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New Zealand Human Rights Commission Submissions |
Last Updated: 27 March 2015
Human Rights Commission
Submission on the
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To
the Transport and Industrial Relations Committee
2 November 2007
Sylvia
Bell
Principal Legal and Policy Analyst
Human Rights
Commission
Direct dial (09) 306 2650
Email: sylviab@hrc.co.nz
CONTENTS
1. Introduction 2
2. International
context 4
Convention on the Rights of the Child
5
Convention against Torture/
International Covenant on Civil & Political Rights 6
SPECIFIC ASPECTS OF THE BILL
3. Definition of classified information – clause
5 8
4. Permission to enter New Zealand – clauses 9 &
10 10
5. Immigration Instructions – clause 20
11
6. Biometric Information 12
7. Use of classified
information – clause 30 13
11. Complementary
protection – clause 122 19
12. Deportation of visa holders
– clause 150 21
13. Humanitarian exemption – clause
186 22
14. Increased powers of immigration officials –
clauses 250-252 24
15. Detention - clause
275 24
16. Right to detain children & young people –
clauses 294 & 295 25 17. Relationship with Human Rights Act 1993
– clause 350 26
18. 1954 Convention Relating to the Status
of Stateless
Persons 28
19. Conclusion 30
1. INTRODUCTION
1.1 This submission is made by the Human Rights Commission (the Commission). The Commission is an independent Crown entity mandated by the Human Rights Act 1993 (HRA). The Commission’s primary functions include advocating and promoting respect for, and an understanding of, human rights in New Zealand society; encouraging harmonious relationships between individuals and the diverse groups in New Zealand; receiving complaints of discrimination; and leading, monitoring and advising on Equal Employment Opportunities (EEO).
1.2 Section 5(2)(m) of the HRA requires the Commission to develop a national plan of action to promote and protect human rights in New Zealand. While Mana ki te Tangata: The New Zealand Action Plan for Human Rights[1]recognises there is no specific right to immigration, it stresses the importance of protecting the rights of migrants and refugees at all stages of the immigration process.
1.3 Human rights standards provide a tool for managing the process in a principled and transparent way[2]. In the immigration context this means:
◦ transparent, fair admission procedures;
◦ procedural safeguards such as rights of appeal and access to effective legal remedies;
◦ clear detailed rules relating to the protection of personal information
1.4 The Commission acknowledges that aspects of the Bill reflect changes that it advocated during the review of the Immigration Act 1987. These include the reference in the purpose statement to individual rights, the implicit recognition of migrants’ contribution to the local workforce and the importance of New Zealand’s immigration related international obligations. It is also encouraging to see that the Bill specifically provides that education providers will not be penalised for allowing a child or young person under 19 who is not entitled to study in New Zealand to access compulsory education; that the health provisions currently found in immigration policy have not been formalised in the legislation and that the Bill specifically refers to the UN Convention against Torture and the International Covenant on Civil and Political Rights.
1.5 However, the Commission still has concerns about some aspects of the Bill including a number of matters that were not foreshadowed in the review process. Among the issues that the Commission considers to be of concern are:
2.1 The purpose of the Human Rights Act 1993 is to “provide better protection of human rights in New Zealand in general accordance with the United Nations Covenants and Conventions on Human Rights”. The Commission therefore has a specific mandate to promote the observance of international human rights standards in legislation, policy and practice.
2.2 While there is no right to immigration, migrants are entitled to the rights outlined in the major international treaties. Some of these rights – for example, the right to freedom from discrimination, to family reunification, freedom from arbitrary arrest, detention and expulsion and the right to justice – take on a particular significance in the immigration context. In addition all the relevant international instruments stress the importance of non-discrimination and the right to be treated with dignity and respect.
2.3 The criteria in the international instruments provide benchmarks for judging whether human rights standards are met in legislation and policy. The right to freedom from discrimination, for example, is relevant to the comments on age made later in this submission as is the right under the ICCPR not to be arbitrarily detained and the relevant jurisprudence.
2.4 The Commission’s position on its statutory responsibility to advocate and promote respect for the international instruments has consistently been that the relevant human rights instruments New Zealand has ratified should be explicitly incorporated in legislation. In this case the United Nations Convention on the Rights of the Child (UNCROC)[3] should be included in the proposed Act to ensure the legislation is interpreted in a way that recognises the rights and special needs of children and young people[4].
2.5 If there is no explicit reference to UNCROC in the legislation, then at the very least the best interests of the child should be identified as a primary consideration in actions concerning children. The Commission understands that the UNCROC obligations will be addressed in the Immigration Instructions and proposed humanitarian appeals process[5]. Should this be the case, then the humanitarian criteria should refer explicitly to the best interests of the child[6].
Ideally the legislation should refer to the UN Convention
on the Rights of the Child. Failing this there should be specific recognition
that decisions relating to children and young people are required to be in the
best interests of the child.
2.8 The references to the Convention against Torture (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR) in the body of the legislation are designed to ensure consistency with New Zealand’s international obligations.
2.9 Both prohibit the refoulement of a person to a situation where they are in danger of torture or inhumane or degrading treatment or punishment. The activities of the individual, however undesirable or dangerous, cannot be a relevant consideration in such circumstances. The protection is absolute and non-derogable[7].
2.10 Article 7 of ICCPR - the right not to be subjected to torture or cruel, inhuman or degrading treatment – effectively complements Art. 3(1) of UNCAT which prohibits States from refouling a person to a State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
2.11 The relevant clauses in the Bill omit the words “in danger of”. This has the effect of increasing the threshold that a person will need to establish to avoid refoulement.
2.12 The wording proposed could have far reaching consequences for protection against torture. Given the Bill’s breadth of cover, diluting the absolute prohibition on torture could have an impact beyond simply security cases and erode the absolute nature of the right to freedom from torture when pressing policy considerations apply[8].
2.13 In Chalal v UK[9] the majority of the House of Lords held that whenever there were substantial grounds for believing that an individual would face a real risk of being subjected to treatment contrary to Art.3 if removed to another State, the responsibility of the contributing State to safeguard him or her against such treatment was engaged in the event of expulsion [para 80].
2.14 The minority suggested that expulsion could be balanced against the threat to national security. It followed that where on the evidence there is a “substantial doubt” as to whether the person would be subjected to torture or inhuman or degrading treatment on return, the threat to security would be sufficient to justify deportation. In Suresh v Canada[10]the Supreme Court of Canada also suggested that deportation might be justified in such circumstances.
2.15 In New Zealand, in Attorney-General v Zaoui[11], the Supreme Court held that in light of the guarantees under the New Zealand Bill of Rights Act 1990 (NZBoRA) - and by extension the ICCPR and the UNCAT - the right not to be deported to face torture could not be balanced against considerations of national security. In other words the Supreme Court upheld the absolute nature of the right.
2.16 The Attorney General’s advice on the Bill suggests that Courts would be likely to read in the reference to “in danger of” to ensure consistency with New Zealand’s international commitments but nevertheless recommends that the words be inserted into the provision during the Select Committee process.[12] The Commission agrees with this. It is always possible that a court may regard the omission as significant and interpret the provision accordingly.
2.17 It is inconsistent with New Zealand’s international undertakings - and the jurisprudence of its highest court - to omit the words “in danger of” from the relevant clauses in the Bill.
The
Commission recommends that the words “in danger of” be included in
clauses 120(1) and 121(1) of the Bill that refer
to the Convention against
Torture.
SPECIFIC ASPECTS OF THE BILL
3.1 Clause 5 defines “classified information” as information that the Chief Executive of a relevant agency certifies cannot be disclosed. The information can be withheld if the agency that holds it, or was the source of the information or was provided with it, decides it is likely to infringe the criteria in cl.5(3). Classified information will able to be used in a variety of decisions under the Act[13].
3.2 The provisions relating to classified information raise concerns about:
3.3 The decision maker does not have to make an objective assessment in deciding whether information should be classified and disclosure only has to be “likely” to have one of the effects outlined in cl.5(3)[14]. A decision may therefore be wrong, arbitrary or even corrupt and could still meet the criteria of “classified information”.
3.4 A person who is subject to a prejudicial decision based on classified information is entitled to a summary of the reasons for the decision but not the information on which the reasons are based.[15]In addition, where a decision is within the absolute discretion of the Minister, the decision may be made in reliance on classified information but the Minister does not have to provide a summary or give reasons why he or she has elected to do so. The decision cannot be challenged under s.23 of the Official Information Act 1982.
3.5 The review agency will be bound by the decision to classify the information irrespective of how the decision was reached[16]and the Bill does not provide a remedy should information be incorrectly classified. Once information is defined as “classified” by a Chief Executive - even if the Tribunal subsequently decides it does not meet the criteria in cl.5 - the information remains confidential as a result of cl.32(2). Where an application for review of a warrant of commitment or detention involving classified information is made to the High Court, the Court is required to treat the classified information as accurate.
3.6 The ability to question the quality of classified information will be further limited by the restrictions on judicial review by the High Court to challenge the reasonableness of an official’s opinion[17], the exclusion of complaints to the Inspector-General[18]and cl.32(2) which appears to exclude not only the application of s.23(1) of the Official Information Act but also the role of the Ombudsmen under s.19 of the Ombudsmens Act 1975.
3.7 The way in which decisions about classified information are reached, and the limitations of the review mechanisms provided, will have the effect of shrouding the decision-making process in secrecy and subverting public sector accountability. The Commission does not consider that a determination that a decision to withhold information is wrong is an adequate safeguard against error or misadministration.
The Commission recommends
that:
4.1 Clause 9 sets out the criteria under which a person will be refused permission to enter New Zealand. These include when a person has been removed, excluded or deported from another country: cl.9(1)(f). A person could therefore be removed from a country for political reasons or excluded for reasons that may not always be substantiated subsequently.
4.2 Although refusal under both cls.9 and 10 can be overridden by a special direction from the Minister, the decision to do so is an “absolute discretion” which means that it cannot be applied for, there is no obligation for the decision maker to consider an application and he or she is not obliged to give reasons for why they have decided to consider (or not consider) the application. Again s.23 of the Official Information Act will not apply.
4.3 The criteria in cl.9(1)(f) are too broad[20]. Should exclusion be justified it should either be because of the criteria in the preceding subsections of cl.9(1) or for the reasons listed in cl.10 (which prohibits a visa or entry permission being granted to persons who the Minister considers are likely to be a threat or risk to security, public order or the public interest).
The Commission recommends that:
5.1 Globally immigration legislation and policy tends to be “gender neutral” and not reflect the particular experience of migrant and refugee women - despite the fact that migrant women make up nearly half of the migrant population world wide[21].
5.2 In New Zealand, for example, migrant women who have been subjected to domestic violence can find themselves in a legal limbo if their partners withdraw their sponsorship for residency when the woman leaves the abusive relationship.
5.3 The Commission recognises that such matters are addressed through regulation or operational policy such as immigration instructions. Clause 20(3) provides guidance on the type of matter that may constitute immigration instructions for the purposes of the Act. A number – for example, matters “relevant to balancing individual eligibility against the requirements of the immigration instructions” (e) and “information necessary to assess eligibility for a visa or entry permission”(f) - could be improved by a reference that would alert officials to the implications of the experiences of women.
The Commission recommends that consideration is given to
including an explicit reference in clause 20 to ensure that regard is had
to the
particular experience of migrant women.
6.1 Under the Bill biometric information will be able to be used to establish or verify a person’s identity. While there are some positive aspects to this - for example, there is evidence that reliance on paper based identity documents is becoming increasingly inadequate and identity theft more common[22] - the Commission is not convinced that there are compelling reasons for requiring biometric data to be collected from everyone who wishes to come to New Zealand. It is concerned that this could set a precedent for the compulsory collection of biometric information in other areas or lead to data being exchanged with other countries.
6.2 Furthermore there is no indication in the Bill about how the information will be dealt with – for example, how it will be stored or for how long. Given the importance of biometric information to the scheme of the Bill, it should include a framework for managing and controlling its use, including necessary (privacy) safeguards.
The Commission urges
that the Privacy Commissioner is consulted on the development of an appropriate
framework for managing and controlling
the use of biometric information.
7.1 Classified information will no longer be limited to security matters but will be able to be used in a variety of situations which involve matters of security or criminal conduct or “may have a significant impact on New Zealand’s international reputation” [23].
7.2 Apart from the implications of using classified information in a
wide range of immigration matters, relying on concerns about
the potential
effect on New Zealand’s international reputation is problematic. Decisions
about what amounts to a significant
impact on a country’s reputation can
be subjective. In the United Kingdom they have been described as
“makeweight”
and held not to justify detention without trial in the
absence of other reasons: A(FC) & Ors v Secretary of State for the Home
Department. [24]
7.3 Summaries of the allegations that make up the classified information
can be provided to the person concerned “except
to the extent that a
summary would prejudice the interests referred to in cl.5(3)”. As the
issues in cl.5(3) are those that
led to its classification in the first place,
summaries may not be provided at all.
7.4 As a general principle, an individual should be able to challenge
information which forms the basis of an adverse decision
about him or her
through normal adjudicative, adversarial
processes[25]. This is difficult, if
not impossible, if a person is unaware of what they are accused of.
7.5 The Attorney General accepts that there should be mechanisms allowing an affected person to be informed of the nature of the information used in a decision that may be prejudicial to them, and to challenge the veracity of the decision - and the decision itself - by way of appeal[26] but considers that the procedures provided are satisfactory. The Commission does not agree that this will always be the case and considers that summaries of classified information should be provided in all cases where the information forms the basis of an adverse decision.
The Commission recommends that:
8.1 Under cl.137 classified information may also be used to decide a claim for, or cancel recognition of, refugee or protected person status. Decisions in such cases are made by the Tribunal rather than officials and an applicant is entitled to be represented by a Special Advocate.
8.2 The Tribunal can approve the provision of a summary of allegations to an applicant for refugee or protected person status on the same conditions as in visa and residency applications. That is, the summary will not be provided if it would involve disclosure that would be likely to prejudice one of the interests that led the information to be classified in the first place. It is therefore possible that an applicant may not have access to a summary of the information on which a decision about their status is made.
8.3 The refugee determination process differs from the standard
immigration process because of the issues at stake, namely a
well founded fear
of persecution in the person’s country of origin. The use of classified
information in the context of refugee
decision making could significantly
undermine a system in which it is particularly important that the decision
making process is
fair and transparent and administered in accordance with the
principles of natural justice.
8.4 The United Nations High Commissioner for Refugees (UNHCR) has
stated that the use of classified information in the refugee
context is at odds
with best practice and has urged against its use unless it is
“declassified” and shared with all the
parties
concerned[27].
8.5 The Bill makes provision for a Special Advocate to represent an applicant for refugee or protected person status in situations where classified information is used. The advocate is able to see the classified information but thereafter can only communicate with their client in writing through the court and with the court’s approval and, again, only if it does not prejudice the interests that led to its classification in the first place. In other words whether the information is provided is effectively at the discretion of the decision makers.
8.6 The concept of the special advocate is very similar to that in the
United Kingdom where the Joint Committee on Human Rights
recently criticised the
concept as “kafkaesque” and
“a system ... which is very far removed from what we would consider
to be anything like a fair procedure. We were left in no
doubt that proceedings
involving special advocates, as currently conducted, fail to afford a
substantial measure of procedural
justice”[28].
8.7 Underlying the Committee’s criticism were concerns about the
limited disclosure of information which compromised the
Special Advocate’s
ability to rebut allegations against their clients, the lack of balance between
the individual on the one
hand and the public interest in non-disclosure on the
other[29], and the limitation of
what special advocates can practically do for their clients when they are
prohibited from communicating with
them about any matter connected with the
proceedings as soon as the advocate has seen the classified
material.[30]
8.8 In New Zealand the situation is compounded by the fact that Special
Advocates are unable to being their own proceedings
- for example, by way of
judicial review[31]. This limits an
applicant’s right to natural justice even further as the judiciary is
excluded from reviewing the Tribunal’s
decisions involving classified
information.
The Commission recommends that:
9.1 Clause 39 confers a power on the Minister or an immigration official to impose additional conditions on the grant of a visa (other than in the case of a permanent residency visa). Any variation must be done with the agreement of the visa holder. The individual will be notified in writing at the address supplied in the visa application form. Where conditions are imposed “by or under any other Act” (inter alia) then the obligation to comply arises whether the visa holder is aware of it or not, or of the implications of not meeting it[33].
9.2 While the Commission recognises the advantages of having a simpler,
more flexible visa system, it has concerns that the
ability to amend or impose
conditions on visa holders in this way could be abused in situations where there
is a perceived risk to
national security.
9.3 If people of a particular ethnicity or country of origin are the
subject of restrictions (as happened for example, during
the Gulf war or APEC)
this can amount to discrimination. The UN Committee on the Elimination of Racial
Discrimination and the Human
Rights Committee have expressed concern at such a
possibility[34]and in R v
Immigration Officer at Prague Airport & Anor ex parte European Roma Rights
Centre & Ors[35]
Baroness Hale noted that,
The [decision maker] may be acting on belief or assumptions about members of the sex or racial groups involved which are often true and which if true would provide a good reason for the less favourable treatment in question. But ‘what may be true of a group may not be true of a significant number of individuals within that group ...’
The Commission recommends the criteria for varying visa conditions
should be subject to an objective test rather than ministerial
discretion.
10. APPLICATIONS BY MINORS – CLAUSE 49
10.1 A visa application by a person under 18 who is not married or in a
civil union can be declined if the Minister or immigration
official is not
satisfied that the person’s parent or guardian agrees with the
application.
10.2 As the provision treats people aged 16 and 17 who are not married or
in a civil union differently, it breaches s.19 of the
NZBoRA (the right to be
free from discrimination) and, by extension, the Human Rights Act 1993 as both
Acts limit discrimination
on the ground of age and marital status to people over
the age of 16[36].
10.3 The Attorney-General considers that persons under the age of 18 in
this situation are vulnerable to exploitation by third
parties in the
immigration context and the check on parental consent acts as a
“reasonable and protective measure” (together
with the discretion
which allows the Minister or immigration official to grant an application in
deserving cases) thus justifying
the infringement of s.19.
10.4 The agreement of a parent or guardian does not necessarily guarantee
that a young people will be protected from exploitation.
In other situations
where the Act applies to young
people[37], there is an opportunity
for their views to be taken into account commensurate with their maturity and
understanding. Taking a similar
approach to applications for a visa would allow
young people between 16 and 18 to participate in decisions about their own
welfare.
The Commission recommends deleting cl.49 and amending
cl.338(2) – with whatever other amendments are necessary - to include
applications for a visa.
11.1 The concept of protected person status is new to New Zealand law and the
Commission is pleased to see it included in the Bill.
However the wording could
be improved to better reflect developing international human rights trends.
11.2 The term “protected person” is used to describe people
who do not fall within the Refugee Convention but cannot
safely return to their
country of origin because they might face torture, arbitrary deprivation of life
or cruel treatment if they
did so. The phenomenon is known as
“complementary protection” and reflects the increasing difficultly
faced by countries
such as New Zealand when seeking to remove or deport asylum
seekers who have failed in their claim for refugee status to potentially
threatening situations.
11.3 Provisions such as cl.122 are therefore designed to provide
protection for people who cannot benefit from the regime established
for
refugees under the 1951 Convention/1967 Protocol even though they, like
Convention refugees, may have sound reasons for not returning
to their home
country. The nature and extent of protection varies from country to country
depending on matters such as the way in
which the definition of refugee is
interpreted, moral and political considerations (including the country’s
commitment to international
human rights standards) and the practical
difficulties in dealing with people who cannot be removed for logistical reasons
such as
proof of nationality[38].
11.4 In the absence of consistent international direction it can be difficult to say what the eligibility criteria should be in such cases. The UNHCR considers complementary protection should be available to people who are unable to return to their countries because of serious and indiscriminate threats to life, liberty or security of person resulting from generalised violence or events seriously disturbing public order[39]. In terms of State practice most countries that accept the need to provide such protection, support protection of removal from a situation of generalised violence in the country of origin.
11.5 Clause 122(b) qualifies the protection it affords by stating that it
will not apply if the situation – that is torture,
deprivation of life or
cruel treatment - is faced generally by persons from the country in question. In
other words, people who are
threatened by indiscriminate or generalised violence
in their country will not qualify for protection.
11.6 The Bill as currently drafted therefore limits the protection available and is arguably inconsistent with the standards and procedures adopted by some other like minded countries.
The Commission recommends that the meaning of protected person is
redrafted to ensure that it covers indiscriminate or generalised
risk of
violence in a person’s country of
origin[40].
12.1 Under clause 150 the holder of a residence visa will be able to be deported in the two years following the granting of residency if they are convicted of an offence punishable by imprisonment for 3 months or more (or convicted of an offence that carries a term of imprisonment of 2 years or more if they have been in the country for 5 years or a term of 5 years if they have held a visa for 10 years).
12.2 The Commission considers that once migrants have been granted
residency then they should be treated the same as other New
Zealanders.
Immigrants have to satisfy certain character requirements before they can enter
New Zealand or become eligible for an
entry visa, therefore once they have been
granted residency they should be treated equally.
12.3 Should the provision be retained, then the threshold should be more commensurate with the nature of the offence. At present this is not the case. For example, every period of imprisonment specified by the Crimes Act 1961 is for three months or longer and many offences in the Summary Offences Act 1981 have a maximum imprisonment term of three months or greater. Offences such as wilful damage[41]and being on a property without reasonable excuse[42]are therefore on par with serious offences (which might arguably justify deportation) such as murder or manslaughter. Deportation is also a possibility even if the person does not receive the maximum sentence.
12.4 The ability to deport people in such circumstances can have significant implications where one member of a family such as a young adult is deported as a result of committing an offence.
The Commission
recommends that clause150 is deleted or if it is retained then the threshold for
deportation is more closely correlated
with the severity of the offence.
13. HUMANITARIAN EXEMPTION - CLAUSE 186
13.1 The Bill will include a single test for appealing deportation on
humanitarian grounds. The test, which will require the applicant
to establish
both exceptional circumstances of a humanitarian nature and that the
circumstances outweigh the public interest in expelling
them, is the most
restrictive version of the three tests that currently apply to humanitarian
appeals. It will apply to all those
liable for deportation, including permanent
residents and people who hold temporary visas on conditions and breach them
inadvertently[43].
13.2 The Commission considers that the test is too stringent and that a
test similar to that used in Canada which allows humanitarian
access to people
who can prove that they are suffering hardship that is “unusual, excessive
or undeserved and the result of
circumstances beyond their control” would
be more suitable given the potentially wide application of the test.
13.3 There is an assumption that the test will be interpreted consistently with the principles in UNCROC[44]. However, this may not always be enough. Canada provides a salutary example of why the best interests of the child should be specifically referred to in the legislation.
13.4 Until 2002 the Canadian immigration legislation referred simply to
“compassionate and humanitarian considerations”.
There was no
reference to the UNCROC. As in New Zealand, application of the exemption
depended on the exercise of (delegated) Ministerial
discretion. In Baker v
Canada (Minister of Citizenship and Immigration
[45]- a case which examined the
reasonableness of an immigration official’s refusal to grant a
humanitarian exemption to the mother
of children born in Canada - the Supreme
Court “read in” UNCROC and the best interests of the child, noting
that the
principles in the Convention “... help show the values that are
central in determining whether this decision was a reasonable
exercise of the
power”[46]. As a result of the
decision in Baker, the Canadian legislation was amended to reflect the
best interests of the child[47].
The Commission recommends that:
14.1 Clauses 250-252 extend the powers of entry and inspection currently available to police to immigration officials to investigate compliance with immigration obligations. This will include monitoring employers and education providers and people unlawfully in New Zealand or liable for deportation.
14.2 The Commission is concerned to ensure that immigration officials are
provided with comprehensive training on human rights
and that they exercise the
new powers appropriately incorporating human rights in practice.
The
Commission recommends that where powers of entry and inspection are exercised by
Immigration Officials they are trained and to
meet the relevant human rights
standards in their work.
15. DETENTION – CLAUSE 275
15.1 Predictably a significant number of provisions in the Bill relate to detention. While the Commission recognises that this is inevitable in the immigration context, it has concerns about clause 275 which increases the time that people will be able to be detained without a warrant of commitment to 96 hours. The extension is principally due to the increased administrative complexity that has resulted from the events of 9/11.
15.2 Even lawful detention can become arbitrary in terms of ss.22 and 23
BORA[48]. As the Attorney General
notes, an initially valid power to detain may be abused by unwarranted delays or
the treatment of the person
detained. Detention for 96 hours is at the upper
limit of such detention and accordingly there is an obligation to proceed
expeditiously[49].
15.3 The Commission notes that a person who is liable to be detained
under cl.275 may be required to reside at a particular place
on conditions
– although any such decision and the conditions which are imposed are at
the discretion of the immigration official.
15.4 The exercise of the discretion cannot be challenged. Given the
length of time and the fact that most people in this situation
are unlikely to
be criminals but are likely to be detained in police cells, the Commission
suggests that there should be a presumption
against detention, with residency
with conditions being the preferred option.
The Commission recommends
that the Bill incorporates a presumption against detention.
16.1 Provision is made for children and young people under the age of 18 to be detained either in residences under the control of, or approved by, the Chief Executive of the department responsible for administering the Children Young Persons and Their Families Act 1989 (“the Chief Executive”) or “any premises approved for the purposes of detention under th[e] Act.” The requirement is mandatory.
16.2 The Commission considers it is inappropriate in most cases to detain
children and young people under the age of 18 and that
minors –
particularly unaccompanied minors – seeking asylum should not be kept in
detention at all. Such treatment is
inconsistent with the best interests of the
child and with the principles in UNCROC.
16.3 While the Commission recognises that there will be situations where
young people will need to be housed in accommodation
approved by the Chief
Executive, this should not be mandatory, should be a measure of last resort and
only for the shortest time
necessary.
The Commission recommends
that:
17.1 The Bill effectively repeats s.149D of the Immigration Act 1987
which limits the role of the Human Rights Commission in relation
to immigration
matters. The provision is an anomaly. It makes the Immigration Act the only
legislation in New Zealand that cannot
be challenged under the Human Rights
Act.
17.2 No compelling arguments have been put forward to justify the exemption. While the Commission recognises that the purpose of the exemption is to avoid the possibility of an additional review process developing through the Commission’s complaints process, it has repeatedly stated (for example, in its submission on the Human Rights Amendment Bill and the paper on the Immigration review itself) that it has no wish to become involved in providing a further appeal process.
17.3 Section 80(3)(d) of the HRA allows the Commission to decline to act on a
complaint if there is an adequate right of appeal available.
The Commission
regularly invokes this provision when such cases arise.
17.4 At present the Commission can carry out a number of functions under s.5 of the HRA and address complaints about the manner and provision of Immigration services. However, it cannot seek a declaratory judgement under s.6 HRA relating to the Immigration Act, or bring civil proceedings arising from complaints under s.92B or about a breach of either Part 1A or Part 2 of the HRA identified in the course of a Commission inquiry.
17.5 Ironically, notwithstanding the proscription against the
Commission’s involvement in immigration matters, individuals who
can
afford to, may complain about a breach of the Bill of Rights in relation to
immigration. The best that s.149D (and by extension
cl.350) does therefore is to
deter people with little or no money from challenging their treatment.
17.6 As a result of the amendment to the Human Rights Act in 2001 the
Commission, a complainant or an aggrieved person can take
proceedings to the
Human Rights Review Tribunal questioning discriminatory legislation or action
authorised by an enactment. In such
cases the only remedy available is that the
Tribunal can make a declaration that the enactment is inconsistent with the
right to
freedom from discrimination under s.19 of the NZBoRA. This does not
affect the validity of the enactment but ensures that the inconsistency
is drawn
to the attention of Parliament and a report on the Government’s response
is provided by the responsible Minister.
The effect of both the existing
provision and that proposed in the Bill is to make the Immigration Act the only
piece of legislation
in New Zealand that is exempt from such a challenge.
17.7 If the Committee decides to retain the exception - which the
Commission considers is unnecessary - clause 350 should be amended
to allow the
Commission to accept complaints about the content of the Immigration Act. The
Commission recommends the wording of cl.350
be replaced by the following :
(1) Subject to subsection (2), the Human Rights Commission may perform, in relation to immigration matters, all of its functions (as described in section 5 of the Human Rights Act 1993), including –
(a) making public statements in relation to any matter affecting human rights;
(b) receiving and inviting representations from members of the public on any matter affecting human rights;
(c) inquiring generally into any matter, practice or procedure if it appears to the Commission that the matter involves, or may involve, the infringement of human rights;
(d) reporting to the Prime Minister on any matter affecting human rights.
(2) However, despite anything in the Human Rights Act 1993 no complaint may be made under that Act in respect of-
- (i) the application of this Act or any regulations made under this Act; or
- (ii) the application of any immigration instructions made in accordance with section 20.
(3) This section recognises that immigration matters inherently involve different treatment on the basis of personal characteristics
The Commission recommends that the provision relating to the role of
the Human Rights Commission as it relates to immigration matters
either be
deleted or reworded as suggested.
18.1 New Zealand is currently not a party to the 1954 Convention relating
to the Status of Stateless Persons. Whether it should become so was raised
as an issue during the consultation process. It was seem that there was support
for the idea
but it was decided not to proceed because of the claimed potential
cost.[50]
18.2 The Commission recognises that New Zealand has recently ratified the
1961 Convention on the Reduction of Statelessness. However it also notes
that the 1961 Convention is mainly aimed at avoiding future statelessness by
setting standards for national
laws on the acquisition and loss of nationality.
It permits people to acquire nationality who would otherwise be stateless if
they
have an appropriate link with the State through birth or descent and allows
for the retention of nationality in the case of persons
who would be made
stateless if they inadvertently lose
nationality[51]. The 1961 Convention
therefore has significant limitations.
18.3 While most of those who would be covered by the 1954 Convention are
likely to be granted refugee
status[52], there will still be a
small number of people who will not fit the profile of a refugee. Recent
developments such as the dissolution
of the former Soviet Union and the former
Yugoslavia, for example, have led to more people finding themselves stateless.
While it
is unlikely that large numbers of people in this situation will seek
refuge in New Zealand[53], the
Commission considers it is inappropriate to leave the small number that do in
limbo or dependent on the exercise of ministerial
discretion (which is the only
other option at present).
18.4 As citizenship is the key to protecting rights, stateless people
often do not have access to employment, health care, social
security and
mobility. Chief Justice Earl Warren therefore described being statelessness as
lacking “the right to have rights”:
Trop v
Dulles.[54]
18.5 It could be argued that by not taking steps to alleviate the position of
stateless people, a State violates the universal anti-discrimination
norm and
the duty to avoid stateless stemming from Article 15 of the Universal
Declaration of Human Rights which guarantees everyone
the right to a
nationality. Ratification of both Conventions would be a significant step
towards guaranteeing the rights of stateless
persons and providing substantive
protection of the individual right to a nationality. It would also affirm the
primacy of the prohibition
against
discrimination[55].
The
Commission recommends that further consideration be given to recommending
ratification of the Convention
19. CONCLUSION
19.1 New Zealand’s interests are best served by the robust
application of human rights standards. While there is no specific
right to
immigration migrants, refugees and visitors to New Zealand are entitled to be
treated in a way that reflects their rights
and acknowledges responsibilities.
19.2 The Commission urges as a priority that particular regard is had for the rights and interests of children and that the legislation specifically incorporates a reference to the Convention on the Rights of the Child and/or the best interests of the child. It also recommends that the reference in the Bill to the Convention Against Torture is reworded so that it does not derogate in any sense from the fundamental obligations in the Convention itself.
18.1 The Commission is encouraged that the proposed legislation reflects a number of the recommendations that were identified in the course of the review, but it considers that the Bill could be improved by making the following changes:
[1] Human Rights Commission Mana
ki te Tangata: The New Zealand Action Plan for Human Rights (2005)
Wellington
[2] Ibid. at 4.5
[3] The values and principles of the Convention recognise the importance of giving priority to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognises that “childhood is entitled to special care and assistance.”
[4] Clauses 338 - 340 address the matter of children and young people under the age of 18 by allowing for the nomination of a responsible adult to represent their interests and their views to be taken into account in relevant proceedings commensurate with their level of understanding and maturity. This is not the same as requiring a State to act in a particular way.
[5] Minister of Immigration,
Immigration Act Review: Overview Paper and Human Rights Issues (3/11/2006)
at para 18
[6] See for example,
s.114(2) Immigration and Refugee Protection Act 2002 (Canada)
[7] UNHRCt General Comment 20 (Forty-fourth Session, 1992); see also Chalal v UK [1996] ECHR 54; [1997] 23 EHRR 413. The prohibition against torture itself is recognised as a principle of jus cogens – the highest form of customary international law which is binding in all circumstances, irrespective of treaty obligations.
[8] See House of Lords, House of
Commons Joint Committee on Human Rights: The UN Convention against
Torture, 19th Report of Session 2005-2006 (2006) Vol. 1 at 12
[9] Ibid.
[10] Manickavasagam Suresh v
Minister of Citizenship and Immigration & the Attorney General of Canada
(Suresh v Canada) [2002] 1 S.C.R 3; 2001
SCC1
[11] [2005] NZSC 38
[12] Attorney General, Legal
Advice – Consistency with the New Zealand Bill of Rights Act 1990:
Immigration Bill (20/7/07) at para 30. The opinion is available at www.justice.govt.nz/bill-of-rights/bill-list-2007/i-bill/immigration-bill
[13]
Clause 30
[14]“Likely” is a
difficult test. Whether the law is violated often depends on the enthusiasm of
those charged with enforcing
it: G Huscroft ‘Defamation, Racial Disharmony
and Freedom of Expression’ in Huscroft & Rishworth (eds) Rights and
Freedoms, Brookers (1995) at
205
[15] Clauses 34 & 35
[16] Clause
231
[17] Clause
222(2)
[18] Clause 35(3)
[19]For example, the criteria under s.18(c)(i) of the Official Information Act which allow the provision of information to be refused in certain circumstances.
[20]The explanatory note to the Bill states that cls.9 and 10 essentially repeat s. 7 Immigration Act 1987 but with broader exclusion criteria. However, the proposed legislation is not as explicit about linking to international circumstances activities that might be considered a danger to security or a risk to public order.
[21]‘Female migration:
Bridging the Gaps through the Life Cycle’ UNFPA-IOM Expert Group Meeting
May 2006, 3
[22] Ibid., at
4
[23]Onshore visa applications,
residence visas and deportation
matters
[24] [2004] UKHL 56 per
Lord Rodger of Earlsferry at [181]
[25]Section 27(1) NZBoRA (the right to the observance of the principles of natural justice)
[26] Attorney General, Legal Advice – Consistency with the New Zealand Bill of Rights Act 1990: Immigration Bill (20/7/07) at para 146. The opinion is available at www.justice.govt.nz/bill-of-rights/bill-list-2007/i-bill/immigration-bill.
[27] Submission of the Office of the High Commissioner for Refugees, Review of New Zealand’s Immigration Act 1987 (2006) at para 19
[28]UK Parliament, Joint Committee on Human Rights - Nineteenth Report, Session 2006-07 (2007) at para 192
[29] Ibid., at para 196; see also
C Forcese & L Waldman Seeking Justice in an Unfair Process: Lessons from
Canada, the United Kingdom and New Zealand on the use of “Special
Advocates”
in National Security Proceedings, University of Ottawa
(2007)
[30] Ibid., at para
200
[31] Clause 235(2)
[32]Similar suggestions have been
made by both the UK Joint Committee (supra) and the Special Senate Committee of
the Canadian Parliament
(see Fundamental Justice in Extraordinary Times: Main
report of the Special Senate Committee on the Anti-Terrorism Act, February
2007 at pp.35-36 and 42)
[33]
Cl.44(2)
[34] Kofi Annan UN Secretary
General, Protection of Human Rights and Fundamental Freedoms while Countering
Terrorism A/58./266, 8 August 2003 at para 47
[35] [2004] UKHL
55
[36] Section 21(1) HRA
1993
[37]That is in relation to deportation, recognition as a refugee or protected person, appeal or detention: Cl.338(2)
[38] UNHCR Protection Mechanisms Outside of the 1951 Convention (“Complementary Protection”) Legal and Protection Policy Research Series (2005) available at www.unhcr.org/protect at viii. Cl.122(b) is premised on the assumption the person seeking protection must be able to establish that they would face torture, arbitrary deprivation of life or cruel treatment in every part of their country of origin. What this means in practice can be problematic. See, for example the discussion in Canadian Legal Services Board, Persons in need of Protection: Risk to Life or Risk of Cruel and Unusual Treatment or Punishment Legal Services, Immigration & Refugee Board (2002) at www.irb-cisr.ca/en/references/legal/rpd./cgrounds/life
[39] UNHCR Complementary Forms of Protection: Their Nature and Relationship to the International Refugee Protection Regime (EC/50/SC/CRP.18) 19th June 2000
[40] Amnesty International have
suggested the following definition based on the Council Directive 2004/83/EC of
the European Union ... an applicant must demonstrate that there is a real
chance that, if returned to his or her country of origin the applicant would
face serious harm. (Serious harm would involve but not be limited to the
death penalty or execution; torture or inhuman or degrading treatment or
punishment
or serious an individual threat to a civilian’s life or person
by reason of indiscriminate violence in situations of international
or internal
armed conflict: Amnesty International: Review of New Zealand’s
Immigration Act 1987 (2007)
[41] Summary Offences Act 1981
s.11
[42] Summary Offences Act
1981 s.29
[43] As a result of the
combination of cls.44(2) & 146(5)(a)
[44] Minister of Immigration,
Immigration Act Review: Overview Paper and Human Rights Issues (3/11/2006)
at para 18
[45] [1999] 2 S.C.R
817
[46] Ibid., para 71 per
Madam Justice L’Heureux-Dube
[47] Section 114(2) Immigration
Act was amended by the Immigration and Refugee Protection Act in 2002 to confer
a discretion on the Minister
in deciding whether compassionate or humanitarian
grounds apply to take into account the best interests of a child directly
affected
or public policy issues.
[48] A v Australia (1997)
4 BHRC 210 (HRC)
[49] Supra,
fn10 at para 79
[50]
Immigration Act Review: Summary of Cabinet Decisions (2006) at 8
[51] A Brouwer, Statelessness
in the Canadian Context; A Discussion Paper (2003) 18 available at www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=405f07164
[52] Many States did
not ratify the 1954 Convention because they considered the Refugee Convention
would provide adequate protection:
J Hathaway, The Law of Refugee Status
Butterworths, Canada (2001) at 59
[53] There is no evidence that
statelessness claims increase in countries that ratify the Convention. Supra (fn
6) at 42
[54] [1958] USSC 57; 356 U.S 86 (1958)
(USSC) at 102
[55] Human
Rights and Legal Identity: Approaches to Combating Statelessness and Arbitrary
Deprivation of Nationality, Thematic Conference paper: Open Society Justice
Initiative (2006)
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