Lianne Dalziel speech: Immigration & Refugee Law Seminar

Carlton Hotel Cnr Mayoral Drive & Vincent Street Auckland 9:10am

Thank you for the opportunity to deliver a ministerial address to this seminar on immigration and refugee law.

There are four issues that I want to particularly cover, and they include the context for the most recent changes to immigration law and policy. The second involves details of those changes. The third deals with next year’s agenda, and the fourth touches on the first experience of Part 4A of the Immigration Act 1987.

In order to understand the changes to skilled immigration policy that were announced on 1 July this year, it is important to understand the context within which they arose.

I was sworn in as the Minister of Immigration on 10 December 1999 and in the nearly four years since then, I have initiated a range of policy reviews and changes that were well overdue in a portfolio that had suffered from a lack of direction for nearly a decade.

The government’s driver has been the need to focus the policy on settlement outcomes – it’s not so much the numbers that come into New Zealand that count, it’s what happens to them after they arrive here that matters. The previous government established targets – we established approval limits through a balanced, well-managed immigration programme.

Some of the first papers I took through Cabinet in 2000 were the basis for a shift to settlement outcomes with responsibility for settlement policy being shared between the NZIS and the Office of Ethnic Affairs. The government approved pilot settlement programmes, which were developed in a collaborative way with existing agencies and organisations, and these pilots were evaluated in a proactive way, which has resulted in several being continued through the Budget process.

On 1 October 2001, we introduced the NZ Immigration Programme, based on an approvals management approach, rather than a migration target.

The Programme has three streams: the Skilled/Business stream, which drives the programme with 60% of approvals; the Family sponsored stream, with 30% of approvals and the International/ Humanitarian Stream, with 10% of approvals.

Significant changes accompanied this programme. The Skilled/Business Stream was allocated 60% of the programme, sending a clear message that this was the programme’s driver.

The Humanitarian Category was closed, and the Family Sponsored stream was adjusted to provide access to people who were previously unable to qualify – e.g. last remaining family members who were married and/or had children. The replacement of the criteria with the requirement of a job offer has meant families have needed to face the reality of settling wider family members and the importance of employment in settlement outcomes.

For the first time family sponsors were required to meet a three year residency requirement before being able to sponsor wider family members, and those that were bringing in those adult children, parents or adult siblings had to make a statutory declaration of financial support for the first two years of their sponsored relative’s residence. This has led to a marked reduction in new migrants claiming the Emergency Unemployment Benefit.

A new Domestic Violence category was introduced, which sought to address the difficulties confronted by individuals who for cultural reasons couldn’t return to their home country having been the victim of domestic violence but had lost the sponsorship of their NZ resident/citizen partner. The new policy has enabled a small number of women to gain residence without the ongoing sponsorship of their partner due to domestic violence.

Two new quotas were introduced, based on a ballot system for family reunion. One is for all families, the other is targeted to refugee family reunion (which has lower fees and the 2 year obligation for financial support is waived).

If there is additional capacity in these streams, then it will be possible to increase the 250 and 300 places respectively that have been allocated to these categories.

A Pacific Access Category has enabled balloted places to be made available to Tonga, Fiji, Kiribati and Tuvalu.

So the NZ Immigration programme represented a significant change in approach, but did not represent the full change as the General Skills Category still had to be reviewed.

Prior to the 1991 points based General Category being introduced, the focus was on occupational priorities. So this stream of migrants was always intended to ensure that migrants matched New Zealand’s skill shortages.

Unfortunately, the shift to the points system, which essentially created an entitlement to residence as long as the points were met, shifted the emphasis from New Zealand’s actual priorities in terms of skill shortages to the assumed employability and potential contribution of the skilled migrant.

This was the policy that gave us the ‘doctors-driving-taxis’ scenario; something the government of the day took four years to address. But they only fixed it for those who needed professional registration to practise in New Zealand.

Other policy changes in the 1990s and the unwillingness of the government of the day to focus on settlement outcomes, meant skilled migrants came to New Zealand without a hope of ever finding opportunities to match their skills and experience. Some of those people are still struggling today.

The new approach is about turning the policy around so that we get the best of both worlds. We retain the points system, with bonus points that emphasise New Zealand’s needs, and we prioritise potential migrants with the greatest potential to meet those needs.

The new policy is about ensuring that skilled migrants, who sit within the stream that makes up 60 percent of the programme, are invited to apply for residence based on their ability to settle well and make a contribution to New Zealand.

There were two Amendment Bills – The No 1 Bill, which went to a select committee, dealt with the provisions that would see an invitation to apply for residence to precede an application for residence, and introduced the Residence Review Board. The Select Committee recommended changes as a result of submissions received and these were agreed.

The No 2 Bill went through under urgency that involved the lapsing provisions, which were controversial. However, despite the concerns that were raised that this would impact on New Zealand’s ability to attract skilled migrants and, despite the Interim General Skills Category requiring a relevant job offer, application numbers in this category remain higher than forecast. The other aspect related to the global prioritisation of applications.

One of the reasons for the legislation was due to concern that we were exposed to risk around prioritising applications with relevant job offers.

This became even more apparent with the NZAMI High Court decision, which blurred the boundary between temporary entry policy and government residence policy. I believe that it was important that the distinction was clarified in the law, and I sought a late amendment to the Bill before it was introduced.

The new skilled migrant category is innovative and very much focused on outcomes.

The process will involve expressions of interest being lodged subject to the prerequisites of health, character and English language. These expressions will be ranked based on the new points system, which will, for example, provide recognition for job offers in areas of skill shortage. Those with the highest points will be invited to apply for residence. This means the ones who have the most to offer New Zealand will be prioritised. Once applications are received two streams will emerge.

One stream will be based on those who have already demonstrated that they can settle and do well in New Zealand, through previous study or employment here. The other will be based on those who have not yet demonstrated their ability to settle here. They will be able to prove themselves, as it were, through a two-year work to residence programme.

The level of verification that NZIS will ensure will be risk based at the Expression of Interest level, but will be high for all applications for residence. This is especially important for job offers that attract bonus points, and some ongoing verification beyond arrival will be required. This will actually tie in with the customised service approach, which is very much focused on individual assessment of need and detailed follow up to ensure that needs are met.

I am looking forward to the introduction of the new Skilled Migrant category, and I am confident that it will make a real difference on both sides of the equation.
The other significant policy changes that paved the way for the introduction of the skills migrant category that were brought in last year included new work to residence policies including the Talent Visa, strengthening the English language standard for the principal applicant in the General Skills category, introducing a minimum English language requirement for business applicants and lifting the requirements of Long Term Business Visa and Entrepreneur applicants.

There are three other significant pieces of policy work that have been completed or are about to be completed that relate to the NZ Immigration programme. The one that has been completed is the review of the partner category in the family sponsored stream. Removing the discrimination between married and de facto couples was obviously a key motivating factor in these changes, however, the other benefit of the changes comes from the shift in the onus of proof as to the genuine and stable nature of the relationship. Prior to these changes, which took effect in September this year, NZIS had to grant residence unless they could establish that the relationship was not genuine or stable. Now it will be over to the applicant to establish that the relationship is genuine and stable.

This may on the face it seem harsh, however, there are many cases each year where a New Zealand man or woman is essentially cheated into sponsoring someone for residence, and as I have said on more than one occasion it is very difficult to establish sufficient evidence when there is only one party to the fraud. I have nothing but contempt for men or women who use people in this way, and there is no question in my mind that this is an area that needed to be addressed.

The other two are close to final decisions being made and they are the health immigration policy that will address both the screening criteria and the thresholds for temporary entry or permanent residence in New Zealand. The other is the Business Investor category, which is still being worked through by NZIS and Treasury after a highly disappointing evaluation of the 1999 Business Immigration Policy, which I received last year.

In addition we are developing a settlement strategy that is based on a whole of government approach, which will build on the experience of the settlement pilots and the regional immigration initiatives.

Next year will see begin a substantive review of the Immigration Act 1987. The Act has been the subject of piecemeal changes since 1987 and I believe this was highlighted in the Court of Appeal decision in the Refugee Council case and also in the habeas corpus case, Mohebbi, which resulted in the Immigration Amendment Bill being used to amend the Act to prevent people being released from detention when awaiting removal when the individual was the cause of the problem affecting removal – e.g. refusing to sign for a travel document.

This will also enable any changes to be made to the structure of the Act arising out of the Law Commission review of courts. A number of options exist, however, I have made no secret of my preference for the functions of the DRT and RRA to merge, and for the RSAA to be transferred to courts and tribunals. Another option, recommended by the Law Commission, is to have an immigration appeal authority to cover all immigration appeals. I am reasonably comfortable with this approach as well. There could be a significant benefit in having the RSAA making decisions on removal as well, because credibility will have already been a key determinant in deciding to decline the claim.

The only exception for me would be the Residence Review Board – which you will note from the name change is designed for a shift to a review function rather than an appeal. The fact that this year’s Immigration Amendment Act now allows the NZIS to correct its own mistakes in decision-making should enable them to focus more on those cases where a recommendation for an exception to policy can be made. This function is quite different from the rest of the appeal bodies and the review tribunal, so I believe it could still sit within the Department of Labour.

One of the criticisms that were made of the Immigration Amendment Bill in Parliament was that the language was very discretionary. Of course, these were just political statements by opposition MPs who clearly hadn’t read the Act, which is already couched in these terms, however, I do not like the language and hope that we can modernise it in the context of the review.

Finally I thought that I should also mention Part 4A of the Immigration Act 1987, which was passed into law in 1999, and which has been the subject of considerable media scrutiny of late.

This is the first time that a Security Risk Certificate has been issued in accordance with the Act, so it can be expected that there will be some anxiety about how the process will work in practice.

I am disturbed about the extent of the media coverage that has been involved in the individual case and the campaign that is being mounted in the media against the provisions that enable the Director of Security to disclose ‘classified security information’ to the Minister of Immigration. No one should know his name, no one should have seen his photo and no one should have seen him appearing in court. Section 129T is clear and for good reason. Publicity may expose a claimant to risk, whether they are removed from New Zealand or not, and other family members or friends may be exposed to risk. On the other hand, publicity may be generated by the person him/herself in order to shore up a claim for status.

Part 4A acknowledges that there will be circumstances where classified security information will be relevant for immigration purposes. It also makes it clear that there are competing interests – the public interest and the individual interest. The individual rights sought to be protected are contained, in a New Zealand context, within the NZ Bill of Rights Act. Under that Act there is provision for all government Bills to be vetted for compliance with the Act. The Bill that introduced Part 4A was vetted for compliance. It met the test.

Essentially the ability of ‘an independent person of high standing’, (in this case the Inspector General of Intelligence & Security), to review the Security Risk Certificate, including the classified security information upon which it is based, coupled with an appeal to the Court of Appeal on a point of law, are what protect the individual’s rights.

However the public interest lies in New Zealand’s ability to receive classified security information, and such information must remain confidential for good reason. If New Zealand does not treat the classified security information it receives as confidential, how much intelligence will we receive in the future? How will we be able to issue warnings to our citizens considering travelling abroad? How will we be able to become aware of the connections between people and groups that have implications for our own domestic security?

The New Zealand Security Intelligence Service does receive information on a strictly confidential basis, and it is vital to New Zealand’s security that it can continue to do so.

If anyone needs a reason for the use of classified security information in this way, we only need to think about September 11 or, for something closer to home, the Bali bombing. The only real counter to terrorism is intelligence. Terrorism is not like conventional war – it is underground, it is long-term in its planning and its participants are not only not afraid to die, they expect to do so in the name of their cause.

I have asserted that in this case the media have been used to mount a case in the ‘court of public opinion’, but that is not an appropriate jurisdiction, because only one side can be presented. For example, during the weekend when the RSAA decision was being edited for public release, (a delay and process that was
agreed by everyone), the Sunday Star Times reported that they had been ‘allowed exclusive access to [the] file through his defence team’. The media couldn’t even question an apparent inconsistency between the RSAA decision and comments attributed to the individual, because they didn’t have the RSAA decision

It is fair to say that some members of the public have become particularly anxious because of the length of time this has all taken. My preliminary decision to rely on the Security Risk Certificate was communicated to the individual in April this year. He appealed immediately to the Inspector-General, however, the matter was, with his consent deferred until after the RSAA decision was made.

It was, therefore, only when he was approved refugee status that the matter proceeded to be addressed by the Inspector General. I have no objection to this process. However, I have been receiving letters blaming me for the length of time he has been detained.

Yet he is still the subject of a security risk certificate – the only difference is that he now has refugee status. The publicity centres on the latter not the former, and I cannot say why he is subject to the security risk certificate, because that is based on classified security information. I am caught between a rock and a hard place. That is why I have expressed frustration at the legal proceedings that are causing delays.

Part 4A of the Act did not envisage these delays. The Inspector General is required to conduct the review “with all reasonable speed and diligence”. However there have been lengthy delays. I accept the lawyers have the right to pursue all legal avenues on behalf of their client, afterall it is the first case to test the law that was written in 1999. But he remains the subject of the Security Risk certificate – so I cannot sit back and accept criticism for the decision to detain him, when the matter could have been determined by now. I expressed my frustration during a Radio New Zealand interview a couple of weeks ago, and I want to make it clear that I did not intend to criticise or call in question the integrity of the legal team or their right to take the steps they have. But this is the consequence, which is not one envisaged by the Act, a matter that is reinforced by the fact that if the Inspector General upholds the certificate, I have to make my decision in three days.

Returning to the objectives of the special procedures in cases involving concerns, I believe that Mr Zaoui’s rights are protected by the appeal to the Inspector General who is a retired senior High Court judge and who has access to all the information including the classified security information and will hold a hearing. If he holds that the Security Risk Certificate was not properly made then the individual will be released.

Balanced against his individual rights remains the public interest. I personally believe that I speak for the majority of New Zealanders when I say that in this age of international terrorism, we have a right to know who is entering our country, where they are from and why they are here.

And if we are to have access to international intelligence to support us in that task and to protect New Zealand’s domestic security, we have to accept that both the source and content of classified security information must be kept confidential.

It is a matter of balance. Whatever decision the Inspector General reaches, and whatever decision I reach, if the matter comes back to me, I am confident that New Zealanders will want to retain a mechanism that enables us to utilise classified security information for immigration purposes, while ensuring that individual rights are protected to the greatest extent possible.

It is, as with all immigration matters, a question of balance and overall I believe that the balance is right.

Thank you for the opportunity to address you this morning. I hope that you find the seminar a useful opportunity to debate these issues, and hopefully to start thinking about aspects of the review of the Act you may be interested in being involved in next year.

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