Turei Metiria: Immigration Amendment Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee Third Reading 
Turei Metiria: Immigration Amendment Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee Third Reading 
[Volume:609;Page:6816] 
METIRIA TUREI (Green) 
: The Greens are completely opposed to this bill. None of our concerns have been dealt with at all in the explanations from the Minister or the Government members. We have two main issues: firstly the extraordinary level of discretionary power given to immigration officials and secondly the retrospective stripping of a just process from the applicants. 
This bill gives the Immigration Service an extraordinary level of discretion which is way beyond what is needed to fulfil its requirements. The Immigration Service has total discretion over the order and manner of processing applications. That process can change at any time by general instructions given by the chief executive and in addition immigration officials are entitled to follow those instructions but cannot be held to account if they do not follow them. It is entirely inappropriate for a level of discretion such as that to reside in an officer and for the criteria that govern how applications are to be dealt with to be determined entirely in-house with no oversight or review by the public. Such a level of individual control over the application of the criteria is unjustifiable and there has been no explanation at all as to why Immigration Service officers should have such a level of discretion. 
I have been told previously by officials that the reason that much of the immigration process and policy is done through departmental policy rather than through legislation or regulation is that it has always been done that way. That is not an acceptable process in a democratic society such as ours. That is not the way that such a serious and important question as immigration should be determined. Immigration has an enormous impact first on the tangata whenua of this country and second on the whole of the New Zealand public. It should not be determined outside of public scrutiny and with no consultation or public discussion. 
To compound the problem of the extraordinary level of discretion is the fact that there is absolutely no opportunity to appeal the use of that power. No applicant is able to hold an immigration officer to account for failing to apply the criteria as he or she had been instructed to do. Officers are not legally required to process applications in any particular manner or order whether or not that process is consistent with the general instructions given by the chief executive. That means an officer can process an application in accordance with the general instructions or not do so entirely at his or her own discretion and there is no means to object to that. There is no control at all in the legislation on the potential use or abuse of those powers. 
By their very nature immigration applicants are in a very vulnerable position especially if they are from developing countries where English is not necessarily the first language or are in circumstances that create an environment of urgency for them. In the light of the imbalance in the power relationship between applicants and immigration officers respectively it is only just that applicants should not be subjected to an unfettered individual discretion over the application of rules that can change mid-application and without notice. Those circumstances open up the service to very real allegations of corrupt and discriminatory actions. We would have thought that there would at least be protections in the bill to avoid the possibility of such allegations if only to protect the immigration officials themselves. But there is no such protection either for the department or for the applicants. That is untenable and unjust. 
We also object to the automatic lapsing of existing applications notwithstanding the option for applicants to reapply. That is not the way to deal with the backlog of applications or more importantly with the people and the families who are applicants. Those people have in good faith met the obligations of the Government immigration policy paid their money and are now arbitrarily deprived of a due process. That provision is not necessary. Those people should not be punished for mistakes made by the Government in the allocation of resources to the Immigration Service. We support the principle that applications should be dealt with under the provisions that applied at the time an application was made. In order to prevent the huge rush of applications that occurs when any new policy on immigration is announced the legislation should have simply stated that the new process applied to any application lodged as of 1 July 2003. That would have ensured that those already in the system were dealt with fairly while being clear and fair to those who lodge new applications. The Minister intends to refund application fees of about $9 million. That money would be much better spent on dealing with the backlog of applications in a fair and just way. 
It is with a great deal of frustration and exasperation that we remind the Government once again that it has made a very significant decision without any consultation or discussion with Maori over the issue. Immigration is a fundamental issue of sovereignty and decision making. The Government asserts its right to determine immigration issues as part of the sovereignty it claims through the Treaty of Waitangi and the establishment of the Government. But the treaty was between two parties and immigration is and remains a treaty issue. It may even be described as the first treaty issue being the process by which new people come to this country. But again the interests of Maori have been ignored and undermined. I note also that the whole of the New Zealand public Maori and non-Maori have been excluded from the process. I want simply to bring to the attention of the public that Maori have suffered such a level of disregard at all levels in virtually all matters in the legislative process. 
Immigration policies should be based on the Government’s obligations under Te Tiriti o Waitangi and on the social and economic needs of the country addressed in such a way as not to compromise ecological sustainability and the protection of our natural heritage. Such a policy must also be just and transparent and not merely a means by which to select the elite from other countries. If the Government truly had confidence in this new policy and process it would not be using the urgency process to push it through. Also the details of the process would be clear and transparent in the legislation the powers of officers would be explicitly prescribed and there would be a right of appeal in order to protect the human rights of those in the process. Clearly the Government does not have confidence in this legislation and neither should the New Zealand public.