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Cosgrove: Speech to Immigration Law 08 Conference

Hon Clayton Cosgrove
Minister of Immigration

23 July 2008 Speech

The Immigration Change Programme – speech to the Immigration Law 2008 Conference

Venue: Sky City Convention Centre, Auckland
Time: 9am, Wednesday 23 July 2008

Janice Taylor, from Lexis Nexis who organised this event; Roger Haines QC, Deputy Chair of the Refugee Status Appeal Authority; my Parliamentary colleague the Hon Dr Lockwood Smith, and former Labour Minister, the Hon Matt Robson; Allan Mackey, the Chair of the Refugee Status Appeal Authority; the Chief Ombudsman Beverly Wakem;
Professor Richard Bedford from the University of Waikato; special guests; ladies and gentlemen. Good morning to you all.

Thank you Roger for your introduction, and thank you Lexis Nexis for the opportunity to be here today.

I appreciate this opportunity to bring you up to speed with the many positive developments occurring across the immigration portfolio, and to share with you the government’s long term vision for this sector.

I would like to take a few minutes to talk about why immigration is vitally important to New Zealand. And how the government’s Immigration Change Programme recognises that importance, and is responding to the need to have an immigration system that is “fit for purpose,” so we can manage the risks, and reap the benefits, that immigration brings now and into the future.

This week has seen an important milestone with the reporting back of the Immigration Bill by the Transport and Industrial Relations Committee.

Given that the Bill was reported back only on Monday, many of you may not have had the chance to review it in any detail yet, although I am sure you have been involved throughout the Act review process. So, I will take this opportunity to update you on a few of the key changes in what is the biggest rewrite of immigration law for two decades.
Why immigration is vitally important to New Zealand
First however, let us look to the big picture of immigration in the international context, the global risks associated with immigration, and how immigration contributes to New Zealand.
Immigration in the international context
We truly do live in a global world. Our exposure to the choices we have regarding where we live, work and play, has never been higher.

As part of this trend we are seeing increased global competition for workers. Demand for workers is increasing as ageing populations in developed countries retire. By 2050, one third of people in developed countries will be over 60 and the proportion of New Zealanders over 65 will double.

With increasing international competition there are global shortages in a greater range of occupations. To put this in context, in New Zealand, every year from 2000 to 2006 there was an average of 50,000 new jobs added to the total job stock. With new jobs continuing to grow, skill shortages are a concern and if left unchecked, this shortage can threaten economic growth. Immigration obviously plays a key role in helping employers meet skills shortages if there are not New Zealanders available to fill positions.

Competition for workers is coming from countries like those in the European Union, not only from our traditional competitors like Australia and Canada. Because of all this, and the greater availability of international travel, people are increasingly mobile. Just look at the statistics.

In 1970 there were 82 million migrants globally. Fast forward to 2005 when there were nearly 200 million migrants. And we expect the numbers will keep climbing. Migration is also becoming less static and more temporary.
Global risk management associated with migration
This increased movement of people around the world brings both opportunities, and greater risks. Those who want to challenge border security are becoming increasingly sophisticated and increasingly savvy about the different immigration laws. This in turn means New Zealand is facing more complex risks.

Robust processes are required to ensure the safety and security of New Zealand and to ensure we do not become a “soft touch.”
Immigration grows New Zealand

Immigration is also about opening the door to the people we want and need. The government recognises it must offer a world-class immigration service in order to keep attracting these migrants, as well as maintaining secure borders and fulfilling our immigration-related international obligations.

Immigration is a vital ingredient in New Zealand’s ongoing economic development. Migrants drive innovation, give our businesses international connections, and provide a range of skills to transform our economic landscape.

Immigration makes a major contribution to the workforce. Migrants made up 60% of NZ’s workforce growth in the past five years. We can see this contribution played out in immigration decisions, as between 2000/01 and 2006/7 the numbers of temporary work visas issued increased by an average of 19% every year. In 2006/07, temporary work permits were issued to 115,500 people, and this year, as of 9 June there were more than 85,000 people on temporary work permits in New Zealand.

The contribution of immigration to New Zealand tourism is also important. Tourism expenditure in New Zealand was $18.6 billion in 2006.

The government also recognises the importance of export education to New Zealand's economic development. Export education is the fourth largest export industry in New Zealand, and is worth over an estimated two billion dollars in foreign exchange each year.

New Zealand is only one of a range of host countries that welcomes international students, and must compete with countries such as Australia, Canada, the United Kingdom and the United States to attract and retain these students in New Zealand post-study.

Over the last few years, like other host countries, New Zealand has seen a significant increase in the numbers of international students. In 1997/98, approximately 20,000 international students were issued student permits. By 2006/07, this number had increased to 67,147.

Along with temporary workers, tourists and students, immigration grows New Zealand by providing permanent residence. New Zealand receives about 25,000 applications for residence each year. Since it was introduced in 2003 more than 77,000 of New Zealand’s permanent residents have been approved under the Skilled Migrant Category policy alone.

I am pleased to note that research shows that 94% of permanent residence principal applicants and 67% of secondary applicants are in paid employment.

These figures are particularly impressive at a time when there has never been such a globally competitive and mobile labour market.

Even more encouraging is the emerging trend we are seeing of the growing link between temporary and permanent migration. The vast majority of residence applicants (89 percent) previously held some form of temporary permit – this equips them to make well informed choices about settling in New Zealand and helps ensure they integrate into our communities.

The Government’s Immigration Change Programme

All these facts and figures highlight the importance of immigration, and explain why the Government has been working to deliver a comprehensive Immigration Change Programme.

The Change Programme has three key components:

• Legislative change. This includes the Immigration Bill and the Immigration Advisers Licensing Act, the latter which was passed last year;
• The Policy Framework – changes in this area are to ensure that New Zealand can adapt to changing circumstances.
• And delivery change.

I will talk about delivery change first.

Late last year Cabinet made a decision on its ten ‘top priority’ proposals for immigration, and asked the Department of Labour to prepare a business case based around those proposals. This business case will provide greater detail about cost estimates and the benefits to New Zealand of implementing each of the proposals.

The ten proposals that we decided on cover both the ICT components of our immigration business, as well as security and service delivery aspects.

The broad strategic direction for security and service delivery is to move from a reactive, border-focussed activity to one that proactively seeks the migrants we want, keeps out those we don’t, and where we make consistent immigration decisions based on risk and value. This is backed by our settlement support operations, which ensure the migrants we have attracted here feel welcome, integrate well into our society and make New Zealand their permanent home.

Along with work on delivery change, the government is always working on policy change. The first consideration for policy is always ensuring employment is for New Zealanders first. Because of this, immigration must be a process that can be changed to reflect the global and national environment. Our ability to adapt quickly and change is one clear advantage of the structure of our immigration system. It is one that is increasingly envied internationally.

To that end the government is making changes to temporary work policy that will encourage the recruitment of highly-skilled overseas workers and better protect the jobs of New Zealanders who work in lower-skilled professions. The new Essential Skills policy will replace the current General work policy from 28 July 2008.

Other recent skills-focused policy changes we have been making include the Recognised Seasonal Employer (RSE) scheme for temporary workers in the horticulture and viticulture industries. There has been interest in replicating this type of policy by our Australian neighbours. This highlights the competition we are facing in attracting the workers we need.

The RSE scheme is still bedding in, and the results to date are encouraging. Over 6,300 workers have been approved to come to New Zealand over this year and next, 80 percent of whom are from Pacific Islands Forum countries. Horticulture and viticulture leaders have welcomed the scheme to ease labour shortages, while our neighbours in the Pacific are pleased with the opportunities for their people.
Legislative change
Underpinning these policies is our immigration law. Legislative change is also a key component of the Immigration Change Programme.

An important achievement this year has been the implementation of the Immigration Advisers Licensing Act. Since May the Immigration Advisers Authority has been accepting applications from people wanting to be licensed as immigration advisers. As you know it will be compulsory to be licensed as an immigration adviser onshore from May 2009, and offshore from the following year.

Many cases have been reported in the past of migrants and refugees who had been seriously disadvantaged through poor or fraudulent immigration advice. Migrants will now be protected against such unprofessional behaviour and advisers will benefit from new continuing professional development programmes.

A special session will be held on the Immigration Advisers Act tomorrow, which is just part of the government’s programme to offer a world-class immigration service.
The Immigration Bill
All the points I have made today highlight that New Zealand has to stay in the race with immigration legislation which allows us to build a modern immigration system. The Immigration Bill provides that framework by balancing the rights of the individual and the national interest. Importantly, it also enables us to successfully fulfil our immigration-related international obligations.

I acknowledge this balance has not been an easy one to achieve. By its very nature, immigration has a diverse range of stakeholders who hold a diverse range of views, and it is impossible to satisfy everyone. This Bill however does strike a fair balance.
Key stakeholders
To give you an idea of this diversity, some of these stakeholders include key Crown Entities. They include immigration lawyers, and immigration advisers, like yourselves who have submitted on the Bill during the Select Committee phase. Other stakeholders, of course, are employers, businesses, and the organisations that represent them.

The most important group of stakeholders is the public, and the organisations that represent them. It has been important to me that this Bill becomes a piece of legislation that works for all New Zealanders.

All the stakeholders who made submissions on the Bill during the Committee process have made a valuable contribution. I think it is important to get feedback from the public, interest groups and those with either professional or personal experience in immigration – or even none at all - but who have a point of view that they want heard.
Key changes and areas of interest
The Select Committee has made several changes to the Bill. The key areas of change in the Bill relate to the classified information system, and refugee and protection system, which I will talk about today. I will also cover other key provisions in the Bill relating to biometrics, visas and permits, appeal provisions, and discretionary decision making.

There haven’t been a large number of “key changes” in the Bill in relation to biometrics. Importantly, however, the key recommendations of the Privacy Commissioner have been taken on board.

Most of you will be aware that the biometric provisions are “future-proofed” provisions that will only come into effect by Order in Council. This means they will only come into force after the system for the collection, storage and use of biometrics has been fully considered and scoped, and the procedures and protocols for their use have been further scrutinised by Cabinet.

There have been some misunderstandings about the biometric provisions in the Bill so I will briefly explain them.

Purpose of the biometric provisions

Identifying people is a crucial element in facilitating the travel to, entry, and stay of people in New Zealand, as well as managing risk of identity fraud. It is important to note that for the majority of people, the use of biometrics will make their travel easier and safer. It will allow for the processing immigration applications faster and facilitate the processing of arrivals at the border. At the same time, it will improve the integrity of the immigration system in terms of identity confirmation in immigration decision-making and provide greater assurance that identity fraud and non-citizens posing risks to New Zealand will be detected.

I am sure we all agree that reliance on paper-based identity documents is becoming increasingly inadequate to manage identity fraud. This is particularly true for high-risk individuals who don’t use their own travel documents when they travel. These are the only individuals who should be concerned about the “risk management” element of the biometric provisions.

For citizens - The Bill only enables photographic biometric information to be collected on arrival in New Zealand. The intention is that this information can be matched against the photographic biometric information that is store on the chip in New Zealand passports issued from 2004.This will protect the value of the New Zealand passport as an identity document, while facilitating the easy entry of New Zealanders returning home to New Zealand. Where the person’s citizenship and identity is confirmed, the information will then be disposed of.

The Bill enables photographs, fingerprints or iris scans to be required from non-citizens.

The intention of the biometric provisions for non-citizens is to enable the Department of Labour to establish their identity, and to verify it throughout their engagement with the immigration system. There are a number of points at which this will occur, starting from when a visa application is made. Verification could also occur at check-in prior to travel, after check-in but prior to boarding a craft to New Zealand and, of course, during processing at the border.

Biometric information will also be used to establish a person’s identity if the Department is undertaking compliance or fraud investigations.

The Bill has been amended by the Select Committee to ensure that biometric information can also be collected from non-citizens who are departing New Zealand. This is a crucial part of ensuring we have a ‘joined-up’ immigration system – we need to know that the people coming into New Zealand are the same people leaving New Zealand – and will assist in preventing identity fraud and passport swapping.
Visas and permits
The Bill establishes a universal visa system. The provisions for the visa system have been amended in the Immigration Bill as reported back. Generally, these changes are drafting changes, and do not substantially alter the substance of the provisions.

The universal visa system does do two things. Firstly, it removes the distinctions between the categories of: visa, permit, and exemption. Secondly, it requires all non-citizens to hold a visa to be in New Zealand. Of course, those people who travel to New Zealand visa free can continue to do so.

Although ‘permits’ will no longer exist under the Bill, ‘entry permission’ in the Bill will mirror the current function performed by the grant of a permit at the border. When entry permission is granted, ‘stay’ conditions of the person’s visa will be activated. Examples of ‘stay’ conditions include a right to study or work on a temporary visa, or the granting of a stay for an express purpose on a limited visa.

As the change is implemented, New Zealand will be able to provide the appropriate level of scrutiny to all people who cross our border. The biggest actual difference will be at the maritime border with those non-citizens currently exempt from visa requirements becoming visa required. Currently our sea borders are not as secure as they should be, so this is a significant and very positive change.
Discretionary decision making

Updating you on the visa system leads me into discretionary decision making. This is another area I see the conference speakers will address today.

As you know, under government residence policy there are limits on the discretion that can be exercised in decision making. Decisions must be made consistent with the applicable policy. Where a person is declined residence, they might appeal the decision and/or seek intervention from the Minister of Immigration based on their exceptional circumstances.

A positive change in the Bill, that received support when proposed in the public consultation process, is that it allows the power to make “exceptions to residence policy to be delegated”.

The Department of Labour receives around 25,000 residence applications a year. And around 4,000 requests for intervention are also received. This change seeks to reduce the need for ministerial intervention where there is a clear-cut case that an exception should be considered.

An example of what might be an appropriate use of this power would be a radiologist who wished to come to New Zealand and settle in an area where there was a dire shortage of radiologists. However the radiologist is a year too old to be considered under the policy governing the Skilled Migrant Category.

In this case, the person would be of obvious benefit as one of those migrants we want and need. I shouldn’t need to make the decision that it is acceptable to grant a resident visa in this case. This change in the Bill will help cut through the red tape in situations like these to bring benefits to all New Zealanders.
The appeal provisions
I would like to talk now about the appeal provisions. There seems to be some misconceptions that the Bill takes away appeal rights.

The Bill does not exclude the rights of access to appeals. It does, however, ensure that repeat or duplicate avenues of review and appeal in relation to the same matter are avoided. For example, a person convicted of a criminal offence and liable for deportation will not be able to challenge the “facts” of their case in the High Court through an immigration appeal. The facts have been established in their criminal case. If available, they will still be able to access a humanitarian appeal against deportation.

The only key change to the appeal structure is that the Bill does not enable a non-citizen to apply for reconsideration where a temporary entry decision is made by the Minister. This is appropriate because the Minister’s decision is the final port of call.

The Bill also ensures that each interaction a particular non-citizen may have with the appeal system is dealt with in an efficient way.

A key to achieving efficiency, without reducing appeal rights, has been the establishment of the Immigration and Protection Tribunal (the Tribunal).

Unlike the current system, the Bill allows the Tribunal to do some key things. For example, it may consider all of a non-citizen’s appeals together where possible. The Tribunal may have any member hear any appeal, and have any single member determine any appeal – this is a big improvement on the status quo where, for example, the Deportation Review Tribunal requires three members to hear an appeal.

If a non-citizen makes an appeal later on (at a later point in their ‘immigration life cycle’), the Tribunal member can rely on the previous findings of any earlier appeal. There are also a number of clauses in the Bill that impress upon the Tribunal the need to work in an orderly and expeditious way.

A key change to the Bill - to further increase efficiency – reported back by the Select Committee is that failed refugee and protection claimants, who would be entitled to a humanitarian appeal, would be required to lodge that appeal at the same time as their appeal against their declined refugee or protection claim.

This means that there will no longer be an incentive for failed claimants to become unlawful in New Zealand in order to access a humanitarian appeal.

Under the Bill, the Tribunal would first consider any refugee or protection matters. If a failed claimant was granted refugee or protection status, their humanitarian appeal would not need to be considered. If their refugee or protection appeal was declined, any humanitarian circumstances would then be considered with a final decision made on all relevant matters.

Beyond this, there has been little change to the status quo beyond the establishment of the Tribunal. However, in saying that, the intent of the single Tribunal is to enhance the whole appeals process by gaining from the expertise that is available across all four appeal authorities. I am confident that the single Tribunal will not result in the loss of expertise in the Refugee Status Appeal Authority. This is because it is the members of that authority that hold the expertise, and the quality of their decisions that make it a world class authority - not the authority itself. The new Tribunal will be able to uphold the quality decision making of all our current appeal authorities.

The final two points I want to touch on are the classified information provisions and the refugee and protection system.
Classified information
Before I outline the key changes to the classified information provisions, it is worth reminding ourselves that we have only ever used classified information once in the immigration context. I don’t think that after the Bill is passed, we are going to be rushing out to use it more and more. I do think, however, that it is important that if we need to use classified information where it impacts on security or criminal conduct, we can.

To help put this into perspective let me illustrate an example which could occur under the current Immigration Act where classified information cannot be used in immigration decision-making related to criminal conduct, because of the requirement to provide all non-citizens with potentially prejudicial information.

There could be a case where we would have to give an alleged drug smuggler under investigation as part of a multi-national initiative a visa for New Zealand simply because the only adverse information we had on them was classified. In this case, the current legislation puts us in a bad situation.

The chief executives who can certify information as classified information have been limited to listed security, defence, law enforcement, and border agencies along with the Ministry of Foreign Affairs and Trade and the Department of Internal Affairs.

The Bill now also ensures the effective operation of the Ombudsman Act, the Official Information Act and the Privacy Act. All these pieces of legislation provide safeguards to the use of classified information that sit along side those established in the Bill.

Where residence, deportation or refugee and protection decisions are made, that classified information cannot be used without a summary of allegations. In essence, this is to ensure that the non-citizen can be meaningfully informed of the allegations against them. This mirrors the usual potentially prejudicial information process.

The provisions around the role of the special advocate have also been reviewed. Their limitation on lodging review or appeal proceedings on behalf on an appellant has been lifted.

While there has been much debate about how the Bill stacks up when compared internationally, let me tell you, it is comparable, if not better than elsewhere. It is also “fit for purpose” for the New Zealand context and draws on the lessons learnt to date.
The refugee and protection provisions

Finally, I would like to take the chance to update you on the refugee and protection provisions in the Bill. I know these were subject to a number of useful submissions to the Committee.

Importantly, the provisions reflecting New Zealand’s obligations under the Convention Against Torture and the International Covenant on Civil and Political Rights have been updated. They now reflect more closely the wording of the Convention Against Torture.

For those of you who submitted on clause 125, you will be pleased to know that it has been completely re-drafted. It was obviously a flaw in the Bill as introduced to suggest that someone would not be protected under the Convention Against Torture and International Convention on Civil and Political Rights if all people in their country were being tortured. The intent is now clear, that where a claimant can access protection in their country of nationality or usual habitual residence, they cannot be recognised as a refugee or protected person in New Zealand.

The Committee has also made sure that consideration of whether a claimant has the protection of another country is a matter to be determined in the course of deciding a claim, not a matter to be considered before accepting a claim. I know there was a concern about a “two-step” process of making decisions to accept a claim for consideration, then considering it.

These are all positive changes which will ensure that New Zealand’s refugee and protection system will be first class and meet our international obligations.
The way forward
I am looking forward to the Bill progressing through Parliament, and passing into legislation. After enactment, the Department of Labour will be working across government and with key stakeholders to put the new legislation in place.

Some of you may know that the Act review itself has been going on for a few years now. This is because it is important, and shouldn’t be rushed. Implementing the new legislation will not be rushed either. It is more important that we get it right.

Immigration makes a significant contribution to the productivity of our economy through building a skilled and knowledgeable workforce, as well as adding to the richness of our society.

I look forward to working further with you and other key stakeholders to ensure that immigration continues to make its essential contribution to New Zealand’s society and economy into the future.


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