Cunliffe David: Immigration Bill — In Committee 
Cunliffe David: Immigration Bill — In Committee 
[Volume:657;Page:6752] 
Hon DAVID CUNLIFFE (Labour—New Lynn) 
: 
 I rise to take a call on Part 5 “Refugee and protection status determinations”. In doing so I want to make two statements of the obvious to start with. The first is that there has been a strong tradition of bipartisan support for refugee policy in New Zealand and largely for protection policy. Refugees are amongst the most vulnerable in our society. Many of them come here having endured things that most of us could not imagine and their challenge of adapting to a new society is made all the more difficult because of the scars that they bear from their former experience. 
Refugee policy is too easy as my colleague the Hon Lianne Dalziel has said to play politics with because the level of resources that is invested in the settlement of refugees is sometimes considerable. For that reason I am pleased that across the major parties we have maintained a steady quota of refugees and a good bipartisan approach to this policy; long may it continue. 
The second statement of the obvious is that much of Part 5 is very very positive. It represents the bipartisan contributions as I said in the Part 2 debate of several Ministers and Governments—that the history of this Act reflects the need to strengthen border protection and then to balance those protections with improved human rights protections. I will give a couple of examples but I do want to state at the outset that the Opposition is opposing the Supplementary Order Paper provisions for Part 5 and I will outline why. 
Several of the things that we think are very positive in terms of this part reflect the travel of this bill through first the executive and then the select committee. The bill extends protections to include the Convention Against Torture—the so-called CAT—and the International Covenant on Civil and Political Rights. This is something that both Governments have strongly supported and I welcome that. The select committee has further amended the wording of the bill so that as reported back the wording of the claims under the Convention Against Torture are more accurately representative of the convention and that is to be welcomed. The requirement has been removed that a protection claimant must show that torture arbitrary deprivation of life or cruel treatment is not faced generally by other persons in the claimant’s home country in order to be granted protection status. The burden of proof was always very high in that regard and on balance it is a good thing that that has been removed. 
Also in Part 5 there are changes to the roles of determination officers. A determination officer may not in the bill as introduced consider a subsequent refugee or protection claim unless satisfied that there has been a significant change in circumstances or that the change was not brought about by the claimant for the purpose of creating grounds for recognition. That has been amended by the select committee. A refugee and protection officer may not consider a subsequent refugee claim unless satisfied that those conditions apply but it now does not apply to a protection claim. That amendment liberalises the legislation somewhat and is to be welcomed. 
Now we get to the slightly difficult bits. First the bill as reported back from the select committee recommends that refugee and protection officers make first instance decisions on refugee and protection claims using classified information. That seems to me to be at odds with the structure of the more general provisions of the bill for the use of classified information which hold that where they are used without corroborating open source evidence a special process must be set up and special protections applied including an advocate and so forth. In the bill as introduced the protection existed that the use of classified information under this part had to be done by a tribunal. I fail to see the rationale why that has now been generalised to allow any front-line refugee and protection officer to gain access to and use classified information apparently without open source corroboration in the absence of those special procedures. I welcome the Minister’s clarification on that point. 
Now we come to Supplementary Order Paper 32 on Part 5. Taken as a group four important amendments are proposed in the Supplementary Order Paper which Labour believes have been generated mainly as a response to certain individual cases. Cases like the Ali Panah case and perhaps the Thomas Yadegary case—both cases are of Iranian Christians—spring to mind. We are firmly of the view that hard cases make bad law. It is just too clumsy to write into the principal Act a specific set of prohibitions that would get around the particulars of one or two difficult cases. This has all the hallmarks of ensuring that no one gets it over the department again like those two did. That is not a first-principles argument and I do not think it is worthy of the level of thought that has gone into other aspects of the bill. 
Here are the substantive problems with it. Firstly the Supplementary Order Paper states that an implied rather than a stated waiver of confidentiality in refugee and protection decisions exists where a refugee protected person or claimant puts information about his or her case in the public realm. There is not an express but an implied waiver. The difficulty with that is that there are many ways—Lord knows politicians should be aware of this—in which things can reach the public realm not always with a great deal of forethought sometimes without knowledge and certainly without malice. The problem with an implied waiver is that it is subjective. It is the officer of the department who is making a decision that something is implied and it lacks the due protections that should exist. 
If that clause did not raise enough risk on its own when it is put together with the clauses that follow in the Supplementary Order Paper refugee and protection decisions can be released. It is not OK for the claimant to put his or her information in any way in the public domain by accident or design without a waiver of his or her rights but it is perfectly OK for the department to do it. What is fair about that? The bill lacks protections and it impinges on human rights. 
The third clause states that where a foreign national creates the grounds for a refugee status claim in bad faith his or her claim can be declined for consideration. Who decides whether something is in bad faith? And how is bad faith defined precisely in the Act? I know who is making the judgment; the refugee and protection officer is making the judgment. I know—and I think I acknowledged in the earlier part of the debate—that departments of State are not perfect. Most of our individuals get up every day and they go to work to do the best job they can but they make mistakes. This is a subjective test. It is one thing to decline after consideration but this provision declines for consideration. If the refugee and protection officer gets out of the wrong side of the bed in the morning and thinks someone has acted in bad faith because the officer does not like the cut of his or her jib his or her case will not be heard. The case will be declined for consideration. Of course he or she could appeal but that is a difficult process and there is only one shot at it. That makes the protections so much weaker. 
The fourth clause states that it does not matter whether any number of people deemed to be the claimant’s friends or supporters stand up and say that the person is a wonderful person. Take the Yadegary case which I was involved with as a member of Parliament before having to recuse from it as a Minister. There was no end of people—if I recall correctly—in the Catholic Church who said that the young man was a genuine convert had been for years and was active in the church long before his case was held. This amendment states that that material could not be considered. Well how on earth is that fair when the original officer is making a subjective decision when the claimant has no rights because anything he or she says implies a waiver of confidentiality and when any supporter he or she may have cannot be taken in account because he or she is a priori excluded? 
I understand why these provisions are here but I think they go too far. They expose the department to risk and they expose the Minister of Immigration to unnecessary risk. I ask that the Minister in the chair Dr Jonathan Coleman reconsider the amendments. Labour will not be supporting the amendments to this part. Thank you.