Immigration NZ could ‘demand identification papers from everyone’ says civil liberties group

Source: Radio New Zealand

• Submissions on legislation highlight fears about compliance powers, appeal rights
• Law Society said its views were not properly represented in regulatory impact statements
• Lawyer questions how staff will identify what makes someone look like they might be breaking immigration rules

The Law Society says an immigration bill extending search powers and curtailing appeal rights should not proceed in its current form.

Campaigners and immigration lawyers said proposed compliance measures were reminiscent of random stops and risked breaches of the Bill of Rights Act.

The immigration minister Erica Stanford said immigration officers would only be able to demand identification when they already have a legitimate reason to be at a site and a reasonable basis to suspect someone is liable for deportation or breaking immigration rules.

“It empowers immigration officers to demand identification papers from everyone, with only a “good cause” threshold, and anyone who fails to comply, citizen or not, will be arrested,” said a submission from the Council for Civil Liberties on the immigration bill. “The Council believes that the time has come to end ‘immigration police’ within our borders.”

The council recommends changing wording from a “good cause to suspect” to a “reason to believe” standard for compliance officers demanding identification. It calls for a new Bill of Rights assessment, saying the current one put immigration’s ‘core duties’ over people’s rights.

The Law Society, which was consulted ahead of the bill being introduced, said its objections were not well represented in regulatory impact statements. “While some aspects of this consultation are referenced in materials relating to this Bill, they do not clearly identify where the Law Society objected to proposed changes, or reflect concerns that were raised by the Law Society.”

Its submission said further policy work was needed to avoid “disproportionately harsh and unfair outcomes” for visa holders, and inconsistencies with New Zealand’s obligations under domestic and international law. Limitations on natural justice in appeal rights were not identified or discussed in the justice ministry’s advice on the bill’s consistency with the Bill of Rights Act, and criteria for searches were too broad.

From this month, migrants face automatic deportation liability if they get a discharge without conviction for less serious crimes such as traffic offences. Under the new proposals, migrant workers, students and visitors would have no right of appeal to the Immigration and Protection Tribunal (IPT) for those offences, and residents’ deportation liability would increase from the current two years after gaining residence.

The Council of Trades Unions’ submission said an offence with a maximum sentence of three months would seldomly involve a custodial sentence. “Suffering deportation on top of a minor sentence for a lower-level offence could be seen as disproportionate, and extending the time this can affect a resident visa holder out to five years is unhelpful.”

Lawyer Richard Small, of Pacific Legal, said the changes were a “hammer looking for a nail”. “You’re getting into people who end up in deportation from, not quite a parking ticket, but just one step above that, such as obstruction. These are minor, minor offences. There’s no proportionality. There will now be no humanitarian appeal.”

He said abolishing the right of appeal to the IPT for overstayers who were previously on visitor visas left no accessible recourse for people with humanitarian reasons to stay.

“The ombudsman now has a very minimal role, and any suggestion that the ombudsman looks at humanitarian factors is misguided. All they look at is Immigration New Zealand’s record-keeping, and that they have made a note on paper of humanitarian obligations. If they have done that, they will not look further.

“So the idea that the ombudsman provides a meaningful remedy is very misplaced. They don’t review humanitarian circumstances. We’ve seen a 90 percent plus drop in the ability to go to the ombudsman since a law change in 2015 took away reasons for unlawful decisions. So that is not a real option. And the minister has absolute discretion. People don’t get reasons for decisions there.”

Random stops

He said greater powers for compliance officers came despite concerns about their existing ones.

“We have had cases of residents arrested or detained because of mistaken identity. It is a real thing. Again, we have no transparency, no statistics, and no independent oversight, effectively, of these actions. They may start with a good intention, but they tend to stick and be reapplied in the future.

“And it really does bring back to mind random stops, because if there’s no threshold to suspect someone, what kind of characteristics will compliance think might make a person liable for deportation?”

Lawyers had advocated for compliance officers to use digital recording on their work cell phones to ensure they use interpreters, tell people their rights and act fairly, but that had been rejected, he said.

Immigration New Zealand (INZ) national compliance manager Fadia Mudafar said staff make written notes of what occurs.

“Clients are always offered an interpreter, and their rights are explained to them to ensure full understanding and transparency. There are no plans to make it a requirement for a compliance officer, during deportation activity, to record their interactions on a smartphone. Compliance officers use notebooks to record observations as well as documenting what was said and what was done. Notes are recorded as soon as practicable and copied onto the client’s file.

“If a person is detained, they are advised of their rights at the time of detaining by both the compliance officer and by police (when custody is transferred from compliance to police).”

Misleading information

‘Broadening the net’ to catch and punish people who provide false or misleading information to immigration authorities overlooked INZ’s own role, said Small.

He said INZ did not discharge its obligation under the Immigration Advisors Licensing Act not to accept applications from unlicensed Pacific advisors, such as travel agents.

“It affects people who had an expired conviction in another country where the unlicensed travel agent never discloses that. That will now be interpreted as fraud. There’s a whole range of stuff.

“Someone who didn’t understand the concept of partner in their Pacific cultural context, and did not tick that they were in an early-stage relationship until they were officially married because of cultural and religious beliefs. Those people are going to be criminalised.”

INZ deputy chief operating officer Jock Gilray said travel agents are able to submit applications on behalf of applicants and perform administrative tasks as part of that process, and it was aware that was a common practice in the Pacific.

“However, travel agents cannot provide immigration advice to the applicant. Where we are concerned they have offered immigration advice, we remind agents of their responsibility. If this behaviour continues, we can take steps to ensure they do not continue this behaviour, including refusing to accept applications.”

Makes existing power workable

Stanford said a ‘reasonable suspicion’ for requesting identification would depend on what staff see when they arrive at premises, when they already have a legitimate cause to be there.

“For example, that could be as if an individual tries to hide or escape when immigration officers arrive – previously Immigration has not be able to do anything about this. The proposed change is not a general stopping power, does not change standard deportation processes, and doesn’t allow officers to stop random people or conduct street checks.”

The change is intended to make an existing power workable, she said.

“It is not correct that failing to comply with a request for identification would result in arrest. Immigration compliance officers do not have powers of arrest. If someone does not comply with the immigration officer’s request without reasonable excuse, they could be temporarily detained for up to four hours.

“The immigration officer is required to warn the person of this when they are asking for their identity-based information or documents and even at that point, detention is not automatic and is not a decision that is taken lightly. Compliance officers must record in writing when they use these powers and why they had good cause.”

The bill was assessed as being consistent with the Bill of Rights, and additional proposals would go through an assessment if they were included in the legislation.

Deportation liability could still be cancelled or suspended by decision makers, she said.

“Some offences that may appear minor, like obstruction, can carry a maximum penalty of up to three months’ imprisonment, meaning they could meet the threshold for deportation liability.”

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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand