Immigration Amendment Act 2013

1: Title
This Act is the Immigration Amendment Act 2013.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Principal Act
This Act amends the Immigration Act 2009 principal Act 2013-06-19 Immigration Act 2009
1: Substantive amendments
4: Section 4 amended (Interpretation)
1: In section 4 mass arrival group section 9A .
2: In section 4 warrant of commitment warrant of commitment
a: means a warrant of commitment issued under section 317, 318, or 323; and
b: includes—
i: a mass arrival warrant issued under section 317B
ii: a further warrant of commitment issued under section 317E(1)(a) .
5: New section 9A inserted (Meaning of mass arrival group)
After section 9
9A: Meaning of mass arrival group
1: In this Act, mass arrival group
a: on board the same craft; or
b: on board the same group of craft at the same time; or
c: on board the same group of craft and within such a time period or in such circumstances that each person arrived, or intended to arrive, in New Zealand as part of the group.
2: In subsection (1) craft
6: Section 26 amended (How claims and applications for visas and entry permission processed)
1: After section 26(3)
3A: Subsection (3) applies unless regulations made under section 400 require otherwise.
2: In section 26(10)(b) transit visas ; or
3: After section 26(10)(b)
c: regulations made under section 400.
7: New section 135A inserted (Suspension of determination of claim)
After section 135
135A: Suspension of determination of claim
1: This section applies to a claim if the processing of the claim is suspended in accordance with regulations made under section 400.
2: For the duration of the suspension, a refugee and protection officer must not—
a: determine the claim in accordance with sections 136 and 137; or
b: make a decision on the claim in accordance with section 138.
8: Section 140 amended (Limitation on subsequent claims)
1: In section 140(1) as a refugee or a protected person
2: In section 140(1)(b)(ii) section 129 any of sections 129 to 131
3: Replace section 140(3)(b)
b: repeats any claim previously made (including a subsequent claim).
9: Section 233 replaced (When Tribunal must or may provide oral hearing)
Replace section 233
233: When Tribunal must or may provide oral hearing
1: The Tribunal must provide an oral hearing in the case of an appeal against liability for deportation by a resident or permanent resident.
2: The Tribunal may, in its absolute discretion, provide an oral hearing in any other appeal against liability for deportation.
3: The Tribunal must provide an oral hearing in the case of an appellant or affected person currently or previously recognised as a refugee or a protected person, or a claimant for such recognition, unless—
a: the person was interviewed by a refugee and protection officer (or a refugee status officer under the former Act) in the course of determining the relevant issue at first instance or, having been given an opportunity to be interviewed, failed to take that opportunity; and
b: the Tribunal considers that the appeal or other contention of the person—
i: is prima facie manifestly unfounded or clearly abusive; or
ii: relates to a subsequent claim for refugee or protection status.
4: The Tribunal may, in its absolute discretion, provide an oral hearing in the case of an appeal that relates to a subsequent claim for refugee or protection status.
10: Section 249 amended (Restriction on review)
Replace section 249(1)
1: No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
1A: No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.
1B: Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (1A)
1C: In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—
a: whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
b: if paragraph (a)
11: Section 307 amended (Purpose of Part)
In section 307
2: The purposes of the warrant of commitment regime for members of a mass arrival group under this Part are—
a: to provide a practicable and administratively workable time period within which arrival processing of the mass arrival group can be completed; and
b: to provide a practicable and administratively workable time period within which any threat or risk to security or to the public arising from, or that may arise from, the members of the mass arrival group, whether collectively or individually, may be properly assessed; and
c: to avoid disrupting the efficient functioning of the Department, the courts, or any prison or premises identified in a relevant warrant of commitment.
12: New sections 317A to 317E inserted
After section 317
317A: Application for mass arrival warrant
1: An immigration officer may apply to a District Court Judge for a warrant of commitment authorising the detention, for a period of not more than 6 months, of the members of a mass arrival group (a mass arrival warrant
a: the warrant is necessary—
i: to effectively manage the mass arrival group; or
ii: to manage any threat or risk to security or to the public arising from, or that may arise from, 1 or more members of the mass arrival group; or
iii: to uphold the integrity or efficiency of the immigration system; or
iv: to avoid disrupting the efficient functioning of the District Court, including the warrant of commitment application procedure; and
b: the members of the mass arrival group are detained in custody under this Part; and
c: it becomes apparent that, before the expiry of the period for which detention is authorised, 1 or more of the circumstances described in paragraphs (a) to (d) of section 316(1) will apply to each member of the mass arrival group.
2: Every application under this section must—
a: be made on oath; and
b: include—
i: the number of persons to whom the warrant is to apply; and
ii: identity information in respect of each of the persons; and
iii: particulars of the craft, or of each of the group of craft, on which the persons arrived (if known); and
iv: a description of the circumstances in which the craft, or the group of craft, arrived; and
c: include a statement of—
i: why the warrant is necessary in terms of subsection (1)(a)
ii: how subsection (1)(c)
3: An application under this section may, but is not required to, include any other supporting evidence or information relating to the members of the mass arrival group.
4: The Judge must determine an application under section 317B
5: Nothing in this section permits an immigration officer to include a person under 18 years of age in an application for a mass arrival warrant unless the person has a parent, guardian, or relative who is a member of the mass arrival group.
6: In subsection (2)(b)(ii) identity information
a: a name of the person (which may be the name that the person is known by or a name assigned to the person):
b: biometric information in relation to the person:
c: a physical description of the person.
317B: Decision on application for mass arrival warrant
1: On an application for a mass arrival warrant under section 317A
a: if satisfied of the matters in subsection (2) subsection (3)
b: if not satisfied of the matters in subsection (2) subsection (4)
2: The matters are that—
a: the application relates to a mass arrival group; and
b: the warrant is necessary for 1 or more of the reasons stated in section 317A(1)(a)
c: 1 or more of the circumstances described in paragraphs (a) to (d) of section 316(1) will apply in respect of each member of the mass arrival group; and
d: the requirements of section 317A(2)(a) to (c)
3: The Judge must issue the warrant in the prescribed form authorising the detention of each member of the mass arrival group in a place or the places named in the warrant—
a: for the period sought in the application; or
b: for a specified shorter period, if he or she is satisfied that, after the expiry of the shorter period,—
i: the reasons for the necessity of the warrant in terms of section 317A(1)(a)
ii: the circumstances described in paragraphs (a) to (d) of section 316(1) will no longer apply in respect of each member of the mass arrival group.
4: The Judge must—
a: treat the application as if it were applications made under section 316 in respect of each member of the mass arrival group; and
b: determine the applications in accordance with subsection (3) of that section.
317C: Variation of mass arrival warrant
1: If a mass arrival warrant is issued under section 317B section 317A
2: Every application under this section must—
a: be made on oath; and
b: include—
i: a copy of the original application and warrant; and
ii: identity information (within the meaning of section 317A(6)
iii: a statement of how section 317A(1)(c)
3: On an application under this section, a District Court Judge must,—
a: if satisfied of the matters in subsection (4) subsection (5)
b: if not satisfied of the matters in subsection (4) subsection (6)
4: The matters are that—
a: the persons are members of the mass arrival group; and
b: 1 or more of the circumstances described in paragraphs (a) to (d) of section 316(1) will apply in respect of each of those persons; and
c: the requirements of subsection (2)
5: The Judge must vary the existing warrant to include the persons specified in the application, but must not extend the period of the warrant.
6: The Judge must—
a: treat the application as if it were applications made under section 316 in respect of each person the immigration officer has sought to be included in the mass arrival warrant; and
b: determine the applications in accordance with subsection (3) of that section.
7: Nothing in this section permits an immigration officer to include a person under 18 years of age in an application for a variation of a mass arrival warrant unless the person has a parent, guardian, or relative who is a member of the mass arrival group.
317D: District Court may impose reporting requirements
1: When issuing a mass arrival warrant under section 317B section 317C section 317A(1)(a)
2: A District Court Judge may shorten the period of a mass arrival warrant or a varied mass arrival warrant, and vary the warrant accordingly, if, after receiving a report, he or she is satisfied that those reasons will no longer apply after the expiry of the shortened period.
317E: Application for further warrant of commitment in respect of mass arrival group
1: An immigration officer may apply to a District Court Judge for a further warrant of commitment authorising the continued detention of—
a: all or specified members of a mass arrival group, as members of a mass arrival group; or
b: 1 or more members of a mass arrival group as individuals.
2: An application for a further warrant of commitment under subsection (1)(a)
a: comply with section 317A(2)
b: be determined by a District Court Judge in accordance with section 317B
3: An application for a further warrant of commitment under subsection (1)(b)
4: If a member of a mass arrival group is dealt with under subsection (3)
a: he or she—
i: is no longer to be treated as a member of a mass arrival group for the purposes of this Act; and
ii: must, from the time of the Judge's determination, be dealt with under this Act as any other individual would be; and
b: the Judge must consequentially amend the warrant of commitment relating to the mass arrival group to exclude the member from the warrant.
5: Subsection (4)(a)
13: Section 324 amended (Review of warrant of commitment or release on conditions)
1: In section 324
1AA: In this section, warrant of commitment
a: a mass arrival warrant issued under section 317B
b: a further warrant of commitment issued under section 317E(1)(a)
2: In section 324(6) in accordance with having regard to
14: New section 324A inserted (Review of mass arrival warrant)
After section 324
324A: Review of mass arrival warrant
1: In this section, warrant of commitment
a: a mass arrival warrant issued under section 317B
b: a further warrant of commitment issued under section 317E(1)(a)
2: At any stage during the currency of a warrant of commitment, an immigration officer may apply to a District Court Judge for a variation of the warrant for either or both of the following reasons:
a: to shorten the period that the warrant applies:
b: to provide for 1 or more persons detained under the warrant to be detained in a place or places other than the place or places currently specified in the warrant for those persons.
3: An application made under subsection (2)
a: be made on oath; and
b: include—
i: a copy of the warrant to be varied; and
ii: a statement of the reasons for the application.
4: On an application under subsection (2)(a)
a: to the period sought in the application; or
b: to a specified shorter period, if he or she is satisfied that, after the expiry of the shorter period,—
i: the reasons for the necessity of the warrant in terms of section 317A(1)(a)
ii: the circumstances described in paragraphs (a) to (d) of section 316(1) will no longer apply in respect of each person subject to the varied warrant.
5: On an application under subsection (2)(b)
6: At any stage during the currency of a warrant of commitment, an immigration officer may, in respect of a particular individual detained under the warrant, apply to a District Court Judge for—
a: a warrant of commitment for the individual as an individual; or
b: an order that the individual be released on conditions under section 320; or
c: an order that the individual be released.
7: An application for a warrant of commitment under subsection (6)(a)
8: An application for release on conditions under subsection (6)(b)
9: If a member of a mass arrival group is dealt with under subsection (6)
a: he or she—
i: is no longer to be treated as a member of a mass arrival group for the purposes of this Act; and
ii: must, from the time of the Judge's determination, be dealt with under this Act as any other individual would be; and
b: the Judge must consequentially amend the warrant of commitment relating to the mass arrival group to exclude the member from the warrant.
10: Subsection (9)(a)
15: Section 343 amended (Aiding and abetting)
1: In section 343(1)(b) (by arriving in New Zealand in a manner that does not comply with section 103 or by arriving in New Zealand without holding a visa where the other person requires a visa to travel to New Zealand)
2: After section 343(2)
3: For the purposes of subsection (1)(b), a person unlawfully enters New Zealand if the person—
a: arrives in New Zealand in a manner that does not comply with section 103; or
b: arrives in New Zealand without holding a visa, if the person requires a visa to travel to New Zealand; or
c: arrives in New Zealand as the holder of a visa but the visa was—
i: granted in a false identity; or
ii: procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
d: is granted a visa on arrival in New Zealand but the visa is—
i: granted in a false identity; or
ii: procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
e: is granted entry permission but the entry permission is—
i: granted on the basis of a visa granted in a false identity; or
ii: procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
f: enters New Zealand in any other manner and, in doing so, does not comply with the requirements of this Act.
4: To avoid doubt, a person unlawfully enters New Zealand within the meaning of subsection (3)
16: Section 403 amended (Regulations in respect of refugee and protection matters)
1: After section 403(k)
ka: specify, by reference to 1 or both of the following matters, the claims that a refugee and protection officer must not process or determine or make a decision on under sections 136 to 138:
i: common circumstances or common characteristics of the claims:
ii: common circumstances or common characteristics of the claimants making the claims: .
2: In section 403
2: No regulations may be made under section 400 in respect of the matters specified in subsection (1)(ka)
a: has recommended the making of the regulations to the Governor-General; and
b: before doing so, is satisfied that the regulations are necessary for 1 or both of the following reasons:
i: there are problems in accessing information or assessing information that is relevant to determining or making a decision on the claims to be specified in the regulations:
ii: the circumstances to which the claims to be specified in the regulations relate, or the circumstances of the claimants making those claims, are otherwise of a nature, or subject to such a degree of change or uncertainty, that determination or decision of the claims under sections 136 to 138 is unlikely to produce a robust outcome.
3: Regulations made under section 400 in respect of the matters specified in subsection (1)(ka)
a: are deemed to be revoked on the date that is 6 months after their commencement or on any earlier date specified in the regulations; and
b: have no continuing effect after the date on which they expire.
2: Consequential amendments
17: Consequential amendments to principal Act
Amend the principal Act as set out in Schedule 1
18: Consequential amendments to Immigration (Certificate and Warrant Forms) Regulations 2010
1: This section amends the Immigration (Certificate and Warrant Forms) Regulations 2010
2: After regulation 6(2)
3: A warrant of commitment issued by a District Court Judge under section 317B(3) or 317E(1)(a) form 5
3: In the Schedule form 4 Schedule 2 2013-06-19 Immigration (Certificate and Warrant Forms) Regulations 2010