is unlawfully in New Zealand. New clause 165A(1) gives effect to this recommendation.
The SOP amends clause 191A, which sets out the effect of a person having his or her liability for deportation suspended. The amendment clarifies that if the Tribunal suspends a resident's or permanent resident's liability for deportation, the person will not remain in immigration detention or be subject to residence or reporting requirements or release conditions.
The SOP inserts new clause 239B. This clause authorises the Immigration and Protection Tribunal and the courts to appoint special advisers, as well as counsel assisting the court, for the purposes of any proceedings before the Tribunal involving classified information. New clause 239C provides for the payment of special advisers and counsel assisting the court.
Clause 265 allows for information matching to enable the Ministry of Social Development to verify certain matters related to social security benefits. The SOP makes some technical amendments to this clause and amends the information that can be disclosed in order to better reflect the new provisions for visas, deportation, appeals, and refugee and protection status determinations in the Bill.
Clause 285 of the Bill relates to an application for a further warrant of commitment that, if granted, would result in a person being continuously detained under consecutive warrants for a period of more than 6 months. The amendment to subclause (2) clarifies that a District Court Judge must issue a further warrant of commitment if satisfied that—
Subclause (10) currently defines exceptional circumstances to exclude the period of time a person has already been detained under Part 9. This SOP recasts that clause to include an additional matter: the possibility that a person's departure or deportation may continue to be prevented by the person's action or inaction.
The Bill allows for fees to be prescribed and for administration charges relating to the Immigration and Protection Tribunal to be collected. The SOP amends these provisions (clauses 351 and 352) so that if another department is responsible for administering the Immigration and Protection Tribunal, that department can receive fees and charge for services in relation to the Tribunal. The SOP also amends clause 343 to allow the chief executive of that department to approve and issue forms relating to proceedings in the Immigration and Protection Tribunal.
The SOP inserts a new Part 13 into the Bill. This Part deals with amendments to the Immigration Act 1987. New clause 432 inserts a new section 141ABA into that Act. The section authorises the disclosure of information by the Department of Labour to an employer to enable the employer to verify that a person is entitled under that Act to work in the employer's service.
Clauses 3(2)(e)(ii), and (f), 4(1) (the definition of appeal on humanitarian grounds), 5D, and 142 are amended, and new clauses 165A and 432 are inserted, to ensure that certain decisions (for example, decisions about whether or not a person liable for deportation (or removal under the Immigration Act 1987) from New Zealand should be deported (or removed)) are decisions made by immigration officers implementing the practical elements of the final stage of removal of the person and do not require any test or any particular test. In particular, immigration officers are not required to apply the test set out in section 47(3) of the Immigration Act 1987 or in clause 186 of the Bill, as the case may be, when considering cancellation of a removal order or a deportation order. At this stage, the essential legal issue is whether the person is in New Zealand unlawfully. These amendments overturn the future effect of most of the key findings (including the findings that required immigration officers to apply the humanitarian appeal test and imposed duties of inquiry on them) in the recent Supreme Court decisions Ye v Minister of Immigration; Qiu v Minister of Immigration  NZSC 76, and Huang v Minister of Immigration NZSC77, all judgments being delivered on 20 July 2009. The amendments, however, do not affect the position of the litigants in those decisions.
The SOP amends clauses 25(1), 36(2)(cb), 37, 55A, 59(1)(c)(ii), 61, 62, 65, 87, 89, 90, 91, 92, 95, 96, 103, 306, 359, 360, and 430 and inserts new clauses 87A, 87B, and 343AB. These amendments are to facilitate passenger movement under the Bill to support, for example, any future government decisions to facilitate simplified passenger travel between New Zealand and Australia. The amendments include changes to the visa and entry permission provisions so that a visa allowing stay in New Zealand (for those subject to a visa waiver) and entry permission can be applied for and granted offshore, prior to the person concerned boarding a flight to New Zealand. Amendments are also made to authorise the chief executive of the department responsible for the Bill to designate overseas places (for example, ports, airports, or offices of the New Zealand Government) as places where entry permission can be granted before a person travels to New Zealand.
The SOP amends clauses 29, 261(8), 267(10), 270, and Schedule 3 and inserts new clauses 266A, 267A, and 267B. These related amendments—
insert information disclosure provisions to enable specific government agencies to check the immigration status of consumers or potential consumers of health and disability support services and the identity, character, or immigration status of certain persons.
Clauses 117, 119, and 175 are amended to clarify that decisions about refugee status will be made in accordance with the Act.
The SOP replaces the amendment to the Parole Act 2002 in Schedule 3 of the Bill with an amendment that allows prison inmates who are liable for deportation to be deported before their sentences end.
Schedule 5 of the Bill has been redrafted to make it more accurate. This schedule sets out what visa a person is deemed to hold under the Bill in the circumstances where the person was the holder of a visa or permit under the former Act immediately before the commencement of clause 362 (being the clause that repeals the Immigration Act 1987).