Following on from my recent post about the problems with applying for visas offshore, here’s another example of how Immigration is chipping away at what is often called the “right to natural justice” for people in New Zealand without a visa – otherwise known as overstayers.

Someone inside New Zealand whose visa has expired and who wants to get it back can make a request for a new visa under section 61 of the Immigration Act 2009.  Immigration can decide whether or not to grant a visa at its “absolute discretion”.  This term is important because it means, among other things, that if an officer decides to look at the case they do not have to give the reasons for their decision to the applicant.

The reality is that in the past they had to follow a process which included making notes on the file about how they came to their conclusion.  People have quite often asked for a copy of the computer records after a section 61 case was declined, and filed complaints or even gone to Court claiming that a decision was deficient.

In November 2011 Immigration New Zealand issued new instructions to its staff not to record any reasons for their decisions anywhere on INZ’s systems.  This would make it impossible to argue with the decision because there would be no reasons to investigate or complain about.  In official statements, management has said that this makes the section 61 process more consistent with the scheme of the Immigration Act.  In fact, the internal correspondence which I have seen shows that the main motivation for this was in order to prevent people from filing complaints and Judicial Reviews.

The Council for Civil Liberties has picked up this issue as well, as recorded in a recent New Zealand Herald story.  The Immigration Committees of the Law Society and the NZ Association for Migration and Investment Policy Committee have been working together to oppose this change in policy.  As Chairman of NZAMI I have gone into print about it already.

At a meeting with the new Minister of Immigration at the beginning of March I pointed out that one of the big dangers with this “no reasons, no records” approach is the potential for massive corruption among Immigration staff.  Imagine what someone could do if they did not have to record anywhere why they had made a decision a certain way.  INZ already has a rather shaky record on this front.  In 2010 some 34 staff were being investigated for “systems misuse, misconduct and corruption.”

No doubt some INZ staff get considerable temptations put in their way.  After all, the stakes for migrants can be very high, and some come from countries where paying a financial incentive is the way to get things done.  All the more reason, then, to remove any mechanism which could lead to widespread abuse of power – and the section 61 process as it exists now is definitely one of those.