Friday October 19, 2007

The Law Society says law changes to allow wider use of secret information in immigration decisions is "a Kafka-esque nightmare" and contrary to fundamental principles of fairness.

Peter Moses, representing the Law Society in its submission on the Immigration Bill to the transport and industrial relations select committee, said the use of classified information in refugee and protected-person cases in particular was unfair.

"Knowing the case against you is a cornerstone of procedural justice. The reliance on secret information proposed in the bill is a fundamental departure from established legal principle and is a major concern to us."

Such information is kept from the person it relates to, and the use of it became controversial after a security risk certificate was issued against Algerian refugee Ahmed Zaoui on the basis of information which could not be revealed to him.

The new law will allow such classified information to be used in a wide range of immigration decisions, including by the Immigration Protection Tribunal considering refugee or protected-person claims, and by the Minister of Immigration in decisions on visas, entry permits and deportation orders.

The new law does introduce some safeguards - including providing a summary of the information to the person where possible, and allowing a "special advocate" to be briefed on the information and represent the person.

Mr Moses said rejecting someone applying to visit as a tourist or student because of classified information which revealed involvement in drug smuggling, for example, was justifiable.

But the highest standards of fairness must apply to people trying for refugee status or to enter as protected people because fundamental rights of life and liberty were at stake.

"In our view the bill and the use of secret information would undermine that."

Mr Moses used the example of a person claiming refugee status from a fictitious military dictatorship called Ruatania "which shoots monks in the street".

Classified information suggested illegal activity but the claimant was unable to rebut it or question its veracity because he could not be told the source or nature of the information.

"It is a Kafka-esque nightmare and the society remains fundamentally uncomfortable with that approach."

Under the new law detention is no longer automatic, but the current law provides for automatic detention once a security risk certificate is issued.

Mr Moses said the special advocates' legal duties to such clients would be compromised by the bill, because of the restrictions on their ability to fully communicate with their client once the advocate knew the details of the information.

The bill, which will form the basic framework of future immigration decisions, also strengthens border protection, including allowing biometric testing before someone boards a plane to New Zealand, and streamlines and clarifies the process for deportation.

Mr Moses also said the bill gave very broad powers to immigration officials - including of detention - and said an Immigration Commissioner was needed to monitor the use of those powers and investigate any complaints of their abuse.

(Source Claire Trevett)